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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
National Gas (New South Wales) Bill
2008
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Interpretation 2
4 Crown to be bound 2
5 Application to coastal waters 2
6 Extra-territorial operation 3
Part 2 National Gas (NSW) Law and National Gas (NSW)
Regulations
7 Application in New South Wales of National Gas Law 4
8 Application in New South Wales of regulations under
National Gas Law 4
9 Interpretation of expressions in National Gas (NSW) Law
and National Gas (NSW) Regulations 4
b2007-116-31.d12
National Gas (New South Wales) Bill 2008
Contents
Page
Part 3 Cross vesting of powers
10 Conferral of powers on Commonwealth Minister and
Commonwealth bodies to act in this State 6
11 Conferral of powers on Ministers of participating States
and Territories to act in this State 6
12 Conferral of functions or powers on State Minister 6
Part 4 Miscellaneous
13 Exemption from taxes 7
14 Actions in relation to cross boundary pipelines 7
15 Conferral of functions and powers on Commonwealth
bodies 8
16 Regulations 8
17 Repeal of Gas Pipelines Access (New South Wales) Act
1998 No 41 8
18 Amendment of Acts 8
19 Amendment of this Act when Offshore Petroleum Act
2006 of Commonwealth commences 9
20 Review of Act 9
Schedule 1 Amendment of Acts 10
Note National Gas Law 12
Contents page 2
New South Wales
National Gas (New South Wales) Bill
2008
No , 2008
A Bill for
An Act to establish a framework to enable third parties to gain access to certain
natural gas pipeline services, to consequentially amend certain other Acts, to repeal
the Gas Pipelines Access (New South Wales) Act 1998; and for other purposes.
Clause 1 National Gas (New South Wales) Bill 2008
Part 1 Preliminary
The Legislature of New South Wales enacts: 1
Part 1 Preliminary 2
1 Name of Act 3
This Act is the National Gas (New South Wales) Act 2008. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Interpretation 7
(1) In this Act: 8
National Gas (NSW) Law means the provisions applying because of 9
section 7. 10
National Gas (NSW) Regulations means the provisions applying 11
because of section 8. 12
South Australian Act means the National Gas (South Australia) Act 13
2008 of South Australia. 14
(2) Words and expressions used in the National Gas (NSW) Law and in this 15
Act have the same respective meanings in this Act as they have in that 16
Law. 17
(3) This section does not apply to the extent that the context or 18
subject-matter otherwise indicates or requires. 19
4 Crown to be bound 20
This Act, the National Gas (NSW) Law and the National Gas (NSW) 21
Regulations bind the Crown, not only in right of New South Wales but 22
also, so far as the legislative power of the Parliament permits, the Crown 23
in all its other capacities. 24
5 Application to coastal waters 25
(1) This Act, the National Gas (NSW) Law and the National Gas (NSW) 26
Regulations apply in the coastal waters of this State as if the coastal 27
waters were within the limits of the State. 28
(2) In this section: 29
adjacent area in respect of the State means the adjacent area of this 30
jurisdiction under the National Gas (NSW) Law (as defined in section 31
9 (1) of this Act). 32
coastal waters, in relation to this State, means any sea that is on the 33
landward side of the adjacent area in respect of the State but is not 34
within the limits of the State. 35
Page 2
National Gas (New South Wales) Bill 2008 Clause 6
Preliminary Part 1
6 Extra-territorial operation 1
It is the intention of the Parliament that this Act, the National Gas 2
(NSW) Law and the National Gas (NSW) Regulations should, so far as 3
possible, operate to the full extent of the extra-territorial legislative 4
power of the State. 5
Page 3
Clause 7 National Gas (New South Wales) Bill 2008
Part 2 National Gas (NSW) Law and National Gas (NSW) Regulations
Part 2 National Gas (NSW) Law and National Gas 1
(NSW) Regulations 2
7 Application in New South Wales of National Gas Law 3
The National Gas Law set out in the Schedule to the South Australian 4
Act, as in force for the time being: 5
(a) applies as a law of New South Wales, and 6
(b) as so applying may be referred to as the National Gas (NSW) 7
Law. 8
8 Application in New South Wales of regulations under National Gas Law 9
The regulations in force for the time being under Part 3 of the South 10
Australian Act: 11
(a) apply as regulations in force for the purposes of the National Gas 12
(NSW) Law, and 13
(b) as so applying may be referred to as the National Gas (NSW) 14
Regulations. 15
9 Interpretation of expressions in National Gas (NSW) Law and National 16
Gas (NSW) Regulations 17
(1) In the National Gas (NSW) Law and the National Gas (NSW) 18
Regulations: 19
adjacent area of another participating jurisdiction means the area that 20
is identified in section 5A of the Petroleum (Submerged Lands) Act 21
1967 of the Commonwealth as being the adjacent area in respect of a 22
State (other than this State) or in respect of the Northern Territory. 23
adjacent area of this jurisdiction means the area that is identified in 24
section 5A of the Petroleum (Submerged Lands) Act 1967 of the 25
Commonwealth as being the adjacent area in respect of this State. 26
Court means the Supreme Court of New South Wales. 27
designated Minister means the Commonwealth Minister. 28
Legislature of this jurisdiction means the Parliament of New South 29
Wales. 30
National Gas Law or this Law means the National Gas (NSW) Law. 31
this jurisdiction means the State of New South Wales. 32
(2) The Acts Interpretation Act 1915, and other Acts, of South Australia do 33
not apply to: 34
(a) the National Gas Law set out in the Schedule to the South 35
Australian Act in its application as a law of New South Wales, or 36
Page 4
National Gas (New South Wales) Bill 2008 Clause 9
National Gas (NSW) Law and National Gas (NSW) Regulations Part 2
(b) the regulations in force for the time being under Part 3 of the 1
South Australian Act in their application as regulations in force 2
for the purposes of the National Gas (NSW) Law. 3
Page 5
Clause 10 National Gas (New South Wales) Bill 2008
Part 3 Cross vesting of powers
Part 3 Cross vesting of powers 1
10 Conferral of powers on Commonwealth Minister and Commonwealth 2
bodies to act in this State 3
(1) The Commonwealth Minister and the Commonwealth bodies have 4
power to do acts in or in relation to this State in the performance or 5
exercise of a function or power expressed to be conferred on them 6
respectively by the national gas legislation of another participating 7
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 and Territories 14
to act in this State 15
The Minister of a participating jurisdiction has power to do acts in or in 16
relation to this State in the performance or exercise of a function or 17
power expressed to be conferred on the Minister by the national gas 18
legislation of another participating jurisdiction. 19
12 Conferral of functions or powers on State Minister 20
If the national gas legislation of another participating jurisdiction 21
confers a function or power on the Minister, the Minister: 22
(a) may perform that function or exercise that power, and 23
(b) may do all things necessary or convenient to be done in 24
connection with the performance or exercise of that function or 25
power. 26
Page 6
National Gas (New South Wales) Bill 2008 Clause 13
Miscellaneous Part 4
Part 4 Miscellaneous 1
13 Exemption from taxes 2
(1) Any duty or other tax imposed by or under a law of this State is not 3
payable in relation to: 4
(a) an exempt matter, or 5
(b) anything done (including, for example, a transaction entered into 6
or an instrument or document made, executed, lodged or given) 7
because of, or arising out of, an exempt matter. 8
(2) In this section: 9
exempt matter means a transfer of assets or liabilities: 10
(a) that is made for the purpose of ensuring that a person does not 11
carry on a business of producing, purchasing or selling natural 12
gas or processable gas in breach of any ring fencing requirements 13
of the national gas legislation or for the purpose of the separation 14
of certain businesses or business activities from other businesses 15
or business activities of a person as required by an AER ring 16
fencing determination, and 17
(b) that the Treasurer declares from time to time by notice in the 18
Gazette to be an exempt matter for the purposes of this section. 19
14 Actions in relation to cross boundary pipelines 20
(1) If a pipeline is a cross boundary pipeline, any action taken under the 21
national gas legislation of a participating jurisdiction in whose 22
jurisdictional area a part of the pipeline 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 relation to 25
the action taken by, or in relation to, a relevant Minister, 26
is taken also to be taken under the national gas legislation of each 27
participating jurisdiction in whose jurisdictional area a part of the 28
pipeline is situated (that other legislation): 29
(c) by, or in relation to, a relevant Minister within the meaning of 30
that other legislation, or 31
(d) by the Court within the meaning of that other legislation, 32
as the case requires. 33
(2) Despite subsection (1), no proceeding for judicial review or for a 34
declaration, injunction, writ, order or remedy may be brought before the 35
Court to challenge or question any action, or purported action, of a 36
relevant Minister taken, or purportedly taken, in relation to a cross 37
Page 7
Clause 15 National Gas (New South Wales) Bill 2008
Part 4 Miscellaneous
boundary distribution pipeline unless this jurisdiction has been 1
determined to be the participating jurisdiction with which the cross 2
boundary distribution pipeline is most closely connected. 3
(3) A reference in this section: 4
(a) to an action that is taken includes a reference to: 5
(i) a decision or determination that is made, or 6
(ii) an omission that is made, and 7
(b) to a purported action that is purportedly taken includes a 8
reference to a purported decision or determination that is 9
purportedly made. 10
(4) In this section: 11
cross boundary pipeline means: 12
(a) a cross boundary transmission pipeline, or 13
(b) a cross boundary distribution pipeline. 14
15 Conferral of functions and powers on Commonwealth bodies 15
(1) Clause 2 of Schedule 2 to the National Gas (NSW) Law has effect in 16
relation to the operation of any provision of this Act, or any regulation 17
forming part of the National Gas (NSW) Regulations, as if the provision 18
or regulation formed part of the National Gas (NSW) Law. 19
(2) Subsection (1) does not limit the effect that a provision or regulation 20
would validly have apart from the subsection. 21
16 Regulations 22
(1) The Governor may make regulations, not inconsistent with this Act, for 23
or with respect to any matter that by this Act is required or permitted to 24
be prescribed or that is necessary or convenient to be prescribed for 25
carrying out or giving effect to this Act. 26
(2) The regulations may contain provisions of a savings or transitional 27
nature consequent on the enactment of this Act. 28
17 Repeal of Gas Pipelines Access (New South Wales) Act 1998 No 41 29
The Gas Pipelines Access (New South Wales) Act 1998 is repealed. 30
18 Amendment of Acts 31
Each Act specified in Schedule 1 is amended as set out in that Schedule. 32
Page 8
National Gas (New South Wales) Bill 2008 Clause 19
Miscellaneous Part 4
19 Amendment of this Act when Offshore Petroleum Act 2006 of 1
Commonwealth commences 2
On the commencement of section 7 of the Offshore Petroleum Act 2006 3
of the Commonwealth, the definitions of adjacent area of another 4
participating jurisdiction and adjacent area of this jurisdiction are 5
omitted from section 9 (1) of this Act and the following is inserted 6
instead: 7
adjacent area of another participating jurisdiction means 8
the offshore area of a State (other than this State) or the 9
Northern Territory within the meaning of section 7 of the 10
Offshore Petroleum Act 2006 of the Commonwealth. 11
adjacent area of this jurisdiction means the offshore area 12
of the State within the meaning of section 7 of the Offshore 13
Petroleum Act 2006 of the Commonwealth. 14
20 Review of Act 15
(1) The Minister is to review this Act to determine whether the policy 16
objectives of the Act remain valid and whether the terms of the Act 17
remain appropriate for securing those objectives. 18
(2) The review is to be undertaken as soon as possible after the period of 19
5 years from the date of assent to this Act. 20
(3) A report on the outcome of the review is to be tabled in each House of 21
Parliament within 12 months after the end of the period of 5 years. 22
Page 9
National Gas (New South Wales) Bill 2008
Schedule 1 Amendment of Acts
Schedule 1 Amendment of Acts 1
(Section 18) 2
1.1 Federal Courts (State Jurisdiction) Act 1999 No 22 3
Section 3 Definitions 4
Omit paragraph (e) of the definition of relevant State Act. 5
1.2 Gas Supply Act 1996 No 38 6
[1] Sections 3 (6) and 83 (1) 7
Omit "Gas Pipelines Access (New South Wales) Law or the Gas Pipelines 8
Access (New South Wales) Regulations" wherever occurring. 9
Insert instead "National Gas (NSW) Law or the National Gas (NSW) 10
Regulations". 11
[2] Section 15 (2) and (4) and Dictionary, definition of "natural gas" 12
Omit "Gas Pipelines Access (New South Wales) Law" wherever occurring. 13
Insert instead "National Gas (NSW) Law". 14
[3] Section 33K Market operations rules 15
Omit "Gas Pipelines Access (New South Wales) Law or Gas Pipelines Access 16
(New South Wales) Regulations" from section 33K (6). 17
Insert instead "National Gas (NSW) Law or the National Gas (NSW) 18
Regulations". 19
1.3 Interpretation Act 1987 No 15 20
[1] Section 21 Meanings of commonly used words and expressions 21
Omit the definitions of Gas Pipelines Access (New South Wales) Law and 22
Gas Pipelines Access (New South Wales) Regulations from section 21 (1). 23
Insert in alphabetical order: 24
National Gas (NSW) Law means the provisions applying 25
because of section 7 of the National Gas (New South Wales) Act 26
2008. 27
National Gas (NSW) Regulations means the provisions applying 28
because of section 8 of the National Gas (New South Wales) Act 29
2008. 30
Page 10
National Gas (New South Wales) Bill 2008
Amendment of Acts Schedule 1
[2] Section 68 References to amended Acts and instruments 1
Omit "Gas Pipelines Access (New South Wales) Law" from section 2
68 (4) (a) (ix). 3
Insert instead "National Gas (NSW) Law". 4
1.4 Law Enforcement (Powers and Responsibilities) Act 2002 5
No 103 6
Section 80 Application of warrant provisions 7
Omit "Gas Pipelines Access (New South Wales) Law," from section 80 (2). 8
Insert instead "National Gas (NSW) Law, and". 9
1.5 Pipelines Act 1967 No 90 10
Section 23 Directions as to the conveyance of substances 11
Omit section 23 (7). Insert instead: 12
(7) This section does not apply to any pipeline that is a transmission 13
pipeline or distribution pipeline within the meaning of the 14
National Gas (NSW) Law. 15
Page 11
National Gas (New South Wales) Bill 2008
Note National Gas Law
Note National Gas Law 1
Chapter 1 Preliminary 2
Part 1 Citation and interpretation 3
1 Citation 4
This law may be cited as the National Gas Law. 5
2 Definitions 6
In this Law-- 7
15-year no-coverage determination means a determination of a 8
relevant Minister under Chapter 5 Part 2; 9
ACCC means the Australian Competition and Consumer Commission 10
established by section 6A of the Trade Practices Act 1974 of the 11
Commonwealth; 12
access arrangement means an arrangement setting out terms and 13
conditions about access to pipeline services provided or to be provided 14
by means of a pipeline; 15
access determination means a determination of the dispute resolution 16
body under Chapter 6 Part 3 and includes a determination varied under 17
Part 4 of that Chapter; 18
AEMC means the Australian Energy Market Commission established 19
by section 5 of the Australian Energy Market Commission 20
Establishment Act 2004 of South Australia; 21
AER means the Australian Energy Regulator established by section 22
44AE of the Trade Practices Act 1974 of the Commonwealth; 23
AER economic regulatory decision means a decision (however 24
described) of the AER under this Law or the Rules performing or 25
exercising an AER economic regulatory function or power; 26
AER economic regulatory function or power means a function or 27
power performed or exercised by the AER under this Law or the Rules 28
that relates to the economic regulation of pipeline services provided by 29
a service provider-- 30
(a) by means of; or 31
(b) in connection with, 32
a scheme pipeline and includes a function or power performed or 33
exercised by the AER under this Law or the Rules that relates to-- 34
(c) the preparation of a service provider performance report; 35
(d) a ring fencing decision; 36
Page 12
National Gas (New South Wales) Bill 2008
National Gas Law Note
(e) an applicable access arrangement decision; 1
(f) an access determination (if the AER is the dispute resolution 2
body); 3
AER ring fencing determination means a determination of the AER 4
under section 143(1); 5
applicable access arrangement means a limited access arrangement or 6
full access arrangement that has taken effect after being approved or 7
made by the AER under the Rules and includes an applicable access 8
arrangement as varied-- 9
(a) under the Rules; or 10
(b) by an access determination as provided by this Law or the Rules; 11
applicable access arrangement decision means-- 12
(a) a full access arrangement decision; or 13
(b) a limited access arrangement decision; 14
approved associate contract means an associate contract approved by 15
the AER under an associate contract decision; 16
associate in relation to a person has the same meaning it would have 17
under Division 2 of Part 1.2 of the Corporations Act 2001 of the 18
Commonwealth if sections 13, 16(2) and 17 did not form part of that 19
Act; 20
associate contract means-- 21
(a) a contract, arrangement or understanding between a service 22
provider and an associate of the service provider in connection 23
with the provision of an associate pipeline service; or 24
(b) a contract, arrangement or understanding between a service 25
provider and any person in connection with the provision of an 26
associate pipeline service-- 27
(i) that provides a direct or indirect benefit to an associate; 28
and 29
(ii) that is not at arm's length; 30
associate contract decision means a decision of the AER under the 31
Rules that approves or does not approve an associate contract for the 32
purposes of Chapter 4 Part 2 Division 5; 33
associate pipeline service means a pipeline service provided by means 34
of a pipeline other than a pipeline to which a 15-year no coverage 35
determination applies; 36
Bulletin Board information means information that-- 37
(a) a person gives to the Bulletin Board operator to comply with 38
section 223(1); or 39
Page 13
National Gas (New South Wales) Bill 2008
Note National Gas Law
(b) a person gives to the Bulletin Board operator in circumstances 1
expressly permitted by the Rules; 2
Bulletin Board operator means the person prescribed by the 3
Regulations for the purposes of section 217; 4
charge, in relation to a pipeline service, means the amount that is 5
payable by a user to a service provider for the provision of the pipeline 6
service to that user; 7
civil penalty means-- 8
(a) in the case of a breach of a civil penalty provision by a natural 9
person-- 10
(i) an amount not exceeding $20 000; and 11
(ii) an amount not exceeding $2 000 for every day during 12
which the breach continues; 13
(b) in the case of a breach of a civil penalty provision by a body 14
corporate-- 15
(i) an amount not exceeding $100 000; and 16
(ii) an amount not exceeding $10 000 for every day during 17
which the breach continues; 18
civil penalty provision has the meaning given by section 3; 19
classification decision under the Rules means a decision of the NCC 20
under the Rules that classifies either of the following pipelines as a cross 21
boundary transmission pipeline, cross boundary distribution pipeline, 22
transmission pipeline or a distribution pipeline: 23
(a) a pipeline in respect of which a tender approval decision becomes 24
irrevocable by operation of the Rules; 25
(b) a pipeline-- 26
(i) by means of which a service provider intends to provide 27
pipeline services to which a full access arrangement 28
voluntarily submitted to the AER for approval by that 29
provider will apply, if approved; and 30
(ii) in respect of which the NCC has not previously made an 31
initial classification decision; 32
commission, in relation to a pipeline, has the meaning given by 33
section 12; 34
Commonwealth Minister means the Minister of the Commonwealth 35
administering the Australian Energy Market Act 2004 of the 36
Commonwealth; 37
conduct provision has the meaning given by section 4; 38
coverage determination means a determination of a relevant Minister 39
under Chapter 3 Part 1 Division 1; 40
Page 14
National Gas (New South Wales) Bill 2008
National Gas Law Note
coverage recommendation means a recommendation of the NCC under 1
Chapter 3 Part 1 Division 1; 2
coverage revocation determination means a determination of a relevant 3
Minister under Chapter 3 Part 1 Division 2; 4
coverage revocation recommendation means a recommendation of the 5
NCC under Chapter 3 Part 1 Division 2; 6
covered pipeline means a pipeline-- 7
(a) to which a coverage determination applies; or 8
(b) deemed to be a covered pipeline by operation of section 126 or 9
127; 10
covered pipeline service provider means a service provider that 11
provides or intends to provide pipeline services by means of a covered 12
pipeline; 13
cross boundary distribution pipeline means a distribution pipeline that 14
is partly situated in the jurisdictional areas of 2 or more participating 15
jurisdictions; 16
cross boundary transmission pipeline means a transmission pipeline 17
that is partly situated in the jurisdictional areas of 2 or more 18
participating jurisdictions; 19
designated pipeline means a pipeline prescribed by the Regulations to 20
be a designated pipeline; 21
Note. A light regulation determination cannot be made in respect of pipeline 22
services provided by means of a designated pipeline: see sections 109 and 111. 23
developable capacity means the difference between the current capacity 24
of a covered pipeline and the capacity of a covered pipeline which 25
would be available if a new facility was constructed, but does not 26
include any new capacity of a covered pipeline resulting from an 27
extension to the geographic range of a covered pipeline; 28
dispute resolution body means the AER; 29
distribution pipeline means a pipeline that is classified in accordance 30
with this Law or the Rules as a distribution pipeline and includes any 31
extension to, or expansion of the capacity of, such a pipeline when it is 32
a covered pipeline that, by operation of an applicable access 33
arrangement or under this Law, is to be treated as part of the pipeline; 34
Note. See also sections 18 and 19. 35
draft Rule determination means a determination of the AEMC under 36
section 308; 37
end user means a person who acquires natural gas or proposes to 38
acquire natural gas for consumption purposes; 39
ERA means the Economic Regulation Authority established by 40
section 4 of the Economic Regulation Authority Act 2003 of Western 41
Australia; 42
Page 15
National Gas (New South Wales) Bill 2008
Note National Gas Law
extension and expansion requirements means-- 1
(a) the requirements contained in an access arrangement that, in 2
accordance with the Rules, specify-- 3
(i) the circumstances when an extension to, or expansion of 4
the capacity of, a covered pipeline is to be treated as 5
forming part of the covered pipeline; and 6
(ii) whether the pipeline services provided or to be provided 7
by means of, or in connection with, spare capacity arising 8
out of an extension to, or expansion of the capacity of, a 9
covered pipeline will be subject to the applicable access 10
arrangement applying to the pipeline services to which that 11
arrangement applies; and 12
(iii) whether an extension to, or expansion of the capacity of, a 13
covered pipeline will affect a reference tariff, and if so, the 14
effect on the reference tariff; and 15
(b) any other requirements specified by the Rules as extension and 16
expansion requirements; 17
Note. See also sections 18 and 19. 18
final Rule determination means a determination of the AEMC under 19
section 311; 20
foreign company has the same meaning as in the Corporations Act 21
2001 of the Commonwealth; 22
foreign source means-- 23
(a) a source beyond the outer limits of all of the following: 24
(i) the adjacent area of this jurisdiction; 25
(ii) the adjacent area of another participating jurisdiction; or 26
(b) a source within the joint petroleum development area (within the 27
meaning of the Petroleum (Timor Sea Treaty) Act 2003 of the 28
Commonwealth); 29
form of regulation factors has the meaning given by section 16; 30
full access arrangement means an access arrangement that-- 31
(a) provides for price or revenue regulation as required by the Rules; 32
and 33
(b) deals with all other matters for which the Rules require provision 34
to be made in an access arrangement; 35
full access arrangement decision means a decision of the AER under 36
the Rules that-- 37
(a) approves or does not approve a full access arrangement or 38
revisions to an applicable access arrangement submitted to the 39
AER under section 132 or the Rules; or 40
Page 16
National Gas (New South Wales) Bill 2008
National Gas Law Note
(b) makes a full access arrangement-- 1
(i) in place of a full access arrangement the AER does not 2
approve in that decision; or 3
(ii) because a service provider does not submit a full access 4
arrangement in accordance with section 132 or the Rules; 5
(c) makes revisions to an access arrangement-- 6
(i) in place of revisions submitted to the AER under section 7
132 that the AER does not approve in that decision; or 8
(ii) because a service provider does not submit revisions to the 9
AER under section 132; 10
Gas Code means the National Third Party Access Code for Natural Gas 11
Pipeline Systems set out in Schedule 2 to the Gas Pipelines Access 12
(South Australia) Act 1997 of South Australia as in force from time to 13
time before the commencement of section 20 of the National Gas 14
(South Australia) Act 2008 of South Australia; 15
gas market operator means VENCorp or any other person or body 16
prescribed by the Regulations to be a gas market operator; 17
general regulatory information order has the meaning given by 18
section 45; 19
greenfields pipeline incentive means-- 20
(a) a 15-year no-coverage determination; or 21
(b) a price regulation exemption; 22
haulage, in relation to natural gas, includes conveyance or reticulation 23
of natural gas; 24
initial classification decision means a decision of the NCC under 25
section 98 or 155; 26
initial National Gas Rules means the National Gas Rules made under 27
section 294; 28
international pipeline means a pipeline for the haulage of gas from a 29
foreign source; 30
jurisdictional determination criteria, in relation to a cross boundary 31
distribution pipeline, has the meaning given by section 14; 32
jurisdictional gas legislation means an Act of a participating 33
jurisdiction (other than national gas legislation), or any instrument made 34
or issued under or for the purposes of that Act, that regulates the haulage 35
of gas in that jurisdiction; 36
light regulation determination means a determination of the NCC 37
under Chapter 3 Part 2 Division 1; 38
light regulation services means pipeline services to which a light 39
regulation determination applies; 40
Page 17
National Gas (New South Wales) Bill 2008
Note National Gas Law
limited access arrangement means an access arrangement that, under 1
this Law and the Rules, is not required to make provision for price or 2
revenue regulation but deals with the matters for which this Law and the 3
Rules require provision to be made in an access arrangement; 4
limited access arrangement decision means a decision of the AER 5
under the Rules that approves or does not approve-- 6
(a) a limited access arrangement submitted to the AER under section 7
116 or 168; or 8
(b) revisions to a limited access arrangement submitted to the AER 9
under section 116(3) or 168(3) or the Rules; 10
MCE means the Ministerial Council on Energy established on 8 June 11
2001, being the Council of Ministers with primary carriage of energy 12
matters at a national level comprising the Ministers representing the 13
Commonwealth, the States, the Australian Capital Territory and the 14
Northern Territory, acting in accordance with its own procedures; 15
MCE directed review means a review conducted by the AEMC under 16
Chapter 2 Part 2 Division 4; 17
MCE statement of policy principles means a statement of policy 18
principles issued by the MCE under section 25; 19
minimum ring fencing requirement means a requirement under 20
Chapter 4 Part 2 Division 2; 21
Minister of a participating jurisdiction means a Minister who is a 22
Minister of a participating jurisdiction within the meaning of section 22; 23
Ministerial coverage decision means-- 24
(a) a decision of a relevant Minister under section 99, 106 or 156; or 25
(b) a decision of the Commonwealth Minister under section 164; 26
national gas legislation means-- 27
(a) the National Gas (South Australia) Act 2008 of South Australia 28
and Regulations in force under that Act; and 29
(b) the National Gas (South Australia) Law; and 30
(c) the National Gas Access (Western Australia) Act 2008 of 31
Western Australia; and 32
(d) the National Gas Access (Western Australia) Law (within the 33
meaning given in the National Gas Access (Western Australia) 34
Act 2008 of Western Australia; and 35
(e) Regulations made under the National Gas Access (Western 36
Australia) Act 2008 of Western Australia for the purposes of the 37
National Gas Access (Western Australia) Law; and 38
Page 18
National Gas (New South Wales) Bill 2008
National Gas Law Note
(f) an Act of a participating jurisdiction (other than South Australia 1
or Western Australia) that applies, as a law of that jurisdiction, 2
any part of-- 3
(i) the Regulations referred to in paragraph (a); or 4
(ii) the National Gas Law set out in the Schedule to the 5
National Gas (South Australia) Act 2008 of South 6
Australia; and 7
(g) the National Gas Law set out in the Schedule to the National Gas 8
(South Australia) Act 2008 of South Australia as applied as a law 9
of a participating jurisdiction (other than South Australia or 10
Western Australia); and 11
(h) the Regulations referred to in paragraph (a) as applied as a law of 12
a participating jurisdiction (other than South Australia or 13
Western Australia); 14
national gas objective means the objective set out in section 23; 15
National Gas Rules or Rules means-- 16
(a) the initial National Gas Rules; and 17
(b) Rules made by the AEMC under this Law, including Rules that 18
amend or revoke-- 19
(i) the initial National Gas Rules; or 20
(ii) Rules made by it; 21
natural gas means a substance that-- 22
(a) is in a gaseous state at standard temperature and pressure; and 23
(b) consists of naturally occurring hydrocarbons, or a naturally 24
occurring mixture of hydrocarbons and non-hydrocarbons, the 25
principal constituent of which is methane; and 26
(c) is suitable for consumption; 27
natural gas service means-- 28
(a) a pipeline service; or 29
(b) the supply of natural gas; or 30
(c) a service ancillary to the service described in paragraph (b); 31
Natural Gas Services Bulletin Board means the website maintained by 32
the Bulletin Board operator that contains information of the kind 33
specified in the Rules in relation to natural gas services; 34
NCC means the National Competition Council established by section 35
29A of the Trade Practices Act 1974 of the Commonwealth; 36
NCC recommendation or decision means-- 37
(a) a coverage recommendation; or 38
(b) a coverage revocation recommendation; or 39
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National Gas (New South Wales) Bill 2008
Note National Gas Law
(c) a no-coverage recommendation; or 1
(d) a price regulation exemption recommendation; or 2
(e) a reclassification decision; or 3
(f) a light regulation determination; or 4
(g) a decision of the NCC under Chapter 3 Part 2 Division 2 to 5
revoke a light regulation determination; or 6
(h) a decision of the NCC not to make a decision referred to in 7
paragraph (f) or (g); or 8
(i) advice under section 172; 9
new facility means an extension to, or expansion of the capacity of, a 10
covered pipeline which is to be treated as part of the covered pipeline-- 11
(a) in accordance with the extension and expansion requirements 12
contained in an applicable access arrangement applying to the 13
pipeline services provided by means of that covered pipeline; or 14
(b) under this Law; 15
Note. See also sections 18 and 19. 16
no-coverage recommendation means a recommendation of the NCC 17
under Chapter 5 Part 2; 18
non scheme pipeline user means a person who-- 19
(a) is a party to a contract with a service provider under which the 20
service provider provides or intends to provide a pipeline service 21
to that person by means of a pipeline that is not a scheme 22
pipeline; or 23
(b) has a right under an access determination to be provided with a 24
pipeline service by means of a pipeline that is not a scheme 25
pipeline; 26
offence provision means a provision of this Law the breach or 27
contravention of which by a person exposes that person to a finding of 28
guilt by a court; 29
officer has the same meaning as officer has in relation to a corporation 30
under section 9 of the Corporations Act 2001 of the Commonwealth; 31
old access law means Schedule 1 to the Gas Pipelines Access (South 32
Australia) Act 1997 of South Australia as in force from time to time 33
before the commencement of section 20 of the National Gas (South 34
Australia) Act 2008 of South Australia; 35
old scheme classification or determination means a classification or 36
determination under section 10 or 11 of the old access law in force at 37
any time before the repeal of the old access law; 38
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National Gas (New South Wales) Bill 2008
National Gas Law Note
old scheme distribution pipeline means a pipeline that was, at any time 1
before the repeal of the old access law-- 2
(a) a distribution pipeline as defined in that law; and 3
(b) a covered pipeline as defined in the Gas Code; 4
old scheme transmission pipeline means a pipeline that was, at any 5
time before the repeal of the old access law-- 6
(a) a transmission pipeline as defined in that law; and 7
(b) a covered pipeline as defined in the Gas Code; 8
participating jurisdiction means a jurisdiction that is a participating 9
jurisdiction by reason of section 21; 10
pipeline means-- 11
(a) a pipe or system of pipes for the haulage of natural gas, and any 12
tanks, reservoirs, machinery or equipment directly attached to 13
that pipe or system of pipes; or 14
(b) a proposed pipe or system of pipes for the haulage of natural gas, 15
and any proposed tanks, reservoirs, machinery or equipment 16
proposed to be directly attached to the proposed pipe or system 17
of pipes; or 18
(c) a part of a pipe or system of pipes or proposed pipe or system of 19
pipes referred to in paragraph (a) or (b), 20
but does not include-- 21
(d) unless paragraph (e) applies, anything upstream of a prescribed 22
exit flange on a pipeline conveying natural gas from a prescribed 23
gas processing plant; or 24
(e) if a connection point upstream of an exit flange on such a pipeline 25
is prescribed, anything upstream of that point; or 26
(f) a gathering system operated as part of an upstream producing 27
operation; or 28
(g) any tanks, reservoirs, machinery or equipment used to remove or 29
add components to or change natural gas (other than odourisation 30
facilities) such as a gas processing plant; or 31
(h) anything downstream of a point on a pipeline from which a 32
person takes natural gas for consumption purposes; 33
pipeline classification criterion has the meaning given by section 13; 34
pipeline coverage criteria has the meaning given by section 15; 35
pipeline reliability standard means a standard imposed by or under an 36
Act of a participating jurisdiction, or any instrument made or issued 37
under or for the purposes of that Act, relating to the reliable haulage of 38
natural gas in that jurisdiction; 39
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National Gas (New South Wales) Bill 2008
Note National Gas Law
pipeline safety duty means a duty or requirement under an Act of a 1
participating jurisdiction, or any instrument made or issued under or for 2
the purposes of that Act, relating to-- 3
(a) the safe haulage of natural gas in that jurisdiction; or 4
(b) the safe operation of a pipeline in that jurisdiction; 5
pipeline service means-- 6
(a) a service provided by means of a pipeline, including-- 7
(i) a haulage service (such as firm haulage, interruptible 8
haulage, spot haulage and backhaul); and 9
(ii) a service providing for, or facilitating, the interconnection 10
of pipelines; and 11
(b) a service ancillary to the provision of a service referred to in 12
paragraph (a), 13
but does not include the production, sale or purchase of natural gas or 14
processable gas; 15
pipeline service standard means a standard relating to the standard of 16
the pipeline services provided by a service provider by means of a 17
covered pipeline imposed-- 18
(a) by or under jurisdictional gas legislation; or 19
(b) by the AER-- 20
(i) under an access arrangement decision; or 21
(ii) in accordance with the Rules; 22
price or revenue regulation means regulation of-- 23
(a) the prices, charges or tariffs for pipeline services to be, or that are 24
to be, provided; or 25
(b) the revenue to be, or that is to be, derived from the provision of 26
pipeline services; 27
price regulation exemption means an exemption under Chapter 5 28
Part 3; 29
price regulation exemption recommendation means a 30
recommendation of the NCC under section 162; 31
processable gas means a substance that-- 32
(a) is in a gaseous state at standard temperature and pressure; and 33
(b) consists of naturally occurring hydrocarbons, or a naturally 34
occurring mixture of hydrocarbons and non-hydrocarbons, the 35
principal constituent of which is methane; 36
producer means a person who carries on a business of producing natural 37
gas; 38
prospective user has the meaning given by section 5; 39
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National Gas (New South Wales) Bill 2008
National Gas Law Note
queuing requirements means terms and conditions providing for the 1
priority that a prospective user has, as against any other prospective 2
user, to obtain access to spare capacity and developable capacity; 3
reclassification decision means a decision of the NCC under Chapter 3 4
Part 5; 5
reference service means a pipeline service specified by, or determined 6
or approved by the AER under, the Rules as a reference service; 7
reference tariff means a tariff or charge for a reference service-- 8
(a) specified in an applicable access arrangement approved or made 9
under a full access arrangement decision; or 10
(b) determined by applying the formula or methodology contained in 11
an applicable access arrangement approved or made under a full 12
access arrangement decision; 13
Regulations means the regulations made under Part 3 of the National 14
Gas (South Australia) Act 2008 of South Australia that apply as a law 15
of this jurisdiction; 16
regulatory information instrument means-- 17
(a) a general regulatory information order; or 18
(b) a regulatory information notice; 19
regulatory information notice has the meaning given by section 46; 20
regulatory obligation or requirement has the meaning given by 21
section 6; 22
regulatory payment has the meaning given by section 7; 23
relevant Minister means if, in a coverage recommendation, 24
no-coverage recommendation, classification decision under the Rules 25
or reclassification decision, the NCC determines the pipeline is-- 26
(a) a cross boundary transmission pipeline--the Commonwealth 27
Minister; 28
(b) a transmission pipeline situated wholly within a participating 29
jurisdiction--the designated Minister; 30
Note. The term designated Minister is defined in the Act of this 31
jurisdiction that applies this Law as a law of this jurisdiction. 32
(c) a distribution pipeline situated wholly within a participating 33
jurisdiction--the Minister of the participating jurisdiction; 34
(d) a cross boundary distribution pipeline--the Minister of the 35
participating jurisdiction determined by the NCC in the 36
recommendation as being the participating jurisdiction with 37
which the cross boundary distribution pipeline is most closely 38
connected; 39
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National Gas (New South Wales) Bill 2008
Note National Gas Law
relevant Regulator has the same meaning as in section 2 of the old 1
access law; 2
revenue and pricing principles means the principles set out in 3
section 24; 4
ring fencing decision means-- 5
(a) an AER ring fencing determination; or 6
(b) a decision under section 146 granting or not granting an 7
exemption under that section; or 8
(c) an associate contract decision; 9
scheme pipeline means-- 10
(a) a covered pipeline; or 11
(b) an international pipeline to which a price regulation exemption 12
applies; 13
service provider has the meaning given by section 8; 14
service provider performance report means a report prepared by the 15
AER under section 64; 16
spare capacity means unutilised capacity of a pipeline; 17
storage provider means any person who owns, operates or controls a 18
facility for storing natural gas or processable gas for injection into a 19
pipeline; 20
supply includes-- 21
(a) in relation to goods--supply (including re-supply) by way of 22
sale, exchange, lease, hire or hire purchase; and 23
(b) in relation to services--provide, grant or confer; 24
tariff means a rate by which a charge for a pipeline service is calculated; 25
tender approval decision means a decision of the AER under the Rules 26
under which the AER approves a tender process for the construction and 27
operation of a pipeline as a competitive tender process; 28
Territory means the Australian Capital Territory or the Northern 29
Territory; 30
transmission pipeline means a pipeline that is classified in accordance 31
with this Law or the Rules as a transmission pipeline and includes any 32
extension to, or expansion of the capacity of, such a pipeline when it is 33
a covered pipeline that, by operation of an applicable access 34
arrangement or under this Law, is to be treated as part of the pipeline; 35
Note. See also sections 18 and 19. 36
Tribunal means the Australian Competition Tribunal referred to in the 37
Trade Practices Act 1974 of the Commonwealth and includes a member 38
of the Tribunal or a Division of the Tribunal performing functions of the 39
Tribunal; 40
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National Gas (New South Wales) Bill 2008
National Gas Law Note
user means a person who-- 1
(a) is a party to a contract with a service provider under which the 2
service provider provides or intends to provide a pipeline service 3
to that person by means of a scheme pipeline; or 4
(b) has a right under an access determination to be provided with a 5
pipeline service by means of a scheme pipeline; 6
VENCorp means the Victorian Energy Networks Corporation 7
continued under Part 8 of the Gas Industry Act 2001 of Victoria. 8
3 Meaning of civil penalty provision 9
A civil penalty provision is-- 10
(a) a provision of this Law specified in an item in the Table at the 11
foot of this section; or 12
(b) a provision of this Law (other than an offence provision) or the 13
Rules that is prescribed by the Regulations to be a civil penalty 14
provision. 15
Table 16
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
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National Gas (New South Wales) Bill 2008
Note National Gas Law
Item Provision
17 Section 195
18 Section 223
19 Section 225
20 Section 227
21 Section 228
4 Meaning of conduct provision 1
A conduct provision is-- 2
(a) a provision of this Law specified in an item in the Table at the 3
foot of this section; or 4
(b) a provision of this Law (other than an offence provision) or the 5
Rules that is prescribed by the Regulations to be a conduct 6
provision. 7
Table 8
Item Provision
1 Section 133
2 Section 134
3 Section 135
4 Section 136
5 Section 147
6 Section 148
7 Section 170
5 Meaning of prospective user 9
(1) A prospective user is a person who seeks or wishes to be provided with 10
a pipeline service by means of a scheme pipeline. 11
(2) To avoid doubt, a user is also a prospective user if the user seeks or 12
wishes to be provided with a pipeline service by means of a scheme 13
pipeline other than a pipeline service already provided to them under-- 14
(a) a contract; or 15
(b) an access determination. 16
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National Gas (New South Wales) Bill 2008
National Gas Law Note
6 Meaning of regulatory obligation or requirement 1
(1) A regulatory obligation or requirement is-- 2
(a) in relation to the provision of a pipeline service by a service 3
provider-- 4
(i) a pipeline safety duty; or 5
(ii) a pipeline reliability standard; or 6
(iii) a pipeline service standard; or 7
(b) an obligation or requirement under-- 8
(i) this Law or the Rules; or 9
(ii) an Act of a participating jurisdiction, or any instrument 10
made or issued under or for the purposes of that Act, that 11
levies or imposes a tax or other levy that is payable by a 12
service provider; or 13
(iii) an Act of a participating jurisdiction, or any instrument 14
made or issued under or for the purposes of that Act, that 15
regulates the use of land in a participating jurisdiction by a 16
service provider; or 17
(iv) an Act of a participating jurisdiction or any instrument 18
made or issued under or for the purposes of that Act that 19
relates to the protection of the environment; or 20
(v) an Act of a participating jurisdiction, or any instrument 21
made or issued under or for the purposes of that Act (other 22
than national gas legislation or an Act of a participating 23
jurisdiction or an Act or instrument referred to in 24
subparagraphs (ii) to (iv)), that materially affects the 25
provision, by a service provider, of pipeline services to 26
which an applicable access arrangement applies. 27
(2) A regulatory obligation or requirement does not include an obligation 28
or requirement to pay a fine, penalty or compensation-- 29
(a) for a breach of-- 30
(i) a pipeline safety duty; or 31
(ii) a pipeline reliability standard; or 32
(iii) a pipeline service standard; or 33
(b) under this Law or the Rules or an Act or an instrument referred to 34
in subsection (1)(b)(ii) to (v). 35
Note. See also section 24(2)(b). 36
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National Gas (New South Wales) Bill 2008
Note National Gas Law
7 Meaning of regulatory payment 1
A regulatory payment is a sum that a service provider had been required 2
or allowed to pay to a user or an end user for a breach of, as the case 3
requires-- 4
(a) a pipeline reliability standard; or 5
(b) a pipeline service standard, 6
because it was efficient for the service provider (in terms of the service 7
provider's overall business) to pay that sum. 8
Note. See also section 24(2)(b). 9
8 Meaning of service provider 10
(1) A service provider is a person who-- 11
(a) owns, controls or operates; or 12
(b) intends to own, control or operate, 13
a pipeline or scheme pipeline, or any part of a pipeline or scheme 14
pipeline. 15
Note. A service provider must not provide pipeline services by means of a 16
scheme pipeline unless the service provider is a legal entity of a specified kind: 17
See section 131, and section 169 where the scheme pipeline is an international 18
pipeline to which a price regulation exemption applies. 19
(2) A gas market operator that controls or operates (without at the same 20
time owning)-- 21
(a) a pipeline or scheme pipeline; or 22
(b) a part of a pipeline or scheme pipeline, 23
is not to be taken to be a service provider for the purposes of this Law. 24
9 Passive owners of scheme pipelines deemed to provide or intend to 25
provide pipeline services 26
(1) This section applies to a person who owns a scheme pipeline but does 27
not provide or intend to provide pipeline services by means of that 28
pipeline. 29
(2) The person is, for the purposes of this Law, deemed to provide or intend 30
to provide pipeline services by means of that pipeline even if the person 31
does not, in fact, do so. 32
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National Gas (New South Wales) Bill 2008
National Gas Law Note
10 Things done by 1 service provider to be treated as being done by all of 1
service provider group 2
(1) This section applies if-- 3
(a) more than 1 service provider (a service provider group) carries 4
out a controlling pipeline activity in respect of a pipeline (or a 5
part of a pipeline); and 6
(b) under this Law or the Rules a service provider is required or 7
allowed to do a thing. 8
(2) A service provider of the service provider group (the complying service 9
provider) may do that thing on behalf of the other service providers of 10
the service provider group if the complying service provider has the 11
written permission of all of the service providers of that group to do that 12
thing on behalf of the service provider group. 13
(3) Unless this Law or the Rules otherwise provide, on the doing of a thing 14
referred to in subsection (2) by a complying service provider, the 15
service providers of the service provider group on whose behalf the 16
complying service provider does that thing, must, for the purposes of 17
this Law and the Rules, each be taken to have done the thing done by 18
the complying service provider. 19
(4) This section does not apply to a thing required or allowed to be done 20
under section 131 or Chapter 4 Part 2. 21
(5) In this section-- 22
controlling pipeline activity means own, control or operate. 23
11 Local agents of foreign service providers 24
(1) This section applies if-- 25
(a) a service provider is a foreign company; and 26
(b) the service provider has, under the Corporations Act 2001 of the 27
Commonwealth, appointed a local agent within the meaning of 28
that Act. 29
(2) The local agent-- 30
(a) is answerable for the doing of all acts, matters and things the 31
service provider is required by or under this Law to do; and 32
(b) is personally liable to a penalty imposed on the service provider 33
for a breach of a provision of this Law or the Rules if a court 34
hearing the matter is satisfied that the local agent should be so 35
liable. 36
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National Gas (New South Wales) Bill 2008
Note National Gas Law
12 Commissioning of a pipeline 1
A pipeline is commissioned when the pipeline is first used for the 2
haulage of natural gas, on a commercial basis. 3
13 Pipeline classification criterion 4
(1) The pipeline classification criterion is whether the primary function of 5
the pipeline is to-- 6
(a) reticulate gas within a market (which is the primary function of a 7
distribution pipeline); or 8
(b) convey gas to a market (which is the primary function of a 9
transmission pipeline). 10
(2) Without limiting subsection (1), in determining the primary function of 11
the pipeline, regard must also be had to whether the characteristics of 12
the pipeline are those of a transmission pipeline or distribution pipeline 13
having regard to-- 14
(a) the characteristics and classification of, as the case requires, an 15
old scheme transmission pipeline or an old scheme distribution 16
pipeline; 17
(b) the characteristics of, as the case requires, a transmission pipeline 18
or a distribution pipeline classified under this Law; 19
(c) the characteristics and classification of pipelines specified in the 20
Rules (if any); 21
(d) the diameter of the pipeline; 22
(e) the pressure at which the pipeline is or will be designed to 23
operate; 24
(f) the number of points at which gas can or will be injected into the 25
pipeline; 26
(g) the extent of the area served or to be served by the pipeline; 27
(h) the pipeline's linear or dendritic configuration. 28
14 Jurisdictional determination criteria--cross boundary distribution 29
pipelines 30
The pipeline jurisdictional determination criteria are-- 31
(a) whether more gas is to be delivered by a cross boundary 32
distribution pipeline in the jurisdictional area of 1 participating 33
jurisdiction than in the jurisdictional area of any other 34
participating jurisdiction; 35
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National Gas (New South Wales) Bill 2008
National Gas Law Note
(b) whether more customers to be served by a cross boundary 1
distribution pipeline are resident in the jurisdictional area of 2
1 participating jurisdiction than in the jurisdictional area of any 3
other participating jurisdiction; 4
(c) whether more of the network for a cross boundary distribution 5
pipeline is in the jurisdictional area of 1 participating jurisdiction 6
than in the jurisdictional area of any other participating 7
jurisdiction; 8
(d) whether 1 participating jurisdiction has greater prospects for 9
growth in the gas market served or to be served by a cross 10
boundary distribution pipeline than any other participating 11
jurisdiction; 12
(e) whether the regional economic benefits from competition are 13
likely to be greater for 1 participating jurisdiction than for any 14
other participating jurisdiction. 15
15 Pipeline coverage criteria 16
The pipeline coverage criteria are-- 17
(a) that access (or increased access) to pipeline services provided by 18
means of the pipeline would promote a material increase in 19
competition in at least 1 market (whether or not in Australia), 20
other than the market for the pipeline services provided by means 21
of the pipeline; 22
(b) that it would be uneconomic for anyone to develop another 23
pipeline to provide the pipeline services provided by means of the 24
pipeline; 25
(c) that access (or increased access) to the pipeline services provided 26
by means of the pipeline can be provided without undue risk to 27
human health or safety; 28
(d) that access (or increased access) to the pipeline services provided 29
by means of the pipeline would not be contrary to the public 30
interest. 31
16 Form of regulation factors 32
The form of regulation factors are-- 33
(a) the presence and extent of any barriers to entry in a market for 34
pipeline services; 35
(b) the presence and extent of any network externalities (that is, 36
interdependencies) between a natural gas service provided by a 37
service provider and any other natural gas service provided by the 38
service provider; 39
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National Gas (New South Wales) Bill 2008
Note National Gas Law
(c) the presence and extent of any network externalities (that is, 1
interdependencies) between a natural gas service provided by a 2
service provider and any other service provided by the service 3
provider in any other market; 4
(d) the extent to which any market power possessed by a service 5
provider is, or is likely to be, mitigated by any countervailing 6
market power possessed by a user or prospective user; 7
(e) the presence and extent of any substitute, and the elasticity of 8
demand, in a market for a pipeline service in which a service 9
provider provides that service; 10
(f) the presence and extent of any substitute for, and the elasticity of 11
demand in a market for, electricity or gas (as the case may be); 12
(g) the extent to which there is information available to a prospective 13
user or user, and whether that information is adequate, to enable 14
the prospective user or user to negotiate on an informed basis 15
with a service provider for the provision of a pipeline service to 16
them by the service provider. 17
17 Effect of separate and consolidated access arrangements in certain 18
cases 19
(1) This section applies despite anything to the contrary in this Law. 20
(2) If, under this Law and the Rules, separate access arrangements are 21
approved in an applicable access arrangement decision for pipeline 22
services provided, or to be provided, by means of different parts of a 23
covered pipeline, each part of the covered pipeline-- 24
(a) by which pipeline services are provided; and 25
(b) to which each separate applicable access arrangement applies, 26
must to be taken to be a separate covered pipeline for the purposes of 27
this Law. 28
(3) If under this Law and the Rules, a single access arrangement is 29
approved in an applicable access arrangement decision for pipeline 30
services provided, or to be provided, by means of 2 or more covered 31
pipelines, those pipelines must be taken to be a single covered pipeline 32
for the purposes of this Law. 33
18 Certain extensions to, or expansion of the capacity of, pipelines to be 34
taken to be part of a covered pipeline 35
For the purposes of this Law-- 36
(a) an extension to, or expansion of the capacity of, a covered 37
pipeline must be taken to be part of the covered pipeline; and 38
Page 32
National Gas (New South Wales) Bill 2008
National Gas Law Note
(b) the pipeline as extended or expanded must be taken to be a 1
covered pipeline, 2
if, by operation of the extension and expansion requirements under an 3
applicable access arrangement, the applicable access arrangement will 4
apply to pipeline services provided by means of the covered pipeline as 5
extended or expanded. 6
19 Expansions of and extensions to covered pipeline by which light 7
regulation services are provided 8
For the purposes of this Law, an extension to, or expansion of the 9
capacity of, a covered pipeline by means of which light regulation 10
services (and in respect of which there is no limited access arrangement) 11
are provided, must be taken to be part of the covered pipeline unless the 12
AER determines otherwise in writing. 13
20 Interpretation generally 14
Schedule 2 to this Law applies to this Law, the Regulations and the 15
Rules and any other statutory instrument made under this Law. 16
Part 2 Participating jurisdictions 17
21 Participating jurisdictions 18
The State of South Australia, the Commonwealth, each of the States of 19
New South Wales, Victoria, Queensland, Western Australia and 20
Tasmania, and the Australian Capital Territory and the Northern 21
Territory are participating jurisdictions for the purposes of this Law. 22
22 Ministers of participating jurisdictions 23
The Ministers of the participating jurisdictions are-- 24
(a) the Minister of the Crown in right of South Australia 25
administering Part 2 of the National Gas (South Australia) Act 26
2008 of South Australia; and 27
(b) the Minister of the Crown in right of Western Australia 28
administering the National Gas Access (Western Australia) Act 29
2008 of Western Australia; and 30
(c) the Minister of the Crown in right of the Commonwealth 31
administering the Australian Energy Market Act 2004 of the 32
Commonwealth; and 33
(d) the Ministers of the Crown in right of the other participating 34
jurisdictions administering the laws of those jurisdictions that 35
substantially correspond to Part 2 of the National Gas (South 36
Australia) Act 2008 of South Australia. 37
Page 33
National Gas (New South Wales) Bill 2008
Note National Gas Law
Part 3 National gas objective and principles 1
Division 1 National gas objective 2
23 National gas objective 3
The objective of this Law is to promote efficient investment in, and 4
efficient operation and use of, natural gas services for the long term 5
interests of consumers of natural gas with respect to price, quality, 6
safety, reliability and security of supply of natural gas. 7
Division 2 Revenue and pricing principles 8
24 Revenue and pricing principles 9
(1) The revenue and pricing principles are the principles set out in 10
subsections (2) to (7). 11
(2) A service provider should be provided with a reasonable opportunity to 12
recover at least the efficient costs the service provider incurs in-- 13
(a) providing reference services; and 14
(b) complying with a regulatory obligation or requirement or making 15
a regulatory payment. 16
(3) A service provider should be provided with effective incentives in order 17
to promote economic efficiency with respect to reference services the 18
service provider provides. The economic efficiency that should be 19
promoted includes-- 20
(a) efficient investment in, or in connection with, a pipeline with 21
which the service provider provides reference services; and 22
(b) the efficient provision of pipeline services; and 23
(c) the efficient use of the pipeline. 24
(4) Regard should be had to the capital base with respect to a pipeline 25
adopted-- 26
(a) in any previous-- 27
(i) full access arrangement decision; or 28
(ii) decision of a relevant Regulator under section 2 of the Gas 29
Code; 30
(b) in the Rules. 31
(5) A reference tariff should allow for a return commensurate with the 32
regulatory and commercial risks involved in providing the reference 33
service to which that tariff relates. 34
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National Gas (New South Wales) Bill 2008
National Gas Law Note
(6) Regard should be had to the economic costs and risks of the potential 1
for under and over investment by a service provider in a pipeline with 2
which the service provider provides pipeline services. 3
(7) Regard should be had to the economic costs and risks of the potential 4
for under and over utilisation of a pipeline with which a service provider 5
provides pipeline services. 6
Division 3 MCE policy principles 7
25 MCE statements of policy principles 8
(1) Subject to this section, the MCE may issue a statement of policy 9
principles in relation to any matters that are relevant to the exercise and 10
performance by the AEMC of its functions and powers in-- 11
(a) making a Rule; or 12
(b) conducting a review under section 83. 13
(2) Before issuing a statement of policy principles, the MCE must be 14
satisfied that the statement is consistent with the national gas objective. 15
(3) As soon as practicable after issuing a statement of policy principles, the 16
MCE must give a copy of the statement to the AEMC. 17
(4) The AEMC must publish the statement in the South Australian 18
Government Gazette and on its website as soon as practicable after it is 19
given a copy of the statement. 20
Part 4 Operation and effect of National Gas Rules 21
26 National Gas Rules to have force of law 22
The National Gas Rules have the force of law in this jurisdiction. 23
Chapter 2 Functions and powers of gas market 24
regulatory entities 25
Part 1 Functions and powers of the Australian Energy 26
Regulator 27
Division 1 General 28
27 Functions and powers of the AER 29
(1) The AER has the following functions and powers: 30
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National Gas (New South Wales) Bill 2008
Note National Gas Law
(a) to monitor compliance by persons with this Law, the Regulations 1
and the Rules, including compliance with an applicable access 2
arrangement, an access determination and a ring fencing 3
decision; and 4
(b) to investigate breaches or possible breaches of provisions of this 5
Law, the Regulations or the Rules, including offences against this 6
Law; and 7
(c) to institute and conduct proceedings in relation to breaches of 8
provisions of this Law, the Regulations or the Rules, including 9
offences against this Law; and 10
(d) to institute and conduct appeals from decisions in proceedings 11
referred to in paragraph (c); and 12
(e) AER economic regulatory functions or powers; and 13
(f) to prepare and publish reports on the financial and operational 14
performance of service providers in providing pipeline services 15
by means of covered pipelines; and 16
(g) to approve compliance programs of service providers relating to 17
compliance by service providers with this Law or the Rules; and 18
(h) any other functions and powers conferred on it under this Law or 19
the Rules. 20
(2) The AER has the power to do all things necessary or convenient to be 21
done for or in connection with the performance of its functions. 22
28 Manner in which AER must perform or exercise AER economic 23
regulatory functions or powers 24
(1) The AER must, in performing or exercising an AER economic 25
regulatory function or power, perform or exercise that function or 26
power in a manner that will or is likely to contribute to the achievement 27
of the national gas objective. 28
(2) In addition, the AER-- 29
(a) must take into account the revenue and pricing principles-- 30
(i) when exercising a discretion in approving or making those 31
parts of an access arrangement relating to a reference 32
tariff; or 33
(ii) when making an access determination relating to a rate or 34
charge for a pipeline service; and 35
(b) may take into account the revenue and pricing principles when 36
performing or exercising any other AER economic regulatory 37
function or power, if the AER considers it appropriate to do so. 38
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(3) For the purposes of subsection (2)(a)(ii), a reference to a "reference 1
service" in the revenue and pricing principles must be read as a 2
reference to a "pipeline service". 3
29 Delegations 4
Any delegation by the AER under section 44AAH of the Trade 5
Practices Act 1974 of the Commonwealth extends to, and has effect for 6
the purposes of, this Law, the Regulations and the Rules. 7
30 Confidentiality 8
Section 44AAF of the Trade Practices Act 1974 of the Commonwealth 9
has effect for the purposes of this Law, the Regulations and the Rules as 10
if it formed part of this Law. 11
Note. See also Chapter 10 Part 2 Division 1. 12
Division 2 Search warrants 13
31 Definitions 14
In this Division-- 15
authorised person means a person authorised under section 32; 16
relevant provision means a provision of this Law, the Regulations or the 17
Rules. 18
32 Authorised person 19
(1) The AER may, in writing, authorise a person that the AER considers is 20
suitably qualified or trained to be an authorised person for the purposes 21
of this Division. 22
(2) An authorised person must comply with any direction of the AER in 23
exercising powers or functions as an authorised person. 24
33 Identity cards 25
(1) The AER must issue an identity card to an authorised person. 26
(2) The identity card must contain the name, a recent photograph and the 27
signature of the authorised person. 28
(3) An authorised person must carry the identity card at all times when 29
exercising powers or performing functions as an authorised person. 30
(4) An authorised person must produce his or her identity card for 31
inspection-- 32
(a) before exercising a power as an authorised person; or 33
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(b) at any time during the exercise of a power as an authorised 1
person, if asked to do so. 2
34 Return of identity cards 3
If a person to whom an identity card has been issued ceases to be an 4
authorised person, the person must return the identity card to the AER 5
as soon as practicable. 6
Maximum penalty: $500 7
35 Search warrant 8
(1) An authorised person may apply to a magistrate for the issue of a search 9
warrant in relation to a particular place if the person-- 10
(a) believes on reasonable grounds that-- 11
(i) there is or has been or will be a breach of a relevant 12
provision; and 13
(ii) there is or may be a thing or things of a particular kind 14
connected with that breach on or in that place; or 15
(b) reasonably suspects that-- 16
(i) there may have been a breach of a relevant provision; and 17
(ii) there is or may be a thing or things of a particular kind 18
connected with that breach on or in that place. 19
(2) If a magistrate is satisfied by the evidence, on oath or by affidavit, of an 20
authorised person that there are reasonable grounds for suspecting that 21
there is, or may be within the next 7 days, a thing or things of a 22
particular kind connected with a breach or possible breach of a relevant 23
provision on or in a place, the magistrate may issue a search warrant 24
authorising an authorised person named in the warrant-- 25
(a) to enter the place specified in the warrant, with such assistance 26
and by the use of such force as is necessary and reasonable; 27
(b) to search the place or any part of the place; 28
(c) to search for and seize a thing named or described in the warrant 29
and which the person believes on reasonable grounds to be 30
connected with the breach or possible breach of the relevant 31
provision; 32
(d) to inspect, examine or record an image of anything in the place; 33
(e) to take extracts from, and make copies of, any documents in the 34
place; 35
(f) to take into the place such equipment and materials as the person 36
requires for exercising the powers. 37
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(3) A search warrant issued under this section must state-- 1
(a) the purpose for which the search is required and the nature of the 2
suspected breach of the relevant provision; and 3
(b) any conditions to which the warrant is subject; and 4
(c) whether entry is authorised to be made at any time of the day or 5
night or during stated hours of the day or night; and 6
(d) a day, not later than 7 days after the issue of the warrant, on which 7
the warrant ceases to have effect. 8
(4) Except as provided by this Law, the rules to be observed with respect to 9
search warrants mentioned in any relevant laws of this jurisdiction 10
extend and apply to warrants under this section. 11
36 Announcement of entry and details of warrant to be given to occupier or 12
other person at premises 13
(1) This section applies if the occupier or another person who apparently 14
represents the occupier is present at premises when a search warrant is 15
being executed. 16
(2) The authorised person executing the warrant must-- 17
(a) identify himself or herself to that person; and 18
(b) announce that he or she is authorised by the warrant to enter the 19
place; and 20
(c) before using force to enter, give the person an opportunity to 21
allow entry; and 22
(d) give the person a copy of the warrant. 23
(3) The authorised person executing the warrant is not entitled to exercise 24
any powers under the warrant in relation to premises if the authorised 25
person does not comply with subsection (2). 26
37 Immediate entry permitted in certain cases 27
An authorised person executing a warrant need not comply with section 28
36 if he or she believes on reasonable grounds that immediate entry to 29
premises is required to ensure-- 30
(a) the safety of any person; or 31
(b) that the effective execution of the search warrant is not frustrated. 32
38 Copies of seized documents 33
(1) If an authorised person executing a warrant retains possession of a 34
document seized from a person in accordance with the warrant, the 35
authorised person must give that other person, within 21 days of the 36
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seizure, a copy of the document certified as correct by the authorised 1
person executing the warrant. 2
(2) A copy of a document certified under subsection (1) shall be received in 3
all courts and all tribunals as evidence of equal validity to the original. 4
39 Retention and return of seized documents or things 5
(1) If an authorised person executing a warrant seizes a document or other 6
thing in accordance with the warrant, the authorised person must if he 7
or she is not a person employed by the AER, give the document or other 8
thing seized to the AER. 9
(2) The AER must take reasonable steps to return the document or thing to 10
the person from whom it was seized if the reason for its seizure no 11
longer exists. 12
(3) If the document or thing seized has not been returned within 3 months 13
after it was seized, the AER must take reasonable steps to return it 14
unless-- 15
(a) proceedings for the purpose for which the document or thing was 16
retained have commenced within that 3 month period and those 17
proceedings (including any appeal) have not been completed; or 18
(b) a magistrate makes an order under section 40 extending the 19
period during which the document or thing may be retained. 20
40 Extension of period of retention of documents or things seized 21
(1) The AER may apply to a magistrate-- 22
(a) within 3 months after a document or other thing was seized in 23
accordance with a warrant; or 24
(b) if an extension has been granted under this section, before the end 25
of the period of the extension, 26
for an extension of the period for which the AER may retain the 27
document or thing but so that the total period of retention does not 28
exceed 12 months. 29
(2) An application must be made before proceedings for the purpose for 30
which the document or thing was retained have been commenced. 31
(3) A magistrate may order such an extension if he or she is satisfied that-- 32
(a) it is in the interests of justice; and 33
(b) the total period of retention does not exceed 12 months; and 34
(c) retention of the document or other thing is necessary-- 35
(i) for the purposes of an investigation into whether a breach 36
of a relevant provision has occurred; or 37
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(ii) to enable evidence of a breach of a relevant provision to be 1
obtained for the purposes of a proceeding under this Law. 2
(4) If proceedings are commenced for the purpose for which the document 3
or thing was retained at any time before the expiry of the period 4
specified in an order under this section, the document or thing may be 5
retained until those proceedings (including any appeal) have been 6
completed despite those proceedings being completed after the period 7
specified in the order. 8
(5) At least 7 days prior to the hearing of an application under this section 9
by a magistrate, notice of the application must be sent to the owner of 10
the document or thing described in the application. 11
41 Obstruction of persons authorised to enter 12
A person must not, without reasonable excuse, obstruct or hinder an 13
authorised person in the exercise of a power under a search warrant 14
under this Division. 15
Maximum penalty: 16
(a) in the case of a natural person--$2 000; 17
(b) in the case of a body corporate--$10 000. 18
Division 3 General information gathering powers 19
42 Power to obtain information and documents in relation to performance 20
and exercise of functions and powers 21
(1) If the AER has reason to believe that a person is capable of providing 22
information or producing a document that the AER requires for the 23
performance or exercise of a function or power conferred on it under 24
this Law or the Rules, the AER may, by notice in writing, serve on that 25
person a notice (a relevant notice). 26
(2) A relevant notice may require the person to-- 27
(a) provide to the AER, by writing signed by that person or, in the 28
case of a body corporate, by a competent officer of the body 29
corporate, within the time and in the manner specified in the 30
notice, any information of the kind referred to in subsection (1); 31
or 32
(b) produce to the AER, or to a person specified in the notice acting 33
on its behalf, in accordance with the notice, any documents of the 34
kind referred to in subsection (1). 35
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(3) A person on whom a relevant notice is served must comply with the 1
relevant notice unless the person has a reasonable excuse. 2
Maximum penalty: 3
(a) in the case of a natural person--$2 000; 4
(b) in the case of a body corporate--$10 000. 5
(4) A person must not, in purported compliance with a relevant notice, 6
provide information that the person knows is false or misleading in a 7
material particular. 8
Maximum penalty: 9
(a) in the case of a natural person--$2 000; 10
(b) in the case of a body corporate--$10 000. 11
(5) It is a reasonable excuse for the purposes of subsection (3) if the person 12
served the relevant notice is not capable of complying with that notice. 13
(6) It is a reasonable excuse for a natural person to-- 14
(a) fail to provide information of the kind referred to in subsection 15
(1) to the AER; or 16
(b) fail to produce a document of the kind referred to in subsection 17
(1) to the AER, or to a person specified in a relevant notice acting 18
on behalf of the AER, 19
if to do so might tend to incriminate the person, or make the person 20
liable to a criminal penalty, under a law of this jurisdiction or a law of 21
another participating jurisdiction. 22
(7) It is not a reasonable excuse for a person to-- 23
(a) fail to provide information of the kind referred to in subsection 24
(1) to the AER; or 25
(b) fail to produce a document of the kind referred to in subsection 26
(1) to the AER, or to a person specified in a relevant notice acting 27
on behalf of the AER, 28
on the ground of any duty of confidence. 29
(8) This section does not require a person to-- 30
(a) provide information that is the subject of legal professional 31
privilege; or 32
(b) produce a document the production of which would disclose 33
information that is the subject of legal professional privilege. 34
(9) This section does not require a person to-- 35
(a) provide information that would disclose the contents of a 36
document prepared for the purposes of a meeting of the Cabinet 37
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National Gas Law Note
or a committee of the Cabinet of the Commonwealth or of a State 1
or a Territory; or 2
(b) produce a document prepared for the purposes of a meeting of the 3
Cabinet or a committee of the Cabinet of the Commonwealth or 4
of a State or a Territory; or 5
(c) provide information, or produce a document, that would disclose 6
the deliberations of the Cabinet or a committee of the Cabinet of 7
the Commonwealth or of a State or a Territory. 8
(10) A person incurs, by complying with a relevant notice, no liability for 9
breach of contract, breach of confidence or any other civil wrong. 10
Division 4 Regulatory information notices and general 11
regulatory information orders 12
Subdivision 1 Interpretation 13
43 Definitions 14
In this Division-- 15
contributing service has the meaning given by section 44; 16
scheme pipeline service provider means-- 17
(a) a covered pipeline service provider; or 18
(b) a service provider who provides or intends to provide pipeline 19
services by means of an international pipeline to which a price 20
regulation exemption applies; 21
related provider means a person who supplies a contributing service to 22
a scheme pipeline service provider. 23
44 Meaning of contributing service 24
(1) A contributing service is a service that the AER, in accordance with this 25
section, decides is a service that contributes in a material way to the 26
provision of a pipeline service by a scheme pipeline service provider. 27
(2) In deciding whether a service is a service that contributes in a material 28
way to the provision of a pipeline service by a scheme pipeline service 29
provider, the AER must have regard to-- 30
(a) the nature and kind of the service; 31
(b) when the service was first supplied; 32
(c) the nature and extent of the contribution of the service relative 33
to-- 34
(i) the pipeline service; and 35
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(ii) all other services supplied by the scheme pipeline service 1
provider; 2
(d) whether the service was previously supplied-- 3
(i) by the scheme pipeline service provider; or 4
(ii) directly or indirectly by an associate of the scheme 5
pipeline service provider; 6
(e) whether the service, together with other services, contributes in a 7
material way to the provision of pipeline services; 8
(f) any other matter specified under the Rules. 9
45 Meaning of general regulatory information order 10
A general regulatory information order is an order made by the AER in 11
accordance with this Division that requires each scheme pipeline 12
service provider of a specified class, or each related provider of a 13
specified class, to do either or both of the following: 14
(a) provide to the AER the information specified in the order; 15
(b) prepare, maintain or keep information specified in the notice in a 16
manner and form specified in the order. 17
46 Meaning of regulatory information notice 18
A regulatory information notice is a notice prepared and served by the 19
AER in accordance with this Division that requires the scheme pipeline 20
service provider, or a related provider, named in the notice to do either 21
or both of the following: 22
(a) provide to the AER the information specified in the notice; 23
(b) prepare, maintain or keep information specified in the notice in a 24
manner and form specified in the notice. 25
47 Division does not limit operation of information gathering powers under 26
Division 3 27
This Division does not limit the operation of Division 3. 28
Subdivision 2 Serving and making of regulatory information 29
instruments 30
48 Service and making of regulatory information instrument 31
(1) Subject to this Division, the AER, if it considers it reasonably necessary 32
for the performance or exercise of its functions or powers under this 33
Law or the Rules, may-- 34
(a) serve a regulatory information notice on a scheme pipeline 35
service provider or a related provider; or 36
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National Gas Law Note
(b) make a general regulatory information order. 1
(2) In considering whether it is reasonably necessary to serve a regulatory 2
information notice, or make a general regulatory information order, the 3
AER must have regard to-- 4
(a) the matter to be addressed by-- 5
(i) the service of the regulatory information notice; or 6
(ii) the making of the general regulatory information order; 7
and 8
(b) the likely costs that may be incurred by an efficient scheme 9
pipeline service provider or efficient related provider in 10
complying with the notice or order. 11
Note. The AER must also exercise its powers under this section in a manner 12
that will or is likely to contribute to the achievement of the national gas objective: 13
see section 28. 14
(3) A regulatory information notice must not be served, or a general 15
regulatory information order must not be made, solely for the purpose 16
of-- 17
(a) investigating breaches or possible breaches of provisions of this 18
Law, the Regulations or the Rules, including offences against this 19
Law; or 20
(b) instituting and conducting proceedings in relation to breaches of 21
provisions of this Law, the Regulations or the Rules, including 22
offences against this Law; or 23
(c) instituting and conducting appeals from decisions in proceedings 24
referred to in paragraph (b); or 25
(d) collecting information for the preparation of a service provider 26
performance report; or 27
(e) any application for review of a decision of the AER under 28
Chapter 8 Part 5. 29
49 Additional matters to be considered for related provider regulatory 30
information instruments 31
(1) This section applies if the AER is intending to-- 32
(a) serve a regulatory information notice on a related provider; or 33
(b) make a general regulatory information order that will apply to a 34
class of related providers. 35
(2) In addition to the matters set out in section 48(2), the AER, in 36
considering whether it is reasonably necessary to serve the regulatory 37
information notice, or make the general regulatory information order, 38
must have regard to-- 39
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(a) whether the scheme pipeline service provider being supplied a 1
contributing service by the related provider or related providers 2
to which the intended regulatory information instrument will 3
apply can-- 4
(i) provide the information to be specified in that instrument; 5
or 6
(ii) prepare, maintain or keep the information to be specified 7
in the particular manner and form to be specified in that 8
instrument; and 9
(b) the extent to which the related provider or related providers to 10
which the intended regulatory information instrument will apply 11
is, or are, supplying a contributing service on a genuinely 12
competitive basis; and 13
(c) the nature of any ownership or control between-- 14
(i) the scheme pipeline service provider being supplied a 15
contributing service by a related provider to which the 16
intended regulatory information instrument will apply; and 17
(ii) that related provider; and 18
(d) the nature of any ownership or control as between different 19
related providers supplying the contributing service to the 20
scheme pipeline service provider; and 21
(e) any other matter the AER considers relevant. 22
(3) For the purposes of subsection (2)(b), in considering whether a 23
contributing service is being supplied on a genuinely competitive basis, 24
the AER may take into account-- 25
(a) whether there is effective competition in the market for the 26
supply of the contributing service; and 27
(b) whether the related provider supplies the contributing service to 28
a scheme pipeline service provider under a contract, arrangement 29
or understanding entered into with that scheme pipeline service 30
provider following a competitive process for the awarding of the 31
right to enter into that contract, arrangement or understanding 32
involving persons who were not associates of the scheme pipeline 33
service provider. 34
50 AER must consult before publishing a general regulatory information 35
order 36
The AER must, in accordance with the Rules, consult with the public on 37
the general regulatory information order it intends to make before it 38
makes that order. 39
Note. See also section 65 about what the AER must and may do after receiving 40
submissions. 41
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51 Publication requirements for general regulatory information orders 1
(1) A general regulatory information order made under section 48(1)(b) 2
must be published on the AER's website as soon as practicable after it 3
is made. 4
(2) Notice of the making of a general regulatory information order must be 5
published in a newspaper circulating generally throughout Australia as 6
soon as practicable after it is made. 7
52 Opportunity to be heard before regulatory information notice is served 8
(1) The AER, before serving a regulatory information notice, must-- 9
(a) notify, in writing, the scheme pipeline service provider, or the 10
related provider, on whom the AER intends to serve the 11
regulatory information notice of its intention to do so; and 12
(b) give the scheme pipeline service provider, or the related provider, 13
a draft of the regulatory information notice it intends to serve. 14
(2) If the regulatory information notice to be served is an urgent notice, the 15
AER must, in a notice under subsection (1)-- 16
(a) identify the regulatory information notice to be served as an 17
urgent notice; and 18
(b) give its reasons, in writing, why the regulatory information notice 19
to be served is an urgent notice. 20
(3) A regulatory information notice is an urgent notice if-- 21
(a) under the notice the AER will require the scheme pipeline service 22
provider or related provider to provide information to the AER; 23
and 24
(b) that requirement has arisen because the AER considers it must 25
deal with or address a particular matter or thing in order for it to 26
make an AER economic regulatory decision; and 27
(c) the AER considers that, having regard to the time within which it 28
must make that AER economic regulatory decision, the time 29
within which the AER requires the information is of the essence. 30
(4) A notice under subsection (1) must-- 31
(a) invite the scheme pipeline service provider, or the related 32
provider, to make written representations to the AER as to 33
whether the AER should serve the regulatory information notice 34
on them; and 35
(b) specify the period within which the scheme pipeline service 36
provider, or the related provider, may make the representations. 37
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(5) The period that must be specified in accordance with subsection (4) 1
must be-- 2
(a) in the case of an urgent notice to be served--a period of not less 3
than 5 business days and not more than 10 business days 4
calculated from the date of the notice under subsection (1); 5
(b) in all other cases--a period of at least 20 business days calculated 6
from the date of the notice under subsection (1). 7
(6) The AER must consider the written representations made in accordance 8
with a notice under subsection (1) before making its decision in 9
accordance with this Division to serve the regulatory information 10
notice. 11
Subdivision 3 Form and content of regulatory information 12
instruments 13
53 Form and content of regulatory information instrument 14
(1) A regulatory information instrument-- 15
(a) must specify the information required to be-- 16
(i) provided to the AER; 17
(ii) prepared, maintained or kept in the particular manner and 18
form specified in the instrument; and 19
(b) may specify the manner and form in which the information 20
described in the instrument is required to be-- 21
(i) provided to the AER; 22
(ii) prepared, maintained or kept; and 23
(c) must state the reasons of the AER for requiring the information 24
described in the instrument to be-- 25
(i) provided to the AER; 26
(ii) prepared, maintained or kept in the particular manner and 27
form specified in the instrument; and 28
(d) in the case of an instrument requiring information to be provided 29
to the AER, must specify when the information must be provided. 30
(2) In the case of a regulatory information notice, the notice must name the 31
scheme pipeline service provider or the related provider to whom it 32
applies. 33
(3) In the case of a general regulatory information order, the order must 34
specify the class of scheme pipeline service provider, or related 35
provider, to whom the order applies. 36
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54 Further provision about the information that may be described in a 1
regulatory information instrument 2
Without limiting section 53(1)(a), the information that may be required 3
to be provided to the AER, or to be prepared, maintained or kept, may 4
include-- 5
(a) historic, current and forecast information (including financial 6
information); 7
(b) information that is or may be derived from other information in 8
the possession or control of the scheme pipeline service provider 9
or the related provider to whom the instrument applies; 10
(c) information to enable the AER to verify whether the scheme 11
pipeline service provider to whom the instrument applies is or has 12
been complying with Chapter 4; 13
(d) information to enable the AER to verify compliance with any 14
requirements for the allocation of costs between natural gas 15
services under-- 16
(i) the Rules; or 17
(ii) an applicable access arrangement. 18
55 Further provision about manner in which information must be provided 19
to AER or kept 20
Without limiting section 53(1)(b), a regulatory information instrument 21
may specify the information specified in the instrument-- 22
(a) be provided to the AER, or prepared, maintained or kept, on an 23
annual basis or some other basis, including on the occurrence of 24
a specified event or state of affairs; 25
(b) be provided to the AER, or prepared, maintained or kept, in 26
accordance with specified Rules; 27
(c) be provided to the AER, or prepared, maintained or kept, in 28
accordance with any document, code, standard, rule, 29
specification or method formulated, issued, prescribed or 30
published by the AER or any person, authority or body 31
whether-- 32
(i) wholly or partially or as amended by the instrument; or 33
(ii) as formulated, issued, prescribed or published at the time 34
the instrument is served or published or at any time before 35
the instrument is served or published; or 36
(iii) as amended from time to time; 37
Example. The AER may require a scheme pipeline service 38
provider to provide information in a form and manner that 39
complies with relevant accounting standards. 40
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(d) be verified by way of statutory declaration by an officer of the 1
scheme pipeline service provider, or of a related provider, to 2
whom the instrument applies; 3
(e) be audited-- 4
(i) by a class of person specified in the instrument before it is 5
provided to the AER; and 6
(ii) at the expense of the scheme pipeline service provider or 7
related provider to whom the instrument applies. 8
Subdivision 4 Compliance with regulatory information 9
instruments 10
56 Compliance with regulatory information notice that is served 11
On being served a regulatory information notice, a person named in the 12
notice must comply with the notice. 13
57 Compliance with general regulatory information order 14
(1) On publication of a general regulatory information order in accordance 15
with section 51(1), a person who is a member of the class of person to 16
which a general regulatory information order applies must comply with 17
the order. 18
(2) Subsection (1) does not apply to a person who has been given an 19
exemption under section 58. 20
58 Exemptions from compliance with general regulatory information order 21
(1) The AER may exempt a person, or a class of person, from complying 22
with section 57-- 23
(a) unconditionally or on specified conditions; or 24
(b) wholly or to the extent as is specified in the exemption. 25
(2) An exemption under this section must be in writing. 26
59 Assumptions where there is non-compliance with regulatory information 27
instrument 28
(1) This section applies if-- 29
(a) under a regulatory information instrument the AER-- 30
(i) requires a scheme pipeline service provider to provide 31
information to the AER for the purpose of enabling the 32
AER to make an AER economic regulatory decision 33
relating to the scheme pipeline service provider; or 34
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(ii) requires a related provider to provide information to the 1
AER that is relevant to the making of an AER economic 2
regulatory decision relating to a scheme pipeline service 3
provider; and 4
(b) the scheme pipeline service provider or related provider-- 5
(i) does not provide the information to the AER in accordance 6
with the applicable regulatory information instrument; or 7
(ii) provides information that is insufficient (when compared 8
to what was requested under the applicable regulatory 9
information instrument). 10
(2) Without limiting sections 56 and 57 and despite anything to the contrary 11
in this Law or the Rules, the AER-- 12
(a) may make the AER economic regulatory decision on the basis of 13
the information the AER has at the time it makes that decision; 14
and 15
(b) in making that decision, may make reasonable assumptions 16
(including assumptions adverse to the interests of the scheme 17
pipeline service provider) in respect of the matters the 18
information required under the regulatory information instrument 19
would have addressed had that information been provided as 20
required. 21
Subdivision 5 General 22
60 Providing to AER false and misleading information 23
A person must not, in purported compliance with a regulatory 24
information instrument requiring the person to provide information to 25
the AER, provide information to the AER that the person knows is false 26
or misleading in a material particular. 27
Maximum penalty: 28
(a) in the case of a natural person--$2 000; 29
(b) in the case of a body corporate--$10 000. 30
61 Person cannot rely on duty of confidence to avoid compliance with 31
regulatory information instrument 32
(1) A person must not refuse to comply with a regulatory information 33
instrument on the ground of any duty of confidence. 34
(2) A person incurs, by complying with a regulatory information 35
instrument, no liability for breach of contract, breach of confidence or 36
any other civil wrong. 37
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62 Legal professional privilege not affected 1
A regulatory information instrument, and sections 56 and 57, are not to 2
be taken as requiring a person to-- 3
(a) provide to the AER information that is the subject of legal 4
professional privilege; or 5
(b) produce a document to the AER the production of which would 6
disclose information that is the subject of legal professional 7
privilege. 8
63 Protection against self-incrimination 9
(1) It is a reasonable excuse for a natural person to whom section 56 applies 10
not to comply with a regulatory information notice served on the person 11
requiring the person to provide information to the AER if to do so might 12
tend to incriminate the person, or make the person liable to a criminal 13
penalty, under a law of this jurisdiction or another participating 14
jurisdiction. 15
(2) It is a reasonable excuse for a natural person to whom section 57 applies 16
not to comply with a general regulatory information order made 17
requiring the person to provide information to the AER if to do so might 18
tend to incriminate the person, or make the person liable to a criminal 19
penalty, under a law of this jurisdiction or another participating 20
jurisdiction. 21
Division 5 Service provider performance reports 22
64 Preparation of service provider performance reports 23
(1) Subject to this section, the AER may prepare a report on the financial 24
performance or operational performance of 1 or more scheme pipeline 25
service providers in providing pipeline services by means of a scheme 26
pipeline. 27
Note. The AER may only prepare a report under subsection (1) if the 28
preparation of the report will or is likely to contribute to the achievement of the 29
national gas objective: see section 28. 30
(2) A report prepared under this section may-- 31
(a) deal with the financial or operational performance of the scheme 32
pipeline service provider in relation to-- 33
(i) complying with pipeline service standards; and 34
(ii) standards relating to the provision of pipeline services to 35
users or end users; and 36
(iii) the profitability of scheme pipeline service providers in 37
providing pipeline services; and 38
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(b) if the AER considers it appropriate, deal with the performance of 1
the scheme pipeline service provider in relation to other matters 2
or things if that performance is directly related to the 3
performance or exercise by the AER of an AER economic 4
regulatory function or power. 5
(3) A report prepared under this section may include-- 6
(a) information provided to the AER by a person in compliance with 7
a regulatory information instrument; and 8
(b) in the case of a report dealing with the financial performance of 9
1 or more scheme pipeline service providers, a comparison of the 10
profitability of the scheme pipeline service providers to which the 11
report relates from the provision of pipeline services by them. 12
(4) Before preparing a report under this section, the AER must, in 13
accordance with the Rules, consult with the persons or bodies specified 14
by the Rules. 15
(5) The AER may publish a report prepared under this section on its 16
website. 17
Division 6 Miscellaneous matters 18
65 Consideration by the AER of submissions or comments made to it under 19
this Law or the Rules 20
If, under this Law or the Rules, the AER publishes a notice inviting 21
submissions in relation to the making of an AER economic regulatory 22
decision, the AER, in making the decision-- 23
(a) must consider every submission it receives within the period 24
specified in the notice; and 25
(b) may, but need not, consider a submission it receives after the 26
period specified in the notice expires. 27
66 Use of information provided under a notice under Division 3 or a 28
regulatory information instrument 29
The AER may use information provided to it by a person in compliance 30
with a notice under section 42 or a regulatory information instrument 31
for any purpose connected with the performance or exercise of a 32
function or power of the AER under this Law or the Rules. 33
67 AER to inform certain persons of decisions not to investigate breaches, 34
institute proceedings or serve infringement notices 35
(1) If the AER is given information by any person in relation to a breach or 36
a possible breach of this Law, the Regulations or the Rules by a person 37
but-- 38
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(a) decides not to investigate that breach or possible breach; or 1
(b) following an investigation, decides not to-- 2
(i) institute any proceedings under Chapter 8 in respect of that 3
breach or possible breach; or 4
(ii) serve an infringement notice in accordance with Chapter 8 5
Part 7 in respect of that breach or possible breach, 6
the AER must notify that person of that decision in writing. 7
(2) This section does not apply if the person gave the information to the 8
AER anonymously. 9
68 AER enforcement guidelines 10
(1) The AER may prepare guidelines about the matters it will have regard 11
to before-- 12
(a) making an application under section 231; or 13
(b) serving an infringement notice under section 277. 14
(2) The AER must publish guidelines prepared under subsection (1) on its 15
website. 16
Part 2 Functions and powers of the Australian Energy 17
Market Commission 18
Division 1 General 19
69 Functions and powers of the AEMC 20
(1) The AEMC has the following functions and powers: 21
(a) the Rule making functions and powers conferred on it under this 22
Law and the Regulations; 23
(b) the market development functions conferred on it under this Law 24
and the Rules; 25
(c) any other functions and powers conferred on it under this Law 26
and the Rules. 27
(2) The AEMC has power to do all things necessary or convenient to be 28
done for or in connection with the performance of its functions. 29
70 Delegations 30
Any delegation by the AEMC under section 20 of the Australian Energy 31
Market Commission Establishment Act 2004 of South Australia extends 32
to, and has effect for the purposes of, this Law, the Regulations and the 33
Rules. 34
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71 Confidentiality 1
Section 24 of the Australian Energy Market Commission Establishment 2
Act 2004 of South Australia has effect for the purposes of this Law, the 3
Regulations and the Rules as if it formed part of this Law. 4
Note. See also Chapter 10 Part 2 Division 2. 5
72 AEMC must have regard to national gas objective 6
In performing or exercising any function or power under this Law, the 7
Regulations or the Rules, the AEMC must have regard to the national 8
gas objective. 9
73 AEMC must have regard to MCE statements of policy principles in 10
relation to Rule making and reviews 11
The AEMC must have regard to any relevant MCE statement of policy 12
principles-- 13
(a) in making a Rule; or 14
(b) in conducting a review under section 83. 15
Division 2 Rule making functions and powers of the AEMC 16
74 Subject matter for National Gas Rules 17
(1) Subject to this Division, the AEMC, in accordance with this Law and 18
the Regulations, may make Rules, to be known, collectively, as the 19
"National Gas Rules", for or with respect to-- 20
(a) regulating-- 21
(i) access to pipeline services; 22
(ii) the provision of pipeline services; 23
(iii) the collection, use, disclosure, copying, recording, 24
management and publication of information in relation to 25
natural gas services; 26
(b) any matter or thing contemplated by this Law, or is necessary or 27
expedient for the purposes of this Law. 28
Note. The procedure for the making of a Rule by the AEMC is set out in 29
Chapter 9 Part 3. 30
(2) Without limiting subsection (1), the AEMC, in accordance with this 31
Law and the Regulations, may make Rules for or with respect to any 32
matter or thing specified in Schedule 1 to this Law. 33
(3) Rules made by the AEMC in accordance with this Law and the 34
Regulations may-- 35
(a) be of general or limited application; 36
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(b) vary according to the persons, times, places or circumstances to 1
which they are expressed to apply; 2
(c) confer functions or powers on, or leave any matter or thing to be 3
decided or determined by-- 4
(i) the AER, the AEMC or the Bulletin Board operator; or 5
(ii) any panel or committee established by the AEMC; or 6
(iii) any other body established, or person appointed, in 7
accordance with the Rules; 8
(d) confer rights or impose obligations on any person or a class of 9
person (other than the AER or the AEMC); 10
(e) confer a function on the AER, the AEMC or the Bulletin Board 11
operator to make or issue guidelines, tests, standards, procedures 12
or any other document (however described) in accordance with 13
the Rules, including guidelines, tests, standards, procedures or 14
any other document (however described) that leave any matter or 15
thing to be determined by the AER, the AEMC or the Bulletin 16
Board operator; 17
(f) empower or require any person (other than a person referred to in 18
paragraph (e)) or body to make or issue guidelines, tests, 19
standards, procedures or any other document (however 20
described) in accordance with the Rules; 21
(g) apply, adopt or incorporate wholly or partially, or as amended by 22
the Rules, the provisions of any standard, rule, specification, 23
method or document (however described) formulated, issued, 24
prescribed or published by any person, authority or body 25
whether-- 26
(i) as formulated, issued, prescribed or published at the time 27
the Rules are made or at any time before the Rules are 28
made; or 29
(ii) as amended from time to time; 30
(h) confer a power of direction on the AER, the AEMC or the 31
Bulletin Board operator to require a person conferred a right, or 32
on whom an obligation is imposed, under the Rules to comply 33
with-- 34
(i) a guideline, test, standard, procedure or other document 35
(however described) referred to in paragraph (e) or (f); or 36
(ii) a standard, rule, specification, method or document 37
(however described) referred to in paragraph (g); 38
(i) if this section authorises or requires Rules that regulate any 39
matter or thing, prohibit that matter or thing or any aspect of that 40
matter of thing; 41
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(j) provide for the review of, or a right of appeal against, a decision 1
or determination made under the Rules and for that purpose, 2
confer jurisdiction on the Court; 3
(k) require a form prescribed by or under the Rules, or information 4
or documents included in, attached to or given with the form, to 5
be verified by statutory declaration; 6
(l) in a specified case or class of case, exempt a person or body 7
performing or exercising a function or power, or conferred a 8
right, or on whom an obligation is imposed, under the Rules or a 9
class of any such person or body from complying with a 10
provision, or a part of a provision, of the Rules; 11
(m) provide for the modification or variation of a provision of the 12
Rules (with or without substitution of a provision of the Rules or 13
a part of a provision of the Rules) as it applies to a person or body 14
performing or exercising a function or power, or conferred a 15
right, or on whom an obligation is imposed, under the Rules or a 16
class of any such person or body; 17
(n) confer an immunity on, or limit the liability of, any person or 18
body performing or exercising a function or power, or conferred 19
a right, or on whom an obligation is imposed under the Rules; 20
(o) contain provisions of a savings or transitional nature consequent 21
on the amendment or revocation of a Rule. 22
75 Rules relating to MCE or Ministers of participating jurisdictions require 23
MCE consent 24
The AEMC must not, without the consent of the MCE, make a Rule that 25
confers a right or function, or imposes an obligation, on the MCE or a 26
Minister of a participating jurisdiction. 27
Note. The term function is defined in clause 10 of Schedule 2 to this Law to 28
include "duty". 29
76 AEMC must not make Rules that create criminal offences or impose civil 30
penalties for breaches 31
The AEMC must not make a Rule that-- 32
(a) creates an offence for a breach of a provision of the Rules; or 33
(b) provides for a criminal penalty or civil penalty for a breach of a 34
provision of the Rules. 35
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77 Documents etc applied, adopted and incorporated by Rules to be 1
publicly available 2
(1) The AEMC must make publicly available-- 3
(a) every standard, rule, specification, method or document 4
(however described) formulated, issued, prescribed or published 5
by any person, authority or body that is applied, adopted or 6
incorporated by a Rule; and 7
(b) if a standard, rule, specification, method or document (however 8
described) formulated, issued, prescribed or published by any 9
person, authority or body is applied, adopted or incorporated by 10
a Rule as amended from time to time--any amendment to that 11
standard, rule, specification, method or document. 12
(2) For the purposes of subsection (1), the AEMC makes a standard, rule, 13
specification, method or document (however described) formulated, 14
issued, prescribed or published by any person, authority or body 15
applied, adopted or incorporated by any Rule publicly available if the 16
AEMC-- 17
(a) publishes the standard, rule, specification, method or document 18
on the AEMC's website; or 19
(b) specifies a place from which the standard, rule, specification, 20
method or document may be obtained or purchased (as the case 21
requires). 22
Division 3 Committees, panels and working groups of the 23
AEMC 24
78 Establishment of committees, panels and working groups 25
The AEMC may establish committees, panels and working groups to-- 26
(a) provide advice on specified aspects of the AEMC's functions; or 27
(b) undertake any other activity in relation to the AEMC's functions 28
as is specified by the AEMC. 29
Division 4 MCE directed reviews 30
79 MCE directions 31
(1) The MCE may give a written direction to the AEMC that the AEMC 32
conduct a review into-- 33
(a) any matter relating to a market for gas (including services 34
provided in a market for gas); or 35
(b) any matter relating to access to pipelines or to pipeline services 36
provided by means of pipelines; or 37
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(c) the operation and effectiveness of the Rules; or 1
(d) any matter relating to the Rules; or 2
(e) the effectiveness of competition in a market for gas for the 3
purpose of giving advice about whether to retain, remove or 4
reintroduce price controls on prices for retail gas services. 5
(2) A direction given to the AEMC under this section is binding on the 6
AEMC and must be complied with despite anything to the contrary in 7
the Rules. 8
(3) A direction given under this section must be published in the South 9
Australian Government Gazette. 10
(4) The AEMC must cause a direction given under this section to be 11
published on its website. 12
80 Terms of reference 13
(1) The terms of reference of a MCE directed review will be as specified in 14
the direction given by the MCE. 15
Example. The terms of reference may require a MCE directed review to be 16
conducted-- 17
(a) about a specific matter within a specified time; or 18
(b) whenever a specified event occurs; or 19
(c) on an annual basis. 20
(2) Without limiting subsection (1), the MCE may in its direction to the 21
AEMC do 1 or more of the following: 22
(a) require the AEMC to give a report on a MCE directed review to 23
the MCE within a specified period; 24
(b) require the AEMC to make the report on a MCE directed review 25
publicly available or available to specified persons or bodies; 26
(c) require the AEMC to make a draft report publicly available or 27
available to specified persons or bodies during a MCE directed 28
review; 29
(d) require the AEMC to consider specified matters in the conduct of 30
a MCE directed review; 31
(e) require the AEMC to have specified objectives in the conduct of 32
a MCE directed review which need not be limited by the national 33
gas objective; 34
(f) require the AEMC to assess a particular matter in relation to 35
services provided in a market for gas against specified criteria or 36
a specified methodology; 37
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(g) require the AEMC-- 1
(i) to assess a particular matter in relation to services provided 2
in a market for gas; and 3
(ii) to develop appropriate and relevant criteria, or an 4
appropriate and relevant methodology, for the purpose of 5
the required assessment; 6
(h) give the AEMC other specific directions in respect of the conduct 7
of a MCE directed review. 8
81 Notice of MCE directed review 9
(1) The AEMC must publish notice of a MCE directed review on its 10
website and in a newspaper circulating generally throughout Australia. 11
(2) The AEMC must publish a further such notice if a term of reference or 12
a requirement or direction relating to the MCE directed review is varied. 13
82 Conduct of MCE directed review 14
Subject to any requirement or direction of the MCE, a MCE directed 15
review-- 16
(a) may be conducted in such manner as the AEMC considers 17
appropriate; and 18
(b) may (but need not) involve public hearings. 19
Division 5 Other reviews 20
83 Rule reviews by the AEMC 21
(1) The AEMC may conduct a review into-- 22
(a) the operation and effectiveness of the Rules; or 23
(b) any matter relating to the Rules. 24
(2) A review-- 25
(a) may be conducted in such manner as the AEMC considers 26
appropriate; and 27
(b) may (but need not) involve public hearings. 28
(3) During the course of a review, the AEMC may-- 29
(a) consult with any person or body that it considers appropriate; 30
(b) establish working groups to assist it in relation to any aspect, or 31
any matter or thing that is the subject of, the review; 32
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(c) commission reports by other persons on its behalf on any aspect, 1
or matter or thing that is the subject of, the review; 2
(d) publish discussion papers or draft reports. 3
(4) At the completion of a review, the AEMC must-- 4
(a) give a copy of the report to the MCE; and 5
(b) publish a report or a version of a report from which confidential 6
information has been omitted in accordance with section 331. 7
Division 6 Miscellaneous matters 8
84 AEMC must publish and make available up to date versions of Rules 9
The AEMC must, at all times-- 10
(a) maintain, on its website, a copy of the National Gas Rules, as in 11
force from time to time; and 12
(b) make copies of the National Gas Rules, as in force from time to 13
time, available to the public for inspection at its offices during 14
business hours. 15
85 Fees 16
(1) The AEMC may charge a fee specified, or a fee calculated in 17
accordance with a formula or methodology specified, in the Regulations 18
for services provided by it in performing or exercising any of its 19
functions or powers under this Law, the Regulations or the Rules. 20
(2) The fee must not be such as to amount to taxation. 21
86 Immunity from personal liability of AEMC officials 22
(1) No personal liability attaches to an AEMC official for an act or 23
omission in good faith in the performance or exercise, or purported 24
performance or exercise of a function or power under this Law, the 25
Regulations or the Rules. 26
(2) A liability that would, but for subsection (1), lie against an AEMC 27
official lies instead against the AEMC. 28
(3) In this section-- 29
AEMC official means-- 30
(a) a member of the AEMC; 31
(b) the chief executive of the AEMC; 32
(c) a member of staff appointed by the AEMC. 33
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Part 3 Functions and powers of Ministers of 1
participating jurisdictions 2
87 Functions and powers of Minister of this participating jurisdiction under 3
this Law 4
(1) The Minister of this participating jurisdiction has the functions and 5
powers conferred on him or her under this Law, the Regulations or the 6
Rules. 7
(2) The Minister of this participating jurisdiction has power to do all things 8
necessary or convenient to be done for or in connection with the 9
performance of his or her functions. 10
(3) In this section-- 11
Minister of this participating jurisdiction means the Minister that 12
administers the Act of this jurisdiction that applies this Law as a law of 13
this jurisdiction. 14
88 Functions and powers of Commonwealth Minister under this Law 15
(1) The Commonwealth Minister has the functions and powers conferred 16
on him or her under this Law, the Regulations or the Rules. 17
(2) The Commonwealth Minister has power to do all things necessary or 18
convenient to be done for or in connection with the performance of his 19
or her functions. 20
Part 4 Functions and powers of the NCC 21
89 Functions and powers of NCC under this Law 22
(1) The NCC has the functions and powers conferred on it under this Law, 23
the Regulations or the Rules. 24
(2) The NCC has power to do all things necessary or convenient to be done 25
for or in connection with the performance of its functions. 26
90 Confidentiality 27
(1) The NCC must take all reasonable measures to protect from 28
unauthorised use or disclosure information given to it in confidence in, 29
or in connection with, the performance of its functions or the exercise 30
of its powers under this Law, the Regulations or the Rules. 31
(2) For the purposes of subsection (1), the disclosure of information as 32
required or permitted by this Law, a law of the Commonwealth, a State 33
or Territory is taken to be authorised use and disclosure of the 34
information. 35
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(3) Disclosing information to 1 of the following is authorised use and 1
disclosure of the information: 2
(a) the ACCC; 3
(b) the AER; 4
(c) the ERA; 5
(d) the AEMC; 6
(e) any staff or consultant assisting a body mentioned in paragraph 7
(a) to (d) in performing its functions or exercising its powers; 8
(f) any other person or body prescribed by the Regulations for the 9
purpose of this paragraph. 10
(4) A person or body to whom information is disclosed under subsection (3) 11
may use the information for any purpose connected with the 12
performance of the functions, or the exercise of the powers, of the 13
person or body. 14
(5) The NCC may impose conditions to be complied with in relation to 15
information disclosed under subsection (3). 16
(6) For the purposes of subsection (1), the use or disclosure of information 17
by a person for the purposes of performing the person's functions, or 18
exercising the person's powers, as-- 19
(a) a Councillor or a person referred to in section 29M of the Trade 20
Practices Act 1974 of the Commonwealth; or 21
(b) a person who is authorised to perform or exercise a function or 22
power of, or on behalf of, the NCC, 23
is taken to be authorised use and disclosure of the information. 24
(7) Regulations made for the purposes of this section may specify uses of 25
information and disclosures of information that are authorised uses and 26
authorised disclosures for the purposes of this section. 27
(8) Nothing in any of the above subsections limits-- 28
(a) anything else in any of those subsections; or 29
(b) what may otherwise constitute, for the purposes of subsection (1), 30
authorised use or disclosure of information. 31
(9) In this section-- 32
Councillor has the same meaning as in the Trade Practices Act 1974 of 33
the Commonwealth. 34
Note. See also Chapter 10 Part 2 Division 2. 35
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Part 5 Functions and powers of Tribunal 1
91 Functions and powers of Tribunal under this Law 2
(1) The Tribunal has the functions and powers conferred on it under 3
Chapter 8 Part 5 and any Regulations made for the purposes of that 4
Division. 5
(2) The Tribunal has power to do all things necessary or convenient to be 6
done for or in connection with the performance of its functions. 7
Chapter 3 Coverage and classification of pipelines 8
Part 1 Coverage of pipelines 9
Division 1 Coverage determinations 10
92 Application for recommendation that a pipeline be a covered pipeline 11
(1) Any person may apply for a determination that a pipeline be a covered 12
pipeline (a coverage determination). 13
(2) An application for a coverage determination-- 14
(a) is to be made to the NCC in accordance with the Rules; and 15
(b) must contain the information required by the Rules; and 16
(c) must be accompanied by the fee prescribed by the Regulations (if 17
any). 18
93 Application to be dealt with in accordance with the Rules 19
Subject to section 94, on receiving an application under section 92 the 20
NCC must deal with it in accordance with the Rules. 21
94 NCC may defer consideration of application in certain cases 22
(1) This section applies if an application under section 92 is made in 23
relation to a proposed pipeline after-- 24
(a) an application has been made to the AER under the Rules for the 25
approval, by the AER, of the tender process for the construction 26
and operation of the proposed pipeline as a competitive tender 27
process; or 28
(b) a tender approval decision has been made in respect of the tender 29
process for the construction and operation of the proposed 30
pipeline. 31
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(2) The NCC may defer consideration of whether to make a 1
recommendation in respect of the application until-- 2
(a) the application for the approval, by the AER, of the tender 3
process for the construction and operation of the proposed 4
pipeline as a competitive tender process has been rejected by the 5
AER under the Rules; or 6
(b) the tender approval decision-- 7
(i) has been revoked under the Rules; or 8
(ii) has lapsed as provided under the Rules. 9
95 NCC coverage recommendation 10
(1) Subject to sections 94 and 96, the NCC must recommend to the relevant 11
Minister that the pipeline the subject of the application-- 12
(a) be a covered pipeline; or 13
(b) not be a covered pipeline. 14
Note. See also Chapter 3 Part 2 Division 1 Subdivision 1. 15
(2) A recommendation under this section must-- 16
(a) be made in accordance with this Law and the Rules; and 17
(b) be made within the time specified by the Rules; and 18
(c) contain the information required by the Rules; and 19
(d) be given to the persons specified by the Rules; and 20
(e) be made publicly available in accordance with the Rules. 21
(3) A recommendation under this section may recommend an outcome 22
different from the outcome sought in the application under section 92. 23
Example. An applicant may apply for a determination that the whole of a 24
pipeline be a covered pipeline. The NCC may recommend that only a part of the 25
pipeline the subject of the application be covered or may recommend that the 26
pipeline not be covered. 27
(4) A recommendation under this section must be delivered to the relevant 28
Minister without delay. 29
96 NCC must not make coverage recommendation if tender approval 30
decision becomes irrevocable 31
Despite anything to the contrary in this Division, the NCC-- 32
(a) must not make a recommendation under section 95 if the pipeline 33
is the subject of a tender approval decision that-- 34
(i) has not lapsed as provided under the Rules; or 35
(ii) is not revoked under the Rules; and 36
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(b) must, for the purposes of paragraph (a), treat the application as 1
having never been made. 2
97 Principles governing the making of a coverage recommendation 3
(1) In making a coverage recommendation, the NCC-- 4
(a) must give effect to the pipeline coverage criteria; and 5
(b) in deciding whether or not the pipeline coverage criteria are 6
satisfied must have regard to the national gas objective. 7
(2) The NCC gives effect to the pipeline coverage criteria as follows: 8
(a) if the NCC is satisfied that all the pipeline coverage criteria are 9
satisfied in relation to the pipeline--the recommendation must be 10
in favour of the pipeline being a covered pipeline; 11
(b) if the NCC is not satisfied that all the pipeline coverage criteria 12
are satisfied in relation to the pipeline--the recommendation 13
must be against the pipeline being a covered pipeline. 14
98 Initial classification decision to be made as part of recommendation 15
(1) The NCC must, as part of a coverage recommendation, classify the 16
pipeline the subject of an application under section 92 as a transmission 17
pipeline or a distribution pipeline (an initial classification decision). In 18
doing so, the NCC must apply the pipeline classification criterion. 19
(2) The NCC must as part of an initial classification decision-- 20
(a) if it classifies the pipeline the subject of the application as a 21
transmission pipeline--determine whether the transmission 22
pipeline is also a cross boundary transmission pipeline; 23
(b) if it classifies the pipeline the subject of the application as a 24
distribution pipeline--determine whether the distribution 25
pipeline is also a cross boundary distribution pipeline. 26
(3) The NCC must also determine, as part of an initial classification 27
decision, the participating jurisdiction with which the pipeline the 28
subject of the application under section 92 is most closely connected if 29
the NCC determines the pipeline is also a cross boundary distribution 30
pipeline. In doing so, the NCC must apply the pipeline classification 31
criterion. 32
99 Relevant Minister's determination on application 33
(1) On receiving a coverage recommendation, the relevant Minister must 34
decide whether to make a coverage determination in respect of the 35
pipeline to which the recommendation relates. 36
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(2) The relevant Minister must use his or her best endeavours to make the 1
decision within 20 business days after receiving the coverage 2
recommendation. 3
(3) If the relevant Minister is unable to make the decision within the period 4
specified under subsection (2), he or she must make the decision as soon 5
as reasonably practicable after the end of the specified period. 6
(4) The relevant Minister, for the purpose of making the decision, may 7
request submissions or comments in relation to an application under 8
section 92. 9
(5) A coverage determination or a decision not to make a coverage 10
determination must-- 11
(a) be made in accordance with this Law and the Rules; and 12
(b) contain the information required by the Rules; and 13
(c) be given to the persons specified by the Rules; and 14
(d) be made publicly available in accordance with the Rules. 15
(6) In the case of a coverage determination, the determination must specify 16
the date the determination takes effect. 17
(7) A coverage determination may have an outcome different to the 18
outcome-- 19
(a) sought in the application under section 92; or 20
(b) of the coverage recommendation. 21
Example. An applicant may apply for a determination that the whole of a 22
pipeline be a covered pipeline. The NCC may recommend that only a part of the 23
pipeline the subject of the application be covered. The relevant Minister may 24
determine that different parts of the pipeline to those recommended by the NCC 25
be covered. 26
100 Principles governing the making of a coverage determination or 27
decision not to do so 28
(1) In deciding whether to make a coverage determination under this 29
Division, the relevant Minister-- 30
(a) must give effect to the pipeline coverage criteria; and 31
(b) in deciding whether or not the pipeline coverage criteria are 32
satisfied in relation to the pipeline-- 33
(i) must have regard to the national gas objective; and 34
(ii) must have regard to the coverage recommendation; and 35
(iii) must take into account any submissions or comments he or 36
she receives on a request under section 99(4); and 37
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(iv) may take into account any relevant submissions and 1
comments made to the NCC by the public under the Rules 2
in relation to the application. 3
(2) The relevant Minister gives effect to the pipeline coverage criteria as 4
follows: 5
(a) if the relevant Minister is satisfied that all the pipeline coverage 6
criteria are satisfied in relation to the pipeline--the Minister must 7
make a coverage determination; 8
(b) if the relevant Minister is not satisfied that all the pipeline 9
coverage criteria are satisfied in relation to the pipeline--the 10
Minister must not make a coverage determination. 11
101 Operation and effect of coverage determination 12
The pipeline the subject of a coverage determination becomes a covered 13
pipeline-- 14
(a) when the coverage determination takes effect; and 15
(b) continues to be a covered pipeline while the coverage 16
determination remains in effect. 17
Division 2 Coverage revocation determinations 18
102 Application for a determination that a pipeline no longer be a covered 19
pipeline 20
(1) Any person may apply for a determination that a covered pipeline no 21
longer be a covered pipeline (a coverage revocation determination). 22
(2) An application for a coverage revocation determination-- 23
(a) is to be made to the NCC in accordance with the Rules; and 24
(b) must contain the information required by the Rules; and 25
(c) must be accompanied by the fee prescribed by the Regulations (if 26
any). 27
103 Application to be dealt with in accordance with the Rules 28
On receiving an application under section 102, the NCC must deal with 29
it in accordance with the Rules. 30
104 NCC coverage revocation recommendation 31
(1) The NCC must make a recommendation to the relevant Minister as to 32
whether the covered pipeline the subject of the application should 33
continue to be a covered pipeline. 34
Note. See also section 119. 35
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(2) A recommendation under this section must-- 1
(a) be made in accordance with this Law and the Rules; and 2
(b) be made within the time specified by the Rules; and 3
(c) contain the information required by the Rules; and 4
(d) be given to the persons specified by the Rules; and 5
(e) be made publicly available in accordance with the Rules. 6
(3) A recommendation under this section may recommend an outcome 7
different from the outcome sought in the application under section 102. 8
Example. A service provider may apply for a determination that revokes the 9
coverage of the covered pipeline by means of which the provider provides 10
pipeline services. The NCC may recommend that the coverage of the covered 11
pipeline be only partly revoked or not be revoked. 12
(4) A recommendation under this section must be delivered to the relevant 13
Minister without delay. 14
105 Principles governing the making of a coverage revocation 15
recommendation 16
(1) In making a coverage revocation recommendation, the NCC-- 17
(a) must give effect to the pipeline coverage criteria; and 18
(b) in deciding whether or not the pipeline coverage criteria are 19
satisfied must have regard to the national gas objective. 20
(2) The NCC gives effect to the pipeline coverage criteria as follows: 21
(a) if the NCC is satisfied that all the pipeline coverage criteria are 22
satisfied in relation to the pipeline--the recommendation must be 23
in favour of the pipeline continuing to be a covered pipeline; 24
(b) if the NCC is not satisfied that all the pipeline coverage criteria 25
are satisfied in relation to the pipeline--the recommendation 26
must be in favour of the pipeline no longer being a covered 27
pipeline. 28
106 Relevant Minister's determination on application 29
(1) On receiving a coverage revocation recommendation, the relevant 30
Minister must decide whether to make a coverage revocation 31
determination in respect of the pipeline to which the recommendation 32
relates. 33
(2) The relevant Minister must use his or her best endeavours to make the 34
decision within 20 business days after receiving the coverage 35
revocation recommendation. 36
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(3) If the relevant Minister is unable to make the decision within the period 1
specified under subsection (2), he or she must make the decision as soon 2
as reasonably practicable after the end of the specified period. 3
(4) The relevant Minister, for the purpose of making the decision, may 4
request submissions or comments in relation to an application under 5
section 102. 6
(5) A coverage revocation determination or a decision not to make a 7
coverage revocation determination must-- 8
(a) be made in accordance with this Law and the Rules; and 9
(b) contain the information required by the Rules; and 10
(c) be given to the persons specified by the Rules; and 11
(d) be made publicly available in accordance with the Rules. 12
(6) In the case of a coverage revocation determination, the determination 13
must specify the date the determination takes effect. 14
(7) A coverage revocation determination may have an outcome different to 15
the outcome-- 16
(a) sought in the application under section 102; or 17
(b) of the coverage revocation recommendation. 18
Example. A service provider may apply for a determination that revokes the 19
coverage of the covered pipeline by means of which the provider provides 20
pipeline services. The NCC may recommend that the coverage of the covered 21
pipeline be only partly revoked. The relevant Minister may make a determination 22
that revokes coverage of different parts of the covered pipeline to those parts in 23
relation to which the NCC recommended coverage be revoked. 24
107 Principles governing the making of a coverage revocation determination 25
or decision not to do so 26
(1) In deciding whether to make a coverage revocation determination under 27
this Division, the relevant Minister-- 28
(a) must give effect to the pipeline coverage criteria; and 29
(b) in deciding whether or not the pipeline coverage criteria are 30
satisfied in relation to the pipeline-- 31
(i) must have regard to the national gas objective; and 32
(ii) must have regard to the coverage revocation 33
recommendation; and 34
(iii) must take into account any submissions or comments he or 35
she receives on a request under section 106(4); and 36
(iv) may take into account any relevant submissions and 37
comments made to the NCC by the public under the Rules 38
in relation to the application. 39
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(2) The relevant Minister gives effect to the pipeline coverage criteria as 1
follows: 2
(a) if the relevant Minister is satisfied that all the pipeline coverage 3
criteria are satisfied in relation to the pipeline--the Minister must 4
not make a coverage revocation determination; 5
(b) if the relevant Minister is not satisfied that all the pipeline 6
coverage criteria are satisfied in relation to the pipeline--the 7
Minister must make a coverage revocation determination. 8
108 Operation and effect of coverage revocation determination 9
The pipeline the subject of a coverage revocation determination ceases 10
to be a covered pipeline when the coverage revocation determination 11
takes effect. 12
Part 2 Light regulation of covered pipeline services 13
Division 1 Making of light regulation determinations 14
Subdivision 1 Decisions when pipeline is not a covered 15
pipeline 16
109 Application of Subdivision 17
This Subdivision applies if-- 18
(a) an application has been made under section 92 for a coverage 19
determination; and 20
(b) the pipeline the subject of the application is not a designated 21
pipeline. 22
110 NCC's decision on light regulation of pipeline services 23
(1) The NCC must decide whether to make a determination that the pipeline 24
services provided or to be provided by means of the pipeline are light 25
regulation services (a light regulation determination). 26
(2) The NCC must make its decision under subsection (1)-- 27
(a) at the same time as it makes the coverage recommendation; and 28
(b) within the time it must make the coverage recommendation. 29
(3) A light regulation determination or a decision not to make a light 30
regulation determination must-- 31
(a) be made in accordance with this Law and the Rules; and 32
Note. For example, see section 122. 33
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(b) be attached to the coverage recommendation; and 1
(c) contain the information required by the Rules. 2
Note. If the NCC makes a light regulation determination, and the relevant 3
Minister makes the coverage determination, the service provider may submit a 4
limited access arrangement in respect of the light regulation services to the AER 5
for approval: see section 116. 6
Subdivision 2 Decisions when pipeline is a covered pipeline 7
111 Application of Subdivision 8
This Subdivision applies if a service provider provides pipelines 9
services-- 10
(a) by means of a covered pipeline that is not a designated pipeline; 11
and 12
(b) to which an applicable access arrangement approved or made 13
under a full access arrangement decision applies. 14
112 Application 15
(1) A service provider may apply to the NCC for a determination that 16
pipeline services provided by the service provider by means of a 17
covered pipeline be light regulation services (a light regulation 18
determination). 19
(2) An application must-- 20
(a) be in accordance with the Rules; and 21
(b) contain the information required by the Rules. 22
(3) An application may only be made in respect of all of the pipeline 23
services provided by means of the covered pipeline. 24
113 Application to be dealt with in accordance with the Rules 25
On receiving an application under section 112, the NCC must deal with 26
it in accordance with the Rules. 27
114 NCC's decision on light regulation of pipeline services 28
(1) The NCC must decide whether to make a light regulation determination 29
within-- 30
(a) 4 months after receiving an application under section 112; or 31
(b) if the Rules specify a later period, that period. 32
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(2) A light regulation determination or a decision not to make a light 1
regulation determination must-- 2
(a) be made in accordance with this Law and the Rules; and 3
Note. For example, see section 122. 4
(b) contain the information required by the Rules; and 5
(c) be given to the persons specified by the Rules; and 6
(d) be made publicly available in accordance with the Rules. 7
Note. If the NCC makes a light regulation determination, the service provider 8
may submit a limited access arrangement in respect of the light regulation 9
services to the AER for approval: see section 116. 10
Subdivision 3 Operation and effect of light regulation 11
determinations 12
115 When light regulation determinations take effect 13
(1) A light regulation determination takes effect-- 14
(a) in the case of a light regulation determination made under 15
Subdivision 1--on the day the relevant coverage determination 16
takes effect; 17
(b) in the case of a light regulation determination made under 18
Subdivision 2--60 business days after the light regulation 19
determination is made. 20
(2) A light regulation determination continues in operation until-- 21
(a) it is revoked by operation of section 117(5); or 22
(b) a decision under section 119(2) or 120 takes effect; or 23
(c) it is revoked by operation of section 123(2); or 24
(d) it is revoked by operation of section 124. 25
116 Submission of limited access arrangement for light regulation services 26
(1) A service provider may, in respect of light regulation services the 27
service provider provides or intends to provide, submit a limited access 28
arrangement to the AER for approval by the AER under the Rules. 29
(2) If the service provider chooses to submit a limited access arrangement 30
in accordance with subsection (1), the limited access arrangement 31
must-- 32
(a) be submitted in accordance with the Rules; and 33
(b) contain the information required by the Rules. 34
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(3) A service provider must submit to the AER, for approval by the AER 1
under the Rules, revisions to an applicable access arrangement that is a 2
limited access arrangement and that applies to the light regulation 3
services the provider provides-- 4
(a) in accordance with the Rules; and 5
(b) within the period specified by the Rules. 6
Division 2 Revocation of light regulation determinations 7
Subdivision 1 On advice from service providers 8
117 Advice by service provider that light regulation services should cease to 9
be light regulation services 10
(1) A service provider may advise the NCC that it wishes that the pipeline 11
services it provides cease to be light regulation services. 12
(2) An advice under subsection (1) must be in writing. 13
(3) On receiving an advice under subsection (1), the NCC must, without 14
delay, publish notice of receipt of that advice-- 15
(a) on its website; and 16
(b) in a newspaper circulating generally throughout Australia. 17
(4) On publication of a notice under subsection (3) the service provider 18
must comply with section 132. 19
(5) The light regulation determination applying to the pipeline services is, 20
by force of this section, revoked on the same day that an access 21
arrangement that applies to the pipeline services provided by that 22
service provider is, as the case requires, approved or made under a full 23
access arrangement decision. 24
(6) On the revocation of the light regulation determination the pipeline 25
services to which the light regulation determination applied cease to be 26
light regulation services. 27
Subdivision 2 On application by persons other than service 28
providers 29
118 Application (other than by service provider) for revocation of light 30
regulation determinations 31
(1) A person (other than the service provider who provides light regulation 32
services) may apply to the NCC for the revocation of a light regulation 33
determination relating to those services. 34
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(2) An application under subsection (1) must-- 1
(a) be in accordance with the Rules; and 2
(b) contain the information required by the Rules. 3
119 Decisions on applications made around time of applications for 4
coverage revocation determinations 5
(1) This section applies if an application is made under section 118 and-- 6
(a) there is an application for a coverage revocation determination 7
under section 102 under consideration-- 8
(i) in respect of the covered pipeline by means of which the 9
light regulation services the subject of the application 10
under section 118 are provided; and 11
(ii) in respect of which the NCC has not made a coverage 12
revocation recommendation; or 13
(b) an application for a coverage revocation determination is made 14
under section 102 in respect of the covered pipeline by means of 15
which the light regulation services the subject of the application 16
under section 118 are provided-- 17
(i) after the application under section 118; but 18
(ii) before the NCC makes its decision in respect of the 19
application under section 118. 20
(2) Despite anything to the contrary in this Part, the NCC must make its 21
decision in respect of the application under this section. 22
(3) On receiving the application under section 118, the NCC must decide 23
whether to revoke the light regulation determination. 24
(4) The NCC must make its decision under subsection (3)-- 25
(a) at the same time as it makes the coverage revocation 26
recommendation; and 27
(b) within the time it must make the coverage revocation 28
recommendation. 29
(5) A decision under subsection (3) must-- 30
(a) be made in accordance with this Law and the Rules; and 31
Note. For example, see section 122. 32
(b) be attached to the coverage revocation recommendation; and 33
(c) contain the information required by the Rules. 34
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120 NCC decision on application where no application for a coverage 1
revocation recommendation 2
(1) This section applies if-- 3
(a) an application is made under section 118; and 4
(b) no application for a coverage revocation determination in respect 5
of the covered pipeline (by means of which the light regulation 6
services the subject of the application under section 118) are 7
provided is made before the NCC makes its decision in respect of 8
the application under section 118. 9
(2) Subject to this section, on receiving an application under section 118 the 10
NCC must deal with it in accordance with the Rules. 11
(3) The NCC must decide whether to revoke a light regulation 12
determination within-- 13
(a) 4 months after receiving an application under section 118; or 14
(b) if the Rules specify a later period, that period. 15
(4) A decision under this section must-- 16
(a) be made in accordance with this Law and the Rules; and 17
Note. For example, see section 122. 18
(b) contain the information required by the Rules; and 19
(c) be given to the persons specified by the Rules; and 20
(d) be made publicly available in accordance with the Rules. 21
121 Operation and effect of decision of NCC under this Division 22
(1) Subject to section 124, on the making of a decision under section 119(2) 23
or 120 revoking a light regulation determination, the service provider 24
must comply with section 132. 25
(2) However, the decision under section 119(2) or 120 revoking a light 26
regulation determination does not take effect until an access 27
arrangement that applies to the pipeline services provided by that 28
service provider is approved or made under a full access arrangement 29
decision. 30
(3) The effect of a decision under section 119(2) or 120 revoking a light 31
regulation determination is that the pipeline services to which the light 32
regulation determination applied cease to be light regulation services. 33
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Division 3 Principles governing light regulation 1
determinations 2
122 Principles governing the making or revoking of light regulation 3
determinations 4
(1) In deciding whether to make a light regulation determination under 5
Division 1 or to revoke a light regulation determination under 6
Division 2, the NCC must consider-- 7
(a) the likely effectiveness of the forms of regulation provided for 8
under this Law and the Rules to regulate the provision of the 9
pipeline services (the subject of the application) to promote 10
access to pipeline services; and 11
(b) the effect of the forms of regulation provided for under this Law 12
and the Rules on-- 13
(i) the likely costs that may be incurred by an efficient service 14
provider; and 15
(ii) the likely costs that may be incurred by efficient users and 16
efficient prospective users; and 17
(iii) the likely costs of end users. 18
Note. The forms of regulation provided for under this Law and the Rules to 19
regulate the provision of the pipeline services by means of a covered pipeline 20
are-- 21
(a) making a light regulation determination so that those services become 22
light regulation services; 23
(b) not making a light regulation determination so that those services are 24
regulated under a full access arrangement decision that approves or 25
makes the applicable access arrangement that applies to those 26
services. 27
(2) In doing so, the NCC-- 28
(a) must have regard to the national gas objective; and 29
(b) must have regard to the form of regulation factors; and 30
(c) may have regard to any other matters it considers relevant. 31
Division 4 Revocation if coverage determination not made 32
123 Light regulation determination revoked if coverage determination not 33
made 34
(1) This section applies if-- 35
(a) a light regulation determination has been made in respect of 36
pipeline services; but 37
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(b) the pipeline by means of which those services will be provided 1
does not become a covered pipeline because the relevant 2
Minister, contrary to a coverage recommendation recommending 3
coverage, makes a decision not to make a coverage 4
determination. 5
(2) The light regulation determination is, by force of this section, revoked 6
on the same day as the relevant Minister's decision not to make a 7
coverage determination takes effect. 8
Division 5 Effect of pipeline ceasing to be covered pipeline 9
124 Light regulation services cease to be such services on cessation of 10
coverage of pipeline 11
If a pipeline by means of which light regulation services are provided 12
ceases to be a covered pipeline because of a coverage revocation 13
determination-- 14
(a) the light regulation determination applying to the light regulation 15
services provided by means of that pipeline is, by force of this 16
section, revoked on the same day the coverage revocation 17
determination takes effect; and 18
(b) to avoid doubt, the light regulation services to which that 19
determination applied cease to be light regulation services on the 20
same day. 21
Division 6 AER reviews into designated pipelines 22
125 AER reviews 23
(1) The MCE may request the AER to conduct a review into, and report to 24
it as to, whether a pipeline should continue to be a designated pipeline. 25
(2) A service provider that provides pipeline services by means of a 26
designated pipeline may request the AER to conduct a review into, and 27
report to the MCE as to, whether that pipeline should continue to be a 28
designated pipeline. 29
(3) A request under subsection (1) or (2) must be in writing. 30
(4) On receiving a request under this section, the AER must conduct a 31
review as to whether the pipeline the subject of the request should 32
continue to be a designated pipeline. 33
(5) In conducting a review under this section, the AER must-- 34
(a) have regard to-- 35
(i) the national gas objective; and 36
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(ii) whether there has been a material change in competition in 1
a market served by the designated pipeline; and 2
(b) consult, in accordance with the Rules, with the public. 3
(6) On the completion of a review under this section, the AER must prepare 4
a report and-- 5
(a) give the report to the MCE; and 6
(b) publish the report on its website. 7
(7) The AER must also give a copy of the report to the service provider that 8
has requested the review. 9
Part 3 Coverage of pipelines the subject of tender 10
process 11
126 Tender approval pipelines deemed to be covered pipelines 12
(1) A pipeline to which a tender approval decision relates is deemed to be 13
a covered pipeline on and from the date the tender approval decision 14
becomes irrevocable by operation of the Rules. 15
(2) The pipeline ceases to be a covered pipeline-- 16
(a) if there is an applicable access arrangement that applies to the 17
pipeline services provided, or that are to be provided by means of 18
that pipeline--when that arrangement expires; or 19
(b) when a coverage revocation determination made in respect of that 20
pipeline takes effect. 21
Note. Under the Rules, the NCC will-- 22
(a) classify the pipeline to be constructed and operated in accordance with 23
an approved tender process as a cross boundary transmission pipeline, 24
cross boundary distribution pipeline, transmission pipeline or distribution 25
pipeline; and 26
(b) determine the relevant Minister for the purposes of that pipeline. 27
Part 4 Coverage following approval of voluntary 28
access arrangement 29
127 Certain pipelines become covered pipelines on approval of voluntary 30
access arrangement 31
(1) This section applies if-- 32
(a) a service provider voluntarily submits to the AER for approval by 33
the AER, under the Rules, a full access arrangement that will 34
apply to the pipeline services provided, or that are to be provided, 35
by means of a pipeline; and 36
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(b) that pipeline is not a covered pipeline. 1
(2) The pipeline is deemed to be a covered pipeline on the day the 2
voluntarily submitted full access arrangement takes effect as an 3
applicable access arrangement. 4
(3) The pipeline ceases to be a covered pipeline-- 5
(a) when the applicable access arrangement that applies to the 6
pipeline services provided, or that are to be provided, expires; or 7
(b) when a coverage revocation determination is made in respect of 8
that pipeline takes effect. 9
Note. Under the Rules, the NCC will-- 10
(a) classify the pipeline (by means of which the pipeline services to which 11
the arrangement relates are provided) as a cross boundary transmission 12
pipeline, cross boundary distribution pipeline, transmission pipeline or 13
distribution pipeline; and 14
(b) determine the relevant Minister for the purposes of that pipeline. 15
Part 5 Reclassification of pipelines 16
128 Service provider may apply for reclassification of pipeline 17
(1) A service provider may, in respect of a pipeline by means of which the 18
service provider provides pipeline services, apply to the NCC for the 19
pipeline to be reclassified as-- 20
(a) if the pipeline is a transmission pipeline--a distribution pipeline; 21
or 22
(b) if the pipeline is a distribution pipeline--a transmission pipeline. 23
(2) The application must be accompanied by the fee prescribed by the 24
Regulations (if any). 25
129 Reclassification decision 26
(1) The NCC must make a decision (a reclassification decision) within-- 27
(a) 4 months after receiving an application under section 128; or 28
(b) if the Rules specify a later period, that period. 29
(2) A reclassification decision must-- 30
(a) be made in accordance with this Law and the Rules; and 31
(b) contain the information required by the Rules; and 32
(c) be given to the persons specified by the Rules; and 33
(d) be made publicly available in accordance with the Rules. 34
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(3) In making a reclassification decision, the NCC must have regard to-- 1
(a) the national gas objective; and 2
(b) the pipeline classification criterion. 3
(4) The NCC must also as part of the reclassification decision-- 4
(a) if it reclassifies the pipeline the subject of the application as a 5
transmission pipeline--determine whether the transmission 6
pipeline is also a cross boundary transmission pipeline; 7
(b) if it reclassifies the pipeline the subject of the application as a 8
distribution pipeline--determine whether the distribution 9
pipeline is also a cross boundary distribution pipeline. 10
(5) If, under subsection (4), the NCC determines that a pipeline reclassified 11
as a distribution pipeline is also a cross boundary distribution pipeline, 12
the NCC must determine the participating jurisdiction with which the 13
cross boundary distribution pipeline is most closely connected. In doing 14
so, the NCC must have regard to the jurisdictional determination 15
criteria. 16
130 Effect of reclassification decision 17
On the making of a reclassification decision-- 18
(a) the pipeline is, in accordance with the decision, reclassified as 19
either a transmission pipeline or distribution pipeline; and 20
(b) the relevant Minister in respect of the pipeline is the relevant 21
Minister as provided under this Law. 22
Chapter 4 General requirements for provision of 23
covered pipeline services 24
Part 1 General duties for provision of pipeline 25
services by covered pipelines 26
131 Service provider must be legal entity of a specified kind to provide 27
pipeline services by covered pipeline 28
A covered pipeline service provider must not provide a pipeline service 29
by means of a covered pipeline unless the service provider is-- 30
(a) a legal entity registered under the Corporations Act 2001 of the 31
Commonwealth; or 32
(b) a foreign company; or 33
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(c) a corporation established by or under a law of this jurisdiction or 1
another participating jurisdiction, whether or not that corporation 2
has been established for a public purpose; or 3
(d) the Crown in right of this jurisdiction or another participating 4
jurisdiction; or 5
(e) a person referred to in paragraph (a) to (d) and that person 6
provides a pipeline service by means of a covered pipeline 7
together with another person referred to in paragraph (a) to (d). 8
132 Submission of full access arrangement or revisions to applicable full 9
access arrangements 10
(1) A covered pipeline service provider must submit to the AER, for 11
approval by the AER under the Rules, a full access arrangement or 12
revisions to an applicable access arrangement that is a full access 13
arrangement, in respect of the pipeline services the provider provides or 14
intends to provide-- 15
(a) in the circumstances specified by the Rules; and 16
(b) within the period of time specified by the Rules. 17
(2) Subsection (1) does not apply-- 18
(a) if the pipeline services that are, or are intended to be, provided by 19
the service provider light regulation services; or 20
(b) to the extent the Rules provide subsection (1) is not to apply. 21
Note. A service provider who provides or intends to provide pipeline services by 22
means of an international pipeline to which a price regulation applies must 23
submit a limited access arrangement to the AER for approval: see section 168. 24
133 Preventing or hindering access 25
(1) A person who is-- 26
(a) a covered pipeline service provider; or 27
(b) a person who-- 28
(i) is a party to an agreement with a service provider relating 29
to a pipeline service provided by means of a covered 30
pipeline; or 31
(ii) as a result of an access determination is entitled to a 32
pipeline service provided by means of a covered pipeline; 33
or 34
(c) an associate of a service provider or a person referred to in 35
paragraph (b), 36
must not engage in conduct for the purpose of preventing or hindering 37
the access of another person to a pipeline service provided by means of 38
the covered pipeline. 39
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(2) For the purposes of subsection (1), a person is deemed to engage in 1
conduct for a particular purpose if-- 2
(a) the conduct is or was engaged in for that purpose or for a purpose 3
that includes, or included, that purpose; and 4
(b) that purpose is or was a substantial purpose. 5
(3) A person may be taken to have engaged in conduct for the purpose 6
referred to in subsection (1) even though, after all the evidence has been 7
considered, the existence of that purpose is ascertainable only by 8
inference from the conduct of the person or of any other person or from 9
other relevant circumstances. 10
(4) Subsection (3) does not limit the manner in which the purpose of a 11
person may be established for the purpose of subsection (1). 12
(5) In this section-- 13
(a) a reference to engaging in conduct is a reference to doing or 14
refusing to do any act, including refusing to supply a pipeline 15
service or, without reasonable grounds, limiting or disrupting a 16
pipeline service, or making, or giving effect to, a provision of, a 17
contract or arrangement, arriving at, or giving effect to, a 18
provision of, an understanding or requiring the giving of, or 19
giving, a covenant; 20
(b) a reference to refusing to do an act includes a reference to-- 21
(i) refraining (otherwise than inadvertently) from doing that 22
act; or 23
(ii) making it known that that act will not be done. 24
(6) Subsection (1) does not apply to conduct engaged in in accordance with 25
an agreement, if the agreement was in force on 30 March 1995. 26
Example. An example of conduct which may be prohibited if the requisite 27
purpose is established is refusing to supply, or limiting or disrupting the supply 28
of, a pipeline service to a user or prospective user for technical or safety 29
reasons without reasonable grounds. 30
134 Supply and haulage of natural gas 31
(1) If a producer states terms and conditions (whether or not including the 32
price) (the first terms) on which the producer offers to supply natural 33
gas through a covered pipeline that is in operation at the time of the offer 34
to a person at a place other than the exit flange of the producer's 35
processing plant, the producer must, on request by the person, state 36
terms and conditions (including the price, if the price was included in 37
the first terms) (the second terms) on which the producer will supply 38
natural gas to the person at the exit flange. 39
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(2) If there is a difference in the price stated in the first terms and the second 1
terms, the producer must include in the second terms a statement of the 2
reasons for the difference. 3
(3) If the producer offers to supply natural gas to a person at a place other 4
than the exit flange of the producer's processing plant, the producer 5
must, on request, offer to supply the gas at the exit flange on the terms 6
and conditions (including price) stated in accordance with this section. 7
135 Covered pipeline service provider must comply with queuing 8
requirements 9
A covered pipeline service provider must comply with the queuing 10
requirements of an applicable access arrangement. 11
136 Covered pipeline service provider providing light regulation services 12
must not price discriminate 13
(1) A covered pipeline service provider must not engage in price 14
discrimination when providing light regulation services. 15
(2) Subsection (1) does not apply if the covered pipeline service provider 16
engages in price discrimination that is conducive to efficient service 17
provision. 18
Part 2 Structural and operational separation 19
requirements (ring fencing) 20
Division 1 Interpretation 21
137 Definitions 22
In this Part-- 23
additional ring fencing requirement has the meaning given by section 24
143(1); 25
compliance date means the date that is 6 months after the date a pipeline 26
becomes a covered pipeline; 27
marketing staff has the meaning given by section 138; 28
related business means the business of producing, purchasing or selling 29
natural gas or processable gas, but does not include purchasing or 30
selling of natural gas or processable gas to the extent necessary-- 31
(a) for the safe and reliable operation of a covered pipeline; or 32
(b) to enable a service provider to provide balancing services in 33
connection with a covered pipeline. 34
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138 Meaning of marketing staff 1
(1) A person is marketing staff of-- 2
(a) a covered pipeline service provider, if the person-- 3
(i) is an officer, employee, consultant or independent 4
contractor or agent of the covered pipeline service 5
provider; and 6
(ii) is directly involved in the sale, marketing or advertising of 7
pipeline services (whether or not the person is also 8
involved in other activities); 9
(b) an associate of a covered pipeline service provider, if the 10
person-- 11
(i) is an officer, employee, consultant or independent 12
contractor or agent of the associate; and 13
(ii) is directly involved in the sale, marketing or advertising of 14
pipeline services (whether or not the person is also 15
involved in other activities). 16
(2) A person is not marketing staff of a covered pipeline service provider, 17
or an associate of a covered pipeline service provider, if-- 18
(a) the person's function or role (as an officer, employee, consultant 19
or independent contractor or agent of a covered pipeline service 20
provider, or an associate of a covered pipeline service provider) 21
is only to provide technical, administrative, legal and accounting 22
services to that provider or associate; or 23
(b) the sale, marketing or advertising of pipeline services is only an 24
incidental part of the person's function or role (as an officer, 25
employee, consultant or independent contractor or agent of a 26
covered pipeline service provider, or an associate of a covered 27
pipeline service provider). 28
Example. A person in the position of general manager of marketing of a 29
covered pipeline service provider or an associate of a covered pipeline service 30
provider would be marketing staff whereas a person in the position of chief 31
executive officer, or chief financial officer, of a covered pipeline service provider 32
or an associate of a covered pipeline service provider would not be marketing 33
staff. 34
Division 2 Minimum ring fencing requirements 35
139 Carrying on of related businesses prohibited 36
On and after the compliance date, a covered pipeline service provider 37
must not carry on a related business. 38
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140 Marketing staff and the taking part in related businesses 1
(1) On and after the compliance date, a covered pipeline service provider 2
must ensure that none of its marketing staff are officers, employees, 3
consultants, independent contractors or agents of an associate of the 4
covered pipeline service provider that takes part in a related business. 5
(2) On and after the compliance date, a covered pipeline service provider 6
must ensure that none of its officers, employees, consultants, 7
independent contractors or agents are marketing staff of an associate of 8
the covered pipeline service provider that takes part in a related 9
business. 10
141 Accounts that must be prepared, maintained and kept 11
On and after the compliance date, a covered pipeline service provider 12
must prepare, maintain and keep-- 13
(a) separate accounts in respect of pipeline services provided by 14
means of every covered pipeline owned, operated or controlled 15
by the covered pipeline service provider; and 16
(b) a consolidated set of accounts in respect of the whole of the 17
business of the covered pipeline service provider. 18
Division 3 Additional ring fencing requirements 19
142 Division does not limit operation of Division 2 20
This Division does not limit Division 2. 21
143 AER ring fencing determinations 22
(1) Subject to this Division and subject to and in accordance with the Rules, 23
the AER may make a determination requiring a covered pipeline service 24
provider or associate of a covered pipeline service provider named in 25
the determination to do, or refrain from doing, a thing specified in the 26
determination (an additional ring fencing requirement). 27
(2) In specifying an additional ring fencing requirement the AER must have 28
regard to the following principles: 29
(a) in the case where 1 part of the business of a covered pipeline 30
service provider (business unit A) is providing pipeline services 31
to another part of the business of the covered pipeline service 32
provider (business unit B), the covered pipeline service provider 33
must ensure that business unit A provides the pipeline services to 34
business unit B as if business unit B were a separate unrelated 35
entity; 36
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(b) in the case where a covered pipeline service provider is providing 1
pipeline services to an associate of the service provider, the 2
covered pipeline service provider must ensure that those services 3
are provided as if the associate of the covered pipeline service 4
provider were a separate unrelated entity; 5
(c) users and prospective users should have sufficient information in 6
order to understand whether a covered pipeline service provider 7
is complying with paragraph (a) or (b). 8
(3) The AER must-- 9
(a) notify, in writing, the covered pipeline service provider or 10
associate named in the AER ring fencing determination of the 11
making of that determination; and 12
(b) give the covered pipeline service provider or associate a copy of 13
the AER ring fencing determination. 14
(4) An AER ring fencing determination must specify the date on and after 15
which the covered pipeline service provider or associate of a covered 16
pipeline service provider must do, or refrain from doing, a thing 17
specified in the determination (a notified compliance date). 18
(5) A notified compliance date must not be a date that is earlier than 19
10 business days after the date the covered pipeline service provider or 20
associate of a covered pipeline service provider is given a copy of the 21
AER ring fencing determination. 22
(6) A covered pipeline service provider or associate of a covered pipeline 23
service provider must comply with every additional ring fencing 24
requirement specified in an AER ring fencing determination on and 25
after the notified compliance date. 26
144 AER to have regard to likely compliance costs of additional ring fencing 27
requirements 28
In making an AER ring fencing determination the AER must have 29
regard to the likely costs that may be incurred by, as the case requires-- 30
(a) an efficient covered pipeline service provider; or 31
(b) an efficient associate of a covered pipeline service provider, 32
in complying with an additional ring fencing requirement specified in 33
the determination. 34
145 Types of ring fencing requirements that may be specified in an AER ring 35
fencing determination 36
Without limiting what may be specified as an additional ring fencing 37
requirement, the AER, in an AER ring fencing determination, may 38
require a covered pipeline service provider to-- 39
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(a) ensure that its business and business activities are conducted, 1
structured and arranged in the particular manner specified; 2
Example 1. An AER ring fencing determination may require the covered 3
pipeline service provider to ensure that persons employed or engaged 4
by the covered pipeline service provider in relation to the provision of 5
pipeline services are not also associates, or employed by associates, of 6
the covered pipeline service provider that take part in a related business 7
and how this must be effected. 8
Example 2. An AER ring fencing determination may require the covered 9
pipeline service provider to put in place electronic, physical and 10
procedural security measures in respect of the offices and computer 11
systems of the covered pipeline service provider, and of the offices and 12
computer systems of its associates, so that certain specified employees 13
or persons engaged by the covered pipeline service provider do not have 14
access to certain specified information. 15
(b) in a specified manner, disclose, to the AER and to the public, 16
specified information in a specified manner about its business 17
operations, structure and arrangements, and its business 18
activities. 19
Division 4 AER ring fencing exemptions 20
146 Exemptions from minimum ring fencing requirements 21
(1) A covered pipeline service provider may, in accordance with the Rules, 22
apply to the AER for an exemption from-- 23
(a) the requirement under section 139; or 24
(b) a requirement under section 140; or 25
(c) the requirement under section 141. 26
(2) On receiving an application under subsection (1), the AER, subject to 27
and in accordance with the Rules, may exempt a covered pipeline 28
service provider from-- 29
(a) the requirement under section 139; or 30
(b) a requirement under section 140; or 31
(c) the requirement under section 141. 32
Division 5 Associate contracts 33
147 Service provider must not enter into or give effect to associate contracts 34
that have anti-competitive effect 35
A covered pipeline service provider must not-- 36
(a) enter into an associate contract that has; or 37
(b) vary an associate contract so that contract, as varied, has; or 38
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(c) give effect to a provision of an associate contract that has, 1
the purpose, or would have or be likely to have the effect, of 2
substantially lessening competition in a market for natural gas services 3
unless-- 4
(d) that associate contract is an approved associate contract; or 5
(e) that provision is contained in an approved associate contract. 6
148 Service provider must not enter into or give effect to associate contracts 7
inconsistent with competitive parity rule 8
(1) A covered pipeline service provider must not-- 9
(a) enter into an associate contract that is; or 10
(b) vary an associate contract so that contract, as varied, is; or 11
(c) give effect to a provision of an associate contract that is, 12
inconsistent with the competitive parity rule unless-- 13
(d) that associate contract is an approved associated contract; or 14
(e) that provision is contained in an approved associate contract. 15
(2) For the purposes of subsection (1), and any Rules made for the purposes 16
of that subsection, the competitive parity rule is the rule that a covered 17
pipeline service provider must ensure that any pipeline services that the 18
covered pipeline service provider provides to an associate of the 19
covered pipeline service provider are provided to that associate as if that 20
associate were a separate unrelated entity. 21
Chapter 5 Greenfields pipeline incentives 22
Part 1 Interpretation 23
149 Definitions 24
In this Chapter-- 25
excluded infrastructure, in relation to a pipeline, means tanks, 26
reservoirs, machinery, equipment or other infrastructure that forms part 27
of the pipeline but is classified by the Rules as excluded infrastructure 28
for the purposes of this Law; 29
greenfields pipeline project means a project for the construction of-- 30
(a) a pipeline that is to be structurally separate from any existing 31
pipeline (whether or not it is to traverse a route different from the 32
route of an existing pipeline); or 33
(b) a major extension to an existing pipeline that is not a covered 34
pipeline; or 35
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(c) a major extension to a covered pipeline by means of which light 1
regulation services are provided if that extension is exempted by 2
the AER under section 19. 3
150 International pipeline to be a transmission pipeline for purposes of 4
Chapter 5
An international pipeline is, for the purposes of this Chapter, a 6
transmission pipeline. 7
Part 2 15-year no-coverage determinations 8
151 Application for 15-year no-coverage determination for proposed pipeline 9
(1) If a greenfields pipeline project is proposed, or has commenced, the 10
service provider may, before the pipeline is commissioned, apply for a 11
determination (a 15-year no-coverage determination) exempting the 12
pipeline from being a covered pipeline. 13
(2) If a price regulation exemption has been granted for an international 14
pipeline, an application for a 15-year no-coverage determination for the 15
pipeline may be made by the service provider-- 16
(a) before the pipeline is commissioned; or 17
(b) after the pipeline is commissioned but before the term of the price 18
regulation exemption comes to an end. 19
(3) An application for a 15-year no-coverage determination-- 20
(a) is to be made to the NCC; and 21
(b) must include a description of the pipeline that meets the 22
requirements specified by the Rules; and 23
(c) must contain the information required by the Rules; and 24
(d) need not describe, or include details of, excluded infrastructure; 25
and 26
(e) must be accompanied by the fee prescribed by the Regulations (if 27
any). 28
(4) In this section-- 29
service provider includes a person that intends to be a service provider. 30
152 Application to be dealt with in accordance with the Rules 31
On receiving an application under section 151, the NCC must deal with 32
it in accordance with the Rules. 33
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153 No-coverage recommendation 1
(1) The NCC must make a recommendation recommending to the relevant 2
Minister that the pipeline the subject of the application-- 3
(a) be exempted from being a covered pipeline for a period of 4
15 years; or 5
(b) not be exempted from being a covered pipeline for a period of 6
15 years. 7
(2) A recommendation under this section must-- 8
(a) be made in accordance with this Law and the Rules; and 9
(b) be made within the time specified by the Rules; and 10
(c) contain the information required by the Rules; and 11
(d) be given to the persons specified by the Rules; and 12
(e) be made publicly available in accordance with the Rules. 13
(3) A recommendation under this section may recommend an outcome 14
different to the outcome sought in the application under section 151. 15
Example. An applicant may apply for a 15-year no-coverage determination in 16
relation to the whole pipeline. The NCC may recommend that only a part of the 17
pipeline the subject of the application be subject to a 15-year no-coverage 18
determination. 19
(4) A recommendation under this section must be delivered to the relevant 20
Minister without delay. 21
154 Principles governing the making of a no-coverage recommendation 22
(1) In making a no-coverage recommendation, the NCC-- 23
(a) must give effect to the pipeline coverage criteria; and 24
(b) in deciding whether or not the pipeline coverage criteria are 25
satisfied must have regard to the national gas objective. 26
(2) The NCC gives effect to the pipeline coverage criteria as follows: 27
(a) if the NCC is satisfied that all the pipeline coverage criteria are 28
satisfied in relation to the pipeline the recommendation must be 29
against making a 15-year no-coverage determination; 30
(b) if the NCC is not satisfied that all the pipeline coverage criteria 31
are satisfied in relation to the pipeline the recommendation must 32
be in favour of making a 15-year no coverage determination. 33
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155 Initial classification decision to be made as part of recommendation 1
(1) If the pipeline the subject of an application under section 151 is not an 2
international pipeline, the NCC must, as part of a no-coverage 3
recommendation, classify the pipeline as a transmission pipeline or a 4
distribution pipeline (an initial classification decision). In doing so, the 5
NCC must apply the pipeline classification criterion. 6
(2) The NCC must as part of an initial classification decision-- 7
(a) if it classifies the pipeline the subject of the application as a 8
transmission pipeline--determine whether the transmission 9
pipeline is also a cross boundary transmission pipeline; or 10
(b) if it classifies the pipeline the subject of the application as a 11
distribution pipeline--determine whether the distribution 12
pipeline is also a cross boundary distribution pipeline. 13
(3) The NCC must also determine, as part of an initial classification 14
decision, the participating jurisdiction with which the pipeline the 15
subject of the application under section 151 is most closely connected if 16
the NCC determines the pipeline is also a cross boundary distribution 17
pipeline. In doing so, the NCC must have regard to the jurisdictional 18
determination criteria. 19
156 Relevant Minister's determination on application 20
(1) On receiving a no-coverage recommendation the relevant Minister must 21
decide whether or not to make a 15-year no-coverage determination in 22
respect of the pipeline to which the recommendation relates. 23
(2) The relevant Minister must use his or her best endeavours to make the 24
decision within 30 business days after receiving the coverage 25
recommendation. 26
(3) If the relevant Minister is unable to make the decision within the period 27
specified under subsection (2), he or she must make the decision as soon 28
as reasonably practicable after the end of the specified period. 29
(4) The relevant Minister, for the purpose of making the decision, may 30
request submissions or comments in relation to an application under 31
section 151. 32
(5) A 15-year no-coverage determination or a decision not to make a 33
15-year no-coverage determination must-- 34
(a) be made in accordance with this Law and the Rules; and 35
(b) contain the information required by the Rules; and 36
(c) be given to the persons specified by the Rules; and 37
(d) be made publicly available in accordance with the Rules. 38
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(6) A 15-year no-coverage determination may have an outcome different to 1
the outcome-- 2
(a) sought in the application under section 151; or 3
(b) of the no-coverage recommendation. 4
Example. An applicant may apply for a 15-year no-coverage determination in 5
relation to the whole pipeline. The NCC may recommend that only a part of the 6
pipeline the subject of the application be subject to a 15-year no-coverage 7
determination. The relevant Minister may make a 15-year no-coverage 8
determination that applies to different parts of the pipeline to those 9
recommended by the NCC be subject to the determination. 10
157 Principles governing the making of a 15-year no-coverage determination 11
or decision not to do so 12
(1) In deciding whether to make a 15-year no-coverage determination 13
under this Part, the relevant Minister-- 14
(a) must give effect to the pipeline coverage criteria; and 15
(b) in deciding whether or not the pipeline coverage criteria are 16
satisfied in relation to the pipeline-- 17
(i) must have regard to the national gas objective; and 18
(ii) must have regard to the no-coverage recommendation; and 19
(iii) must take into account any submissions or comments he or 20
she receives on a request under section 156(4); and 21
(iv) may take into account any relevant submissions and 22
comments made to the NCC by the public under the Rules 23
in relation to the application. 24
(2) The relevant Minister gives effect to the pipeline coverage criteria as 25
follows: 26
(a) if the Minister is satisfied that all the pipeline coverage criteria 27
are satisfied in relation to the pipeline the Minister must not make 28
a 15-year no-coverage determination; 29
(b) if the Minister is not satisfied that all the pipeline coverage 30
criteria are satisfied in relation to the pipeline the Minister must 31
make a 15-year no-coverage determination. 32
158 Effect of 15-year no-coverage determination 33
(1) A 15-year no-coverage determination-- 34
(a) takes effect on and from the date specified in the determination; 35
and 36
(b) continues in operation for a period of 15 years from the 37
commissioning of the pipeline. 38
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(2) An application for coverage of a pipeline to which a 15-year 1
no-coverage determination applies can be made before the end of the 2
period for which the determination remains in operation only if the 3
coverage sought in the application is to commence from, or after, the 4
end of that period. 5
159 Consequences of Minister deciding against making 15-year no-coverage 6
determination for international pipeline 7
(1) If-- 8
(a) the Commonwealth Minister decides against making a 15-year 9
no-coverage determination for an international pipeline; and 10
(b) the applicant asks the Commonwealth Minister to treat the 11
application as an application for a price regulation exemption, 12
the Commonwealth Minister may treat the application as an application 13
for a price regulation exemption under Chapter 5 Part 3. 14
(2) If the Commonwealth Minister decides to treat an application for a 15
15-year no-coverage determination as an application for a price 16
regulation exemption, the Commonwealth Minister may-- 17
(a) refer the application to the NCC for a recommendation under 18
Chapter 5 Part 3; or 19
(b) proceed to determine the application without a recommendation 20
under Chapter 5 Part 3. 21
Part 3 Price regulation exemptions 22
Division 1 Application for price regulation exemption 23
160 Application for price regulation exemption 24
(1) If a greenfields pipeline project for construction of an international 25
pipeline is proposed, or has commenced, the service provider may, 26
before the pipeline is commissioned, apply for a price regulation 27
exemption for the pipeline. 28
(2) An application for a price regulation exemption-- 29
(a) is to be made to the NCC; and 30
(b) must include a description of the pipeline that meets the 31
requirements specified by the Rules; and 32
(c) must contain the information required by the Rules; and 33
(d) need not describe, or include details of, excluded infrastructure; 34
and 35
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(e) must be accompanied by the fee prescribed by the Regulations (if 1
any). 2
(3) In this section-- 3
service provider includes a person that intends to be a service provider. 4
Division 2 Recommendations by NCC 5
161 Application to be dealt with in accordance with the Rules 6
On receiving an application under section 160, the NCC must deal with 7
it in accordance with the Rules. 8
162 NCC's recommendation 9
(1) The NCC must make a recommendation to the Commonwealth Minister 10
as to whether the Minister should grant a price regulation exemption for 11
the pipeline the subject of the application. 12
(2) A recommendation under this section must-- 13
(a) be made in accordance with this Law and the Rules; and 14
(b) be made within the time specified by the Rules; and 15
(c) contain the information required by the Rules; and 16
(d) be given to the persons specified by the Rules; and 17
(e) be made publicly available in accordance with the Rules. 18
(3) A recommendation under this section must be delivered to the 19
Commonwealth Minister without delay. 20
163 General principle governing NCC's recommendation 21
(1) In making its recommendation on an application for a price regulation 22
exemption, the NCC must weigh the benefits to the public of granting 23
the exemption against the detriments to the public. 24
(2) In doing so, the NCC-- 25
(a) must have regard to the national gas objective with particular 26
reference to-- 27
(i) the implications of the exemption for relevant markets 28
(including the effect on market power); and 29
(ii) other possible effects on the public interest; and 30
(b) may have regard to any other relevant matter. 31
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Division 3 Making and effect of price regulation exemption 1
164 Making of price regulation exemption 2
(1) On receiving the NCC's recommendation under section 162, the 3
Commonwealth Minister must decide whether to grant a price 4
regulation exemption. 5
(2) The Commonwealth Minister must use his or her best endeavours to 6
make the decision within 10 business days after receiving the NCC's 7
recommendation. 8
(3) If the Commonwealth Minister is unable to make the decision within the 9
period specified under subsection (2), he or she must make the decision 10
as soon as reasonably practicable after the end of the specified period. 11
(4) A decision under this section must-- 12
(a) be made in accordance with this Law and the Rules; and 13
(b) contain the information required by the Rules; and 14
(c) be given to the persons specified by the Rules; and 15
(d) be made publicly available in accordance with the Rules. 16
165 Principles governing the making of a price regulation exemption 17
(1) In deciding whether to make a decision to grant a price regulation 18
exemption, the Commonwealth Minister must weigh the benefits to the 19
public of granting the exemption against the detriments to the public. 20
(2) In doing so, the Commonwealth Minister-- 21
(a) must have regard to the national gas objective with particular 22
reference to-- 23
(i) the implications of the exemption for relevant markets 24
(including the effect on market power); and 25
(ii) other possible effects of the exemption on the public 26
interest; and 27
(b) must have regard to the NCC's recommendation; and 28
(c) may take into account any relevant submissions and comments 29
made to the NCC by the public under the Rules in relation to the 30
application; and 31
(d) may have regard to any other relevant matter. 32
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166 Conditions applying to a price regulation exemption 1
A price regulation exemption granted under this Part is subject to the 2
following conditions: 3
(a) the service provider must publish on its website prices for the 4
provision of pipeline services by means of the international 5
pipeline; and 6
(b) the service provider's limited access arrangement and the register 7
of spare capacity are to be accessible on the service provider's 8
website; and 9
(c) the service provider-- 10
(i) must, as and when required by the AER or the 11
Commonwealth Minister, provide information requested 12
by the AER or the Commonwealth Minister (in a manner 13
and form determined or approved by the AER or the 14
Commonwealth Minister) on access negotiations and the 15
result of access negotiations; and 16
(ii) must report annually to the AER and the Commonwealth 17
Minister (in a manner and form approved by the AER or 18
the Commonwealth Minister) on access negotiations and 19
the result of access negotiations. 20
Note. See also sections 168 and 169(3). 21
167 Effect of price regulation exemption 22
(1) If a price regulation exemption is granted, then for a period of 15 years 23
from the commissioning of the pipeline, the services provided by means 24
of the pipeline are not subject to price or revenue regulation under this 25
Law or the Rules. 26
(2) A price regulation exemption is, however, ineffective unless a limited 27
access arrangement, approved by the AER, is in force in relation to the 28
relevant pipeline. 29
Note. See also section 168. 30
(3) If, while a price regulation exemption remains in force, the 31
Commonwealth Minister makes a 15-year no-coverage determination 32
for the pipeline, the 15-year no-coverage determination supersedes the 33
price regulation exemption (which is then terminated) and remains in 34
force for the balance of the period for which the exemption was granted. 35
(4) An application for coverage of a pipeline to which a price regulation 36
exemption applies can only be made before the end of the period of 37
exemption if the coverage sought in the application is to commence 38
from, or after, the end of that period. 39
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Division 4 Limited access arrangements 1
168 Limited access arrangements for pipeline services provided by 2
international pipeline to which a price regulation exemption applies 3
(1) A service provider must, within 60 business days after the grant of a 4
price regulation exemption, submit a limited access arrangement to the 5
AER for approval by the AER under the Rules. 6
(2) A limited access arrangement must-- 7
(a) be submitted in accordance with the Rules; and 8
(b) contain the information required by the Rules. 9
(3) A service provider must submit to the AER, for approval by the AER 10
under the Rules, revisions to an applicable access arrangement that is a 11
limited access arrangement and that applies to the pipeline service to 12
which that arrangement applies-- 13
(a) in accordance with the Rules; and 14
(b) within the period specified by the Rules. 15
Division 5 Other matters 16
169 Other obligations to which service provider is subject 17
(1) The service provider for a pipeline to which a price regulation 18
exemption applies is subject to the following provisions as if the 19
pipeline were a covered pipeline: 20
(a) Chapter 4 Part 1 (except sections 132 and 136); and 21
(b) Chapter 4 Part 2. 22
(2) The service provider for a pipeline to which a price regulation 23
exemption applies must comply with any Rules that-- 24
(a) relate to the facilitation of, and request for access to, pipeline 25
services provided by means of that pipeline; and 26
(b) apply to the service provider or a class of person of which the 27
service provider is a member. 28
(3) A service provider must ensure compliance with conditions to which the 29
price regulation exemption is subject. 30
Note. See also section 160. 31
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170 Service provider must not price discriminate in providing international 1
pipeline services 2
(1) A service provider must not, when providing pipeline services-- 3
(a) by means of an international pipeline to which a price regulation 4
exemption applies; and 5
(b) to which a limited access arrangement applies, 6
engage in price discrimination. 7
(2) Subsection (1) does not apply if the service provider engages in price 8
discrimination that is conducive to efficient service provision. 9
Part 4 Extended or modified application of greenfields 10
pipeline incentive 11
171 Requirement for conformity between pipeline description and pipeline 12
as constructed 13
(1) Subject to this Part-- 14
(a) a greenfields pipeline incentive applies to the pipeline as 15
described in the relevant pipeline description; and 16
(b) if the pipeline, as constructed, materially differs from the pipeline 17
as described in the relevant pipeline description, the incentive 18
does not attach to the pipeline and the service provider is not 19
entitled to its benefit. 20
(2) In determining whether a pipeline, as constructed, materially differs 21
from the relevant pipeline description, excluded infrastructure is not to 22
be taken into account. 23
(3) In this section-- 24
relevant pipeline description means a description of a pipeline required 25
to be included in an application under section 151 or 160. 26
172 Power of relevant Minister to amend pipeline description 27
(1) The relevant Minister may, on application by the service provider for a 28
pipeline for which a greenfields pipeline incentive has been granted, 29
amend the relevant pipeline description. 30
(2) An amendment cannot, however, be made under this section after the 31
pipeline has been commissioned. 32
(3) The relevant Minister-- 33
(a) may refer an application for amendment to a pipeline description 34
to the NCC for advice; and 35
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(b) if the amendment sought involves a substantial change to the 1
pipeline description as it currently exists must refer the 2
application to the NCC for advice. 3
(4) In giving its advice to the relevant Minister, the NCC must have regard 4
to the criteria that were relevant to the grant of the greenfields pipeline 5
incentive. 6
(5) In deciding whether to make the amendment sought, the relevant 7
Minister-- 8
(a) must have regard to the criteria that were relevant to the grant of 9
the greenfields pipeline incentive; and 10
(b) if the application has been referred to the NCC for advice must 11
consider the NCC's advice. 12
Part 5 Early termination of greenfields pipeline 13
incentive 14
173 Greenfields pipeline incentive may lapse 15
(1) A greenfields pipeline incentive lapses if the pipeline for which it was 16
granted is not commissioned within 3 years after the incentive was 17
granted. 18
(2) The Regulations may, in a particular case, extend the period of 3 years 19
referred to in subsection (1). 20
174 Revocation by consent 21
The relevant Minister may, at the request of the service provider, revoke 22
a greenfields pipeline incentive. 23
175 Revocation for misrepresentation 24
The relevant Minister may, on application by the AER, revoke a 25
greenfields pipeline incentive on the ground that-- 26
(a) the applicant misrepresented a material fact on the basis of which 27
the application was granted; or 28
(b) the applicant failed to disclose material information that the 29
applicant was required to disclose under this Chapter. 30
176 Revocation for breach of condition to which a price regulation 31
exemption is subject 32
The Commonwealth Minister, on application by the AER, may revoke 33
a price regulation exemption on the ground that the service provider has 34
breached a condition to which the price regulation exemption is subject. 35
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177 Exhaustive provision for termination of greenfields pipeline incentive 1
A greenfields pipeline incentive does not terminate, and cannot be 2
revoked, before the end of its term except as provided in this Part. 3
Chapter 6 Access disputes 4
Part 1 Interpretation and application 5
178 Definitions 6
In this Chapter-- 7
access dispute means a dispute between a user or prospective user and 8
a service provider about 1 or more aspects of access to a pipeline service 9
provided by means of a scheme pipeline; 10
access dispute pipeline means a scheme pipeline used or that could be 11
used to provide a pipeline service that is the subject of an access dispute; 12
dispute hearing means a hearing conducted by the dispute resolution 13
body for the purpose of making an access determination; 14
party, in relation to an access dispute, has the meaning given by section 15
183. 16
179 Chapter does not limit how disputes about access may be raised or dealt 17
with 18
This Chapter is not to be taken to limit how a dispute about access to a 19
pipeline service may be raised or dealt with. 20
180 No price or revenue regulation for access disputes relating to 21
international pipeline services 22
An access dispute notified under this Chapter in relation to a pipeline 23
service provided by means of an international pipeline to which a price 24
regulation exemption applies must not be resolved under this Chapter 25
on terms-- 26
(a) regulating the price at which a service is to be provided by the 27
service provider; or 28
(b) limiting the revenue to be derived by the service provider from 29
the provision of a service. 30
Part 2 Notification of access dispute 31
181 Notification of access dispute 32
(1) Subject to this section, if a prospective user or user is unable to agree 33
with a service provider about 1 or more aspects of access to a pipeline 34
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service provided or to be provided by means of a scheme pipeline, the 1
prospective user, user or service provider may notify the dispute 2
resolution body, in writing, that an access dispute exists. 3
Note. A dispute about access to a light regulation service may be notified under 4
this section because light regulation services are pipeline services provided by 5
means of a covered pipeline (which is a scheme pipeline). 6
(2) A notification must be accompanied by the fee prescribed by the 7
Regulations (if any). 8
(3) On receiving a notification under subsection (1), the dispute resolution 9
body must notify, in writing, of the access dispute-- 10
(a) the service provider, if a prospective user or user (as the case 11
requires) notified the dispute resolution body of the access 12
dispute under subsection (1); 13
(b) the prospective user or user (as the case requires), if the service 14
provider notified the dispute resolution body of the access dispute 15
under subsection (1). 16
182 Withdrawal of notification 17
(1) The person who notified the dispute resolution body of an access 18
dispute under section 181(1) may withdraw that notification at any time 19
before the dispute resolution body makes an access determination in 20
respect of that access dispute. 21
(2) The notification must be withdrawn by notice in writing. 22
(3) If the notification is withdrawn, it must be taken, for the purposes of this 23
Chapter, never to have been given. 24
183 Parties to an access dispute 25
The parties to an access dispute are-- 26
(a) the person notifying the dispute resolution body of an access 27
dispute under section 181(1); and 28
(b) a person notified by the dispute resolution body under section 29
181(3); and 30
(c) if the dispute resolution body is of the opinion that the resolution 31
of the access dispute may involve requiring another person to do 32
something--that other person; and 33
(d) any other person who applies in writing to be made a party and is 34
accepted by the dispute resolution body as having a sufficient 35
interest. 36
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Part 3 Access determinations 1
184 Determination of access dispute 2
(1) Unless the dispute resolution body terminates an access dispute under 3
section 186, the dispute resolution body must make a determination on 4
access by the prospective user or user, as the case requires. 5
(2) In making an access determination the dispute resolution body must 6
comply with this Chapter and the Rules. 7
(3) An access determination must-- 8
(a) be in writing; and 9
(b) include a statement of reasons for making the determination; and 10
(c) be given to the parties without delay. 11
(4) An access determination has effect on and after the date specified in the 12
determination. 13
185 Dispute resolution body may require parties to mediate, conciliate or 14
engage in an alternative dispute resolution process 15
(1) The dispute resolution body may require the parties, in accordance with 16
the Rules, to mediate, conciliate or engage in another alternative dispute 17
resolution process for the purpose of resolving the dispute. 18
(2) A party must comply with a requirement under subsection (1). 19
186 Dispute resolution body may terminate access dispute in certain cases 20
(1) The dispute resolution body may at any time terminate an access dispute 21
(without making an access determination) if the dispute resolution body 22
considers that-- 23
(a) the notification of the access dispute was vexatious; or 24
(b) the subject matter of the dispute is trivial, misconceived or 25
lacking in substance; or 26
(c) the party who notified the access dispute had, but did not avail 27
itself of, an opportunity to engage in negotiations in good faith 28
with the other party before that notification; or 29
(d) a specified dispute termination circumstance has occurred. 30
(2) Subject to section 188, the dispute resolution body may also terminate 31
an access dispute (without making an access determination) if the 32
dispute resolution body considers that the aspect of access about which 33
there is a dispute is expressly or impliedly dealt with under a contract 34
between, as the case requires-- 35
(a) the prospective user and service provider; 36
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(b) the user and service provider. 1
(3) In this section-- 2
specified dispute termination circumstance means a circumstance 3
specified by the Rules as being a circumstance, the occurrence of which, 4
entitles the dispute resolution body to terminate an access dispute 5
(without making an access determination). 6
187 No access determination if dispute resolution body considers there is 7
genuine competition 8
Despite anything to the contrary in this Chapter, the dispute resolution 9
body may refuse to make an access determination that requires the 10
service provider to provide a particular pipeline service to a prospective 11
user or user if the dispute resolution body considers that the pipeline 12
service the subject of the access dispute could be provided on a 13
genuinely competitive basis by a person other than the service provider 14
or an associate of the service provider. 15
188 Restrictions on access determinations 16
(1) The dispute resolution body must not make an access determination that 17
would have any of the following effects: 18
(a) preventing a user obtaining a sufficient amount of a pipeline 19
service under a contract or previous access determination to be 20
able to meet the user's reasonably anticipated requirements, 21
measured at the time the access dispute was notified; 22
(b) preventing a prospective user or user from obtaining, by the 23
exercise of a pre-notification right, a sufficient amount of a 24
pipeline service to be able to meet the prospective user's or user's 25
actual requirements; 26
(c) depriving a person of a relevant protected contractual right. 27
(2) In this section-- 28
pre-notification right means a right under a contract, or under an access 29
determination, that was in force at the time when the access dispute was 30
notified under section 181; 31
relevant exclusivity right means an express contractual right that arose 32
on or after 30 March 1995 that-- 33
(a) prevents a service provider supplying pipeline services to persons 34
who are not parties to the contract; or 35
(b) limits or controls a service provider's ability to supply pipeline 36
services to persons who are not parties to the contract, 37
but does not include a user's contractual right to obtain a certain amount 38
of pipeline services; 39
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relevant protected contractual right means a right under a contract 1
(other than a relevant exclusivity right) that was in force immediately 2
before the notification of an access dispute under section 181. 3
189 Access determination must give effect to applicable access 4
arrangement 5
Subject to sections 190 and 191 and any Rules made for the purposes of 6
this Part, the dispute resolution body must, in making an access 7
determination, give effect to the applicable access arrangement-- 8
(a) applying to the pipeline services provided, or to be provided, by 9
means of the access dispute pipeline; and 10
(b) in effect at the time the determination is made, 11
(even though that arrangement may not have been in force when 12
notification of the access dispute was given). 13
190 Access determinations and past contributions of capital to fund 14
installations or the construction of new facilities 15
(1) In making an access determination, the dispute resolution body may 16
(where relevant) take into account past contributions of capital to fund 17
installations or the construction of new facilities. 18
(2) Without limiting section 74, the Rules may-- 19
(a) specify the matters that the dispute resolution body must address 20
in making that access determination; 21
(b) specify the content of that access determination. 22
191 Rules may allow determination that varies applicable access 23
arrangement for installation of a new facility 24
(1) This section applies if the dispute resolution body is proposing to make 25
an access determination that will require-- 26
(a) a service provider to install or construct a new facility to expand 27
the capacity of the access dispute pipeline; and 28
(b) the prospective user or user who is a party to the access dispute 29
to contribute some or all of the capital to fund the installation or 30
construction of the new facility. 31
(2) Without limiting section 74, the Rules may-- 32
(a) confer a function or power on the dispute resolution body to, 33
when making the access determination, vary the applicable 34
access arrangement; and 35
(b) specify the matters that the dispute resolution body must address 36
in making that access determination; and 37
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(c) specify the kinds of variations that may be made to the applicable 1
access arrangement; and 2
(d) specify the content of that access determination. 3
192 Access determinations need not require the provision of a pipeline 4
service 5
An access determination may, but need not, require a service provider 6
to provide a pipeline service to a prospective user. 7
193 Content of access determinations 8
Subject to this Chapter, an access determination may deal with any 9
matter relating to the provision of a pipeline service to a prospective 10
user or user. 11
Example. An access determination may require the service provider to provide 12
a pipeline service to the prospective user or user at-- 13
(a) a specified tariff, rate or charge; and 14
(b) on specified terms and conditions. 15
Part 4 Variation of access determinations 16
194 Variation of access determination 17
(1) The dispute resolution body may vary an access determination on the 18
application of any party to the determination. However, it cannot vary 19
the final determination if any other party objects. 20
Note. If the parties cannot agree on a variation, a new access dispute can be 21
notified under section 181. 22
(2) Section 188 applies to a variation under this section as if-- 23
(a) an access dispute arising out of the access determination had been 24
notified when the application was made to the dispute resolution 25
body for the variation of the determination; and 26
(b) the variation were the making of an access determination in the 27
terms of the varied determination. 28
Part 5 Compliance with access determinations 29
195 Compliance with access determination 30
A party to an access dispute in respect of which an access determination 31
is made must comply with the access determination. 32
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Part 6 Access dispute hearing procedure 1
196 Hearing to be in private 2
(1) Subject to subsection (2), a dispute hearing is to be in private. 3
(2) If the parties agree, a dispute hearing or part of a dispute hearing may 4
be conducted in public. 5
(3) The dispute resolution body may give written directions as to the 6
persons who may be present at a dispute hearing that is conducted in 7
private. 8
(4) In giving directions under subsection (3), the dispute resolution body 9
must have regard to the wishes of the parties and the need for 10
commercial confidentiality. 11
197 Right to representation 12
In a dispute hearing a party may appear in person or be represented by 13
another person. 14
198 Procedure of dispute resolution body 15
(1) In a dispute hearing the dispute resolution body-- 16
(a) is not bound by technicalities, legal forms or rules of evidence; 17
and 18
(b) must act as speedily as a proper consideration of the access 19
dispute allows, having regard to the need to carefully and quickly 20
inquire into and investigate the access dispute and all matters 21
affecting the merits, and fair settlement, of the access dispute; 22
and 23
(c) may inform itself about any matter relevant to the access dispute 24
in any way it thinks appropriate. 25
(2) The dispute resolution body may determine the periods that are 26
reasonably necessary for the fair and adequate presentation of the 27
respective cases of the parties in the dispute hearing, and may require 28
that the cases be presented within those periods. 29
(3) The dispute resolution body may require evidence or argument to be 30
presented in writing, and may decide the matters on which the dispute 31
resolution body will hear oral evidence or argument. 32
(4) The dispute resolution body may determine that a dispute hearing is to 33
be conducted by-- 34
(a) telephone; or 35
(b) closed circuit television; or 36
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(c) any other means of communication. 1
(5) The Rules may make further provision about the procedure for the 2
conduct of dispute hearings. 3
199 Particular powers of dispute resolution body in a hearing 4
(1) The dispute resolution body may do any of the following things for the 5
purpose of determining an access dispute: 6
(a) give a direction in the course of, or for the purpose of, a dispute 7
hearing; 8
(b) hear and determine the access dispute in the absence of a party 9
who has been given notice of the dispute hearing; 10
(c) sit at any place; 11
(d) adjourn to any time and place; 12
(e) refer any matter to an independent expert and accept the expert's 13
report as evidence. 14
(2) The dispute resolution body may make an interim determination. 15
200 Disclosure of information 16
(1) The dispute resolution body may give an oral or written order to a 17
person not to divulge or communicate to anyone else specified 18
information that was given to the person in the course of an access 19
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 21
with an order under subsection (1). 22
Maximum penalty: 23
(a) in the case of a natural person--$2 000; 24
(b) in the case of a body corporate--$10 000. 25
201 Power to take evidence on oath or affirmation 26
(1) The dispute resolution body may take evidence on oath or affirmation 27
and for that purpose the dispute resolution body may administer an oath 28
or affirmation. 29
(2) The dispute resolution body may summon a person to appear before the 30
dispute resolution body to-- 31
(a) give evidence; or 32
(b) produce such documents (if any) as are referred to in the 33
summons; or 34
(c) give evidence and produce such documents (if any) as are 35
referred to in the summons. 36
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(3) The powers in this section may be exercised only for the purposes of 1
hearing and determining an access dispute. 2
202 Failing to attend as a witness 3
A person who is served, as prescribed by the Regulations, with a 4
summons to appear as a witness before the dispute resolution body must 5
not, without reasonable excuse-- 6
(a) fail to attend as required by the summons; or 7
(b) fail to appear and report himself or herself from day to day unless 8
excused, or released from further attendance, by the dispute 9
resolution body. 10
Maximum penalty: $2 000. 11
203 Failing to answer questions etc 12
(1) A person appearing as a witness before the dispute resolution body must 13
not, without reasonable excuse-- 14
(a) refuse or fail to be sworn or to make an affirmation; or 15
(b) refuse or fail to answer a question that the person is required to 16
answer by the dispute resolution body; or 17
(c) refuse or fail to produce a document that he or she is required to 18
produce by a summons under this Chapter served on him or her 19
as prescribed by the Regulations. 20
Maximum penalty: $2 000. 21
(2) It is a reasonable excuse for the purposes of subsection (1) for a natural 22
person to refuse or fail to answer a question or produce a document on 23
the ground that the answer or the production of the document might-- 24
(a) tend to incriminate the person; or 25
(b) expose the person to a criminal penalty. 26
(3) Subsection (2) does not limit what is a reasonable excuse for the 27
purposes of subsection (1). 28
204 Intimidation etc 29
A person must not-- 30
(a) threaten, intimidate or coerce another person; or 31
(b) cause or procure damage, loss or disadvantage to another person, 32
because that other person-- 33
(c) proposes to produce, or has produced, documents to the dispute 34
resolution body; or 35
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(d) proposes to appear, or has appeared, as a witness before the 1
dispute resolution body. 2
Maximum penalty: $2 000. 3
205 Party may request dispute resolution body to treat material as 4
confidential 5
(1) A party in a dispute hearing may-- 6
(a) inform the dispute resolution body that, in the party's opinion, a 7
specified part of a document contains confidential information; 8
and 9
(b) request the dispute resolution body not to give a copy of that part 10
to another party. 11
(2) On receiving a request, the dispute resolution body must-- 12
(a) inform the other party or parties that the request has been made 13
and of the general nature of the matters to which the relevant part 14
of the document relates; and 15
(b) ask the other party or parties whether there is any objection to the 16
dispute resolution body complying with the request. 17
(3) If there is an objection to the dispute resolution body complying with 18
the request, the party objecting may inform the dispute resolution body 19
of the objection and of the reasons for it. 20
(4) After considering-- 21
(a) a request; and 22
(b) any objection; and 23
(c) any further submissions that any party has made in relation to the 24
request, 25
the dispute resolution body may decide-- 26
(d) not to give the other party or parties a copy of so much of the 27
document as contains confidential information that the dispute 28
resolution body thinks should not be given; or 29
(e) to give the other party or another specified party a copy of the 30
whole, or part, of the part of the document that contains 31
confidential information subject to a condition that the party give 32
an undertaking not to disclose the information to another person 33
except to the extent specified by the dispute resolution body and 34
subject to such other conditions as the dispute resolution body 35
determines. 36
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206 Costs 1
(1) Each party is to bear its own costs in a dispute hearing except to the 2
extent that an order under this section specifies otherwise. 3
(2) At any time, the dispute resolution body may order that a party pay all 4
or a specified part of the costs of another party in a dispute hearing. 5
(3) The dispute resolution body may make an order under subsection (2) 6
only if satisfied that it is fair to do so, having regard to-- 7
(a) whether a party has conducted the dispute hearing in a way that 8
unnecessarily disadvantaged another party by conduct such as-- 9
(i) failing to comply with an order or direction of the dispute 10
resolution body without reasonable excuse; 11
(ii) failing to comply with this Law, the Regulations or the 12
Rules; 13
(iii) asking for an adjournment as a result of subparagraph (i) 14
or (ii); 15
(iv) causing an adjournment; 16
(v) attempting to deceive another party or the dispute 17
resolution body; 18
(vi) vexatiously conducting an access dispute; 19
(b) whether a party has been responsible for prolonging 20
unreasonably the time taken to complete the dispute hearing; 21
(c) the relative strengths of the claims made by each of the parties, 22
including whether a party has made a claim that has no tenable 23
basis in fact or law; 24
(d) the nature and complexity of the access dispute; 25
(e) any other matter the dispute resolution body considers relevant. 26
(4) A party to whom an order made under subsection (2) is directed must 27
comply with the order. 28
(5) If the dispute resolution body considers that the representative of a 29
party, rather than the party, is responsible for conduct described in 30
subsection (3)(a) or (b), the dispute resolution body may order that the 31
representative in his or her own capacity compensate another party for 32
any costs incurred unnecessarily. 33
(6) Before making an order under subsection (5), the dispute resolution 34
body must give the representative a reasonable opportunity to be heard. 35
(7) A representative of a party to whom an order made under subsection (5) 36
is directed must comply with the order. 37
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(8) If the dispute resolution body makes an order for costs before the end of 1
an access dispute, the dispute resolution body may require that the order 2
be complied with before it continues with the proceeding. 3
(9) If the dispute resolution body makes an order for costs, the dispute 4
resolution body may fix the amount of costs itself. 5
(10) This section applies to costs incurred by the parties in a dispute hearing 6
even if the notification of the access dispute to which the dispute 7
hearing relates is withdrawn. 8
207 Outstanding costs are a debt due to party awarded the costs 9
Costs that are payable under section 206(4) or (7)-- 10
(a) are a debt due to the party to whom the dispute resolution body 11
has ordered that they be paid; and 12
(b) may be recovered by that party in a court of competent 13
jurisdiction. 14
Part 7 Joint access dispute hearings 15
208 Definition 16
In this Part-- 17
nominated disputes has the meaning given by section 209(2). 18
209 Joint dispute hearing 19
(1) This section applies if-- 20
(a) the dispute resolution body is conducting 2 or more dispute 21
hearings at a particular time; and 22
(b) 1 or more matters are common to the access disputes in relation 23
to which the dispute hearings are being conducted. 24
(2) The dispute resolution body may, by notice in writing, decide that it will 25
hold a joint dispute hearing in respect of such of those access disputes 26
(the nominated disputes) as are specified in the notice. 27
(3) The dispute resolution body may do so only if it considers this would be 28
likely to result in the nominated disputes being resolved in a more 29
efficient and timely manner. 30
210 Consulting the parties 31
(1) Before making a decision under section 209(2), the dispute resolution 32
body must give each party to each of the nominated disputes a notice in 33
writing-- 34
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(a) specifying what the dispute resolution body is proposing to do; 1
and 2
(b) inviting the party to make a written submission on the proposal to 3
the dispute resolution body within 10 business days after the 4
notice is given. 5
(2) The dispute resolution body must have regard to any submission so 6
made in deciding whether to do so. The dispute resolution body may 7
have regard to any other matter it considers relevant. 8
211 Constitution and procedure of dispute resolution body for joint dispute 9
hearings 10
Chapter 6 Part 6 applies to the joint dispute hearing in a corresponding 11
way to the way in which it applies to a particular dispute hearing. 12
212 Record of proceedings etc 13
(1) The dispute resolution body as constituted for the purposes of the joint 14
dispute hearing may have regard to any record of the proceedings of the 15
dispute of any of the nominated disputes. 16
(2) The dispute resolution body as constituted for the purposes of the 17
dispute hearing of each of the nominated disputes may, for the purposes 18
of making an access determination in relation to the access dispute to 19
which that hearing relates-- 20
(a) have regard to any record of the proceedings of the joint dispute 21
hearing; and 22
(b) adopt any findings of fact made by the dispute resolution body as 23
constituted for the purposes of the joint dispute hearing. 24
Part 8 Miscellaneous matters 25
213 Correction of access determinations for clerical mistakes etc 26
If an access determination contains-- 27
(a) a clerical mistake; or 28
(b) an error arising from an accidental slip or omission; or 29
(c) a material miscalculation of figures or a material mistake in the 30
description of any person, thing or matter referred to in the 31
determination; or 32
(d) a defect in form, 33
the dispute resolution body may correct the access determination. 34
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214 Reservation of capacity during an access dispute 1
A service provider who is in an access dispute with a user must not, 2
without the consent of the user, alter the rights that the user has to use 3
the capacity of the access dispute pipeline during the period of the 4
dispute. 5
215 Subsequent service providers bound by access determinations 6
(1) An access determination applies to every subsequent service provider as 7
if that subsequent service provider were a party to the access dispute in 8
respect of which the access determination was made. 9
(2) In this section-- 10
subsequent service provider means a service provider (other than the 11
service provider to whom the access determination applies) who 12
provides pipeline services-- 13
(a) the subject of the access dispute; and 14
(b) in respect of which the access determination was made. 15
216 Regulations about the costs to be paid by parties to access dispute 16
The Regulations may provide for the dispute resolution body to-- 17
(a) charge the parties to an access dispute for its costs in the access 18
dispute; and 19
(b) apportion those costs between the parties. 20
Chapter 7 The Natural Gas Services Bulletin Board 21
Part 1 The Bulletin Board Operator 22
217 The Bulletin Board operator 23
The Bulletin Board operator is the person prescribed by the Regulations 24
as the Bulletin Board operator. 25
218 Obligation to establish and maintain the Natural Gas Services Bulletin 26
Board 27
(1) The Bulletin Board operator first prescribed under section 217 must 28
establish a website, to be known as the Natural Gas Services Bulletin 29
Board, containing information of the kind specified in the Rules in 30
relation to natural gas services. 31
(2) The Bulletin Board operator must maintain the Natural Gas Services 32
Bulletin Board. 33
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(3) The Bulletin Board operator may replace the website with another 1
website containing information of the kind specified in the Rules in 2
relation to natural gas services. 3
219 Other functions of the Bulletin Board operator 4
The Bulletin Board operator also has the following functions: 5
(a) to collect and collate Bulletin Board information; 6
(b) to collect and collate other information in relation to natural gas 7
services for inclusion on the Natural Gas Services Bulletin 8
Board; 9
(c) to derive from information of the type mentioned in paragraphs 10
(a) and (b) information for inclusion on the Natural Gas Services 11
Bulletin Board; 12
(d) to publish information on the Natural Gas Services Bulletin 13
Board of the kinds that may or must be included on the Natural 14
Gas Services Bulletin Board under the Rules; 15
(e) to manage information of the type mentioned in paragraphs (a), 16
(b) and (c); 17
(f) such other functions as are conferred on the Bulletin Board 18
operator by this Law, the Rules or any other law prescribed by the 19
Regulations for the purposes of this paragraph. 20
220 Powers of the Bulletin Board operator 21
The Bulletin Board operator has the power to do all things necessary or 22
convenient to be done for or in connection with the performance of its 23
functions. 24
221 Immunity of the Bulletin Board operator 25
(1) The Bulletin Board operator or an officer or employee of the Bulletin 26
Board operator does not incur any civil monetary liability for an act or 27
omission in the performance or exercise, or purported performance or 28
exercise, of a function or power of the Bulletin Board operator under 29
this Law or the Rules unless the act or omission is done or made in bad 30
faith or through negligence. 31
(2) The civil monetary liability for an act or omission of a kind referred to 32
in subsection (1) done or made through negligence may not exceed the 33
prescribed maximum amount. 34
(3) The Regulations may, for the purposes of subsection (2), without 35
limitation do all or any of the following: 36
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(a) prescribe a maximum amount that is limited in its application to 1
persons, events, circumstances, losses or periods specified in the 2
Regulations; 3
(b) prescribe maximum amounts that vary in their application 4
according to the persons to whom or the events, circumstances, 5
losses or periods to which they are expressed to apply; 6
(c) prescribe the manner in which a maximum amount is to be 7
divided amongst claimants. 8
(4) The Bulletin Board operator may enter into an agreement with a person 9
varying or excluding the operation of a provision of this section and, to 10
the extent of that agreement, that provision does not apply. 11
(5) This section does not apply to any liability of an officer or employee of 12
a body corporate to the body corporate. 13
(6) In this section-- 14
civil monetary liability means liability to pay damages or compensation 15
or any other amount ordered in a civil proceeding, but does not include 16
liability to pay a civil penalty under this Law, an infringement penalty 17
under Chapter 8 Part 7 or the costs of a proceeding. 18
222 Fees for services provided 19
(1) The Bulletin Board operator may charge a fee specified, or a fee 20
calculated in accordance with a formula or methodology specified, in 21
the Rules for access by a person to-- 22
(a) the Natural Gas Services Bulletin Board; or 23
(b) Bulletin Board information. 24
(2) The fee must not be such as to amount to taxation. 25
Part 2 Bulletin Board information 26
223 Obligation to give information to the Bulletin Board operator 27
(1) A person of the following kind who has possession or control of 28
information in relation to natural gas services must give the Bulletin 29
Board operator the information if the person is required to do so under 30
the Rules: 31
(a) a service provider; 32
(b) a gas market operator; 33
(c) a user; 34
(d) a non scheme pipeline user; 35
(e) a producer; 36
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(f) a storage provider; 1
(g) another person who is prescribed by the Regulations for the 2
purposes of this paragraph. 3
(2) The information must be given to the Bulletin Board operator in 4
accordance with the Rules. 5
(3) Subsection (1) does not apply if the person is exempt under the Rules 6
from giving the information. 7
224 Person cannot rely on duty of confidence to avoid compliance with 8
obligation 9
A person must not refuse to comply with the requirement in section 10
223(1) on the ground of any duty of confidence. 11
225 Giving to Bulletin Board operator false and misleading information 12
A person must not give Bulletin Board information to the Bulletin 13
Board operator that the person knows is false or misleading in a material 14
particular. 15
226 Immunity of persons giving information to the Bulletin Board operator 16
(1) A person who gives Bulletin Board information to the Bulletin Board 17
operator does not incur any civil monetary liability for an act or 18
omission in giving that information unless the act or omission is done 19
or made in bad faith or through negligence. 20
(2) The civil monetary liability for an act or omission of a kind referred to 21
in subsection (1) done or made through negligence may not exceed the 22
prescribed maximum amount. 23
(3) The Regulations may, for the purposes of subsection (2), without 24
limitation do all or any of the following: 25
(a) prescribe a maximum amount that is limited in its application to 26
persons, events, circumstances, losses or periods specified in the 27
Regulations; 28
(b) prescribe maximum amounts that vary in their application 29
according to the persons to whom or the events, circumstances, 30
losses or periods to which they are expressed to apply; 31
(c) prescribe the manner in which a maximum amount is to be 32
divided amongst claimants. 33
(4) A person mentioned in subsection (1) may enter into an agreement with 34
another person varying or excluding the operation of a provision of this 35
section and, to the extent of that agreement, that provision does not 36
apply. 37
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(5) In this section-- 1
civil monetary liability means liability to pay damages or compensation 2
or any other amount ordered in a civil proceeding, but does not include 3
liability to pay a civil penalty under this Law, an infringement penalty 4
under Chapter 8 Part 7 or the costs of a proceeding. 5
Part 3 Protection of information 6
227 Protection of information by the Bulletin Board operator 7
(1) The Bulletin Board operator must not copy, record, use or disclose 8
information that is Bulletin Board information, except for the purposes 9
of exercising powers or performing functions as the Bulletin Board 10
operator. 11
(2) If a person ceases to be the Bulletin Board operator, the person must not 12
afterwards copy, record, use or disclose information that is Bulletin 13
Board information and that was disclosed to the person as the Bulletin 14
Board operator. 15
(3) Subsection (1) does not apply if-- 16
(a) the Bulletin Board operator has the written consent for the 17
copying, recording, use or disclosure from-- 18
(i) the person who gave the information; or 19
(ii) the person from whom the person referred to in 20
subparagraph (i) received that information; or 21
(b) the information is publicly available; or 22
(c) the information is required to be used or disclosed because of the 23
operation of a law of this jurisdiction or another participating 24
jurisdiction; or 25
(d) the information is also disclosed to the Bulletin Board operator-- 26
(i) for reasons other than compliance with section 223(1); and 27
(ii) in circumstances other than those expressly permitted by 28
the Rules. 29
228 Protection of information by employees etc of the Bulletin Board 30
operator 31
(1) A person who is-- 32
(a) an officer of the Bulletin Board operator; or 33
(b) an employee of the Bulletin Board operator; or 34
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(c) a person performing work for or rendering services to the 1
Bulletin Board operator otherwise than as an officer or employee, 2
must not copy, record, use or disclose information that is Bulletin Board 3
information, except in that person's capacity as a person who is 4
exercising powers or performing functions, or assisting in the exercise 5
of powers or performance of functions, for the Bulletin Board operator 6
as the Bulletin Board operator. 7
(2) If-- 8
(a) information is Bulletin Board information; and 9
(b) the information is disclosed to a person in the person's capacity 10
as-- 11
(i) an officer of the Bulletin Board operator; or 12
(ii) an employee of the Bulletin Board operator; or 13
(iii) a person performing work for or rendering services to the 14
Bulletin Board operator otherwise than as an officer or 15
employee, 16
exercising powers or performing functions, or assisting in the 17
exercise of powers or performance of functions, for the Bulletin 18
Board operator; and 19
(c) 1 of the following applies: 20
(i) in the case of an officer of the Bulletin Board operator-- 21
the person ceases to be an officer acting in that capacity; 22
(ii) in the case of an employee of the Bulletin Board 23
operator--the person ceases to be an employee acting in 24
that capacity; 25
(iii) in the case of a person performing work for or rendering 26
services to the Bulletin Board operator otherwise than as 27
an officer or employee--the person ceases to be a person 28
of that kind acting in that capacity, 29
the person must not afterwards copy, record, use or disclose the 30
information. 31
(3) Subsections (1) and (2) do not apply if-- 32
(a) the person has the written consent for the copying, recording, use 33
or disclosure from-- 34
(i) the person who gave the information; or 35
(ii) the person from whom the person referred to in 36
subparagraph (i) received that information; or 37
(b) the information is publicly available; or 38
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(c) the information is required to be used or disclosed because of the 1
operation of a law of this jurisdiction or another participating 2
jurisdiction; or 3
(d) the information is also disclosed to the person-- 4
(i) for reasons other than compliance with section 223(1); and 5
(ii) in circumstances other than those expressly permitted by 6
the Rules. 7
Chapter 8 Proceedings under the National Gas 8
Law 9
Part 1 Proceedings generally 10
229 Instituting civil proceedings under this Law 11
(1) Proceedings may not be instituted in a court in respect of a breach of a 12
provision of this Law, the Regulations or Rules that is not an offence 13
provision by any person except as provided for in this Chapter. 14
(2) The AER may, in accordance with Chapter 8 Part 2, institute civil 15
proceedings in respect of a breach of-- 16
(a) a provision of this Law that is not an offence provision (including 17
a provision that is a civil penalty provision or conduct provision); 18
or 19
(b) a provision of the Regulations that is not an offence provision 20
(including a provision that is a civil penalty provision or conduct 21
provision); or 22
(c) a provision of the Rules (including a provision that is a civil 23
penalty provision or a conduct provision). 24
(3) A person other than the AER may, in accordance with Chapter 8 Part 2, 25
institute civil proceedings in respect of a breach of a conduct provision. 26
230 Time limit within which proceedings may be instituted 27
(1) The AER may only institute a proceeding for a breach, by a person, of 28
a provision of this Law, the Regulations or the Rules that is not an 29
offence provision within 6 years after the date on which the breach 30
occurred. 31
(2) A person, other than the AER, may only institute a proceeding for a 32
breach of a conduct provision by another person within 6 years after the 33
date on which the breach occurred. 34
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Part 2 Proceedings for breaches of this Law, 1
Regulations or the Rules 2
231 AER proceedings for breaches of this Law, Regulations or the Rules that 3
are not offences 4
(1) The Court may make an order, on application by the AER on behalf of 5
the Commonwealth, declaring that a person is in breach of a provision 6
of this Law, the Regulations or the Rules that is not an offence 7
provision. 8
Note. A Supreme Court of a participating jurisdiction that is a State may hear an 9
application by the AER under subsection (1) by operation of section 39(2) of the 10
Judiciary Act 1903 of the Commonwealth. 11
(2) If the order declares a person to be in breach of a provision of this Law 12
the Regulations or the Rules that is not an offence provision, the order 13
may include 1 or more of the following: 14
(a) an order that the person pay a civil penalty determined in 15
accordance with this Law, the Regulations and the Rules if the 16
breach is a breach of a civil penalty provision; 17
(b) an order that the person cease, within a specified period, the act, 18
activity or practice constituting the breach; 19
(c) an order that the person take such action, or adopt such practice, 20
as the Court requires for remedying the breach or preventing a 21
recurrence of the breach; 22
(d) an order that the person implement a specified program for 23
compliance with this Law, the Regulations and the Rules; 24
(e) an order of a kind prescribed by the Regulations. 25
(3) If a person has engaged, is engaging or is proposing to engage in any 26
conduct in breach of a provision of this Law, the Regulations or the 27
Rules that is not an offence provision, the Court may, on application by 28
the AER on behalf of the Commonwealth, grant an injunction-- 29
(a) restraining the person from engaging in the conduct; and 30
(b) if, in the Court's opinion, it is desirable to do so--requiring the 31
person to do something. 32
(4) The power of the Court under subsection (3) to grant an injunction 33
restraining a person from engaging in conduct of a particular kind may 34
be exercised-- 35
(a) if the Court is satisfied that the person has engaged in conduct of 36
that kind--whether or not it appears to the Court that the person 37
intends to engage again, or to continue to engage, in conduct of 38
that kind; or 39
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(b) if it appears to the Court that, if an injunction is not granted, it is 1
likely that the person will engage in conduct of that kind-- 2
whether or not the person has previously engaged in conduct of 3
that kind and whether or not there is an imminent danger of 4
substantial damage to any person if the person engages in 5
conduct of that kind. 6
232 Proceedings for declaration that a person is in breach of a conduct 7
provision 8
(1) The Court may make an order, on application by a person other than the 9
AER, declaring that another person is in breach of a conduct provision. 10
(2) If the order declares a person to be in breach of a conduct provision, the 11
order may include 1 or more of the following: 12
(a) an order that the person in breach cease, within a specified period, 13
the act, activity or practice constituting the breach; 14
(b) an order that the person in breach take such action, or adopt such 15
practice, as the Court requires for remedying the breach or 16
preventing a recurrence of the breach; 17
(c) an order that the person in breach implement a specified program 18
for compliance with this Law, the Regulations and the Rules; 19
(d) an order of a kind prescribed by the Regulations. 20
(3) If a person has engaged, is engaging or is proposing to engage in any 21
conduct in breach of a conduct provision, the Court may, on application 22
by another person (other than the AER), grant an injunction-- 23
(a) restraining the first mentioned person from engaging in the 24
conduct; and 25
(b) if, in the Court's opinion, it is desirable to do so--requiring the 26
first mentioned person to do something. 27
(4) The power of the Court under subsection (3) to grant an injunction 28
restraining a person from engaging in conduct of a particular kind may 29
be exercised-- 30
(a) if the Court is satisfied that the person has engaged in conduct of 31
that kind--whether or not it appears to the Court that the person 32
intends to engage again, or to continue to engage, in conduct of 33
that kind; or 34
(b) if it appears to the Court that, if an injunction is not granted, it is 35
likely that the person will engage in conduct of that kind-- 36
whether or not the person has previously engaged in conduct of 37
that kind and whether or not there is an imminent danger of 38
substantial damage to any person if the person in conduct of that 39
kind. 40
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233 Actions for damages by persons for breach of conduct provision 1
A person other than the AER who suffers loss or damage by conduct of 2
another person that was done in breach of a conduct provision may 3
recover the amount of the loss or damage by action against that other 4
person in a court of competent jurisdiction. 5
Part 3 Matters relating to breaches of this Law, the 6
Regulations or the Rules 7
234 Matters for which there must be regard in determining amount of civil 8
penalty 9
Every civil penalty ordered to be paid by a person declared to be in 10
breach of a provision of this Law, the Regulations or the Rules must be 11
determined having regard to all relevant matters, including-- 12
(a) the nature and extent of the breach; and 13
(b) the nature and extent of any loss or damage suffered as a result of 14
the breach; and 15
(c) the circumstances in which the breach took place; and 16
(d) whether the person has engaged in any similar conduct and been 17
found to be in breach of a provision of this Law, the Regulations 18
or the Rules in respect of that conduct; and 19
(e) whether the service provider had in place a compliance program 20
approved by the AER or required under the Rules, and if so, 21
whether the service provider has been complying with that 22
program. 23
235 Breach of a civil penalty provision is not an offence 24
A breach of a civil penalty provision is not an offence. 25
236 Breaches of civil penalty provisions involving continuing failure 26
For the purpose of determining the civil penalty for a breach of a civil 27
penalty provision, if the breach consists of a failure to do something that 28
is required to be done, the breach is to be regarded as continuing until 29
the act is done despite the fact that any period within which, or time 30
before which, the act is required to be done has expired or passed. 31
237 Conduct in breach of more than 1 civil penalty provision 32
(1) If the conduct of a person constitutes a breach of 2 or more civil penalty 33
provisions, proceedings may be instituted under this Law against the 34
person in relation to the breach of any 1 or more of those provisions. 35
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Note National Gas Law
(2) However, the person is not liable to more than 1 civil penalty under this 1
Law in respect of the same conduct. 2
Note. Clause 49 of Schedule 2 to this Law sets out further provisions in relation 3
to double jeopardy. 4
238 Persons involved in breach of civil penalty provision or conduct 5
provision 6
(1) A person must not-- 7
(a) aid, abet, counsel or procure a breach of a civil penalty provision 8
or conduct provision by another person; or 9
(b) be in any way directly or indirectly knowingly concerned in, or 10
party to, a breach of a civil penalty provision or conduct 11
provision by another person. 12
(2) This Law applies to a person who breaches subsection (1) in relation to 13
a civil penalty provision or conduct provision as if the person were a 14
person who has breached the civil penalty provision or conduct 15
provision. 16
239 Attempt to breach a civil penalty provision 17
A person who attempts to commit a breach of a civil penalty provision 18
commits a breach of that provision. 19
240 Civil penalties payable to the Commonwealth 20
If a person is ordered to pay a civil penalty, the penalty is payable to the 21
Commonwealth. 22
Part 4 Judicial review of decisions under this Law, the 23
Regulations and the Rules 24
241 Definition 25
In this Part-- 26
person aggrieved includes a person whose interests are adversely 27
affected. 28
242 Applications for judicial review of decisions of the AEMC 29
(1) A person aggrieved by-- 30
(a) a decision or determination of the AEMC under this Law, the 31
Regulations or the Rules; or 32
(b) a failure by the AEMC to make a decision or determination under 33
this Law, the Regulations or the Rules; or 34
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National Gas Law Note
(c) conduct engaged in, or proposed to be engaged in, by the AEMC 1
for the purpose of making a decision or determination under this 2
Law, the Regulations or the Rules, 3
may apply to the Court for judicial review of the decision or 4
determination, failure or conduct or proposed conduct. 5
Note. The Commonwealth Minister, NCC and AER are subject to judicial review 6
under the Administrative Decisions (Judicial Review) Act 1977 of the 7
Commonwealth. 8
(2) Unless the Court otherwise orders, the making of an application to the 9
Court under subsection (1) does not affect the operation of the decision 10
or determination referred to in that subsection or prevent the taking of 11
action to implement the decision or determination. 12
243 Applications for judicial review of decisions of the Bulletin Board 13
operator 14
(1) A person aggrieved by-- 15
(a) a decision or determination of the Bulletin Board operator under 16
this Law or the Rules; or 17
(b) a failure by the Bulletin Board operator to make a decision or 18
determination under this Law or the Rules; or 19
(c) conduct engaged in, or proposed to be engaged in, by the Bulletin 20
Board operator for the purpose of making a decision or 21
determination under this Law or the Rules, 22
may apply to the Court for judicial review of the decision or 23
determination, failure or conduct or proposed conduct. 24
(2) Unless the Court otherwise orders, the making of an application to the 25
Court under subsection (1) does not affect the operation of the decision 26
or determination referred to in that subsection or prevent the taking of 27
action to implement the decision or determination. 28
Part 5 Merits review and other non-judicial review 29
Division 1 Interpretation 30
244 Definitions 31
In this Part-- 32
AER information disclosure decision means a decision of the AER 33
under section 329 to disclose information, or the contents of a 34
document; 35
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affected or interested person or body means-- 1
(a) a service provider to whom a reviewable regulatory decision 2
applies; 3
(b) a user, prospective user or end user whose commercial interests 4
are materially affected by a reviewable regulatory decision; 5
(c) a user or consumer association; 6
(d) a person whose interests are affected by a reviewable regulatory 7
decision that is-- 8
(i) a coverage determination; or 9
(ii) a 15-year no-coverage determination; or 10
(iii) a coverage revocation determination; 11
applicant means-- 12
(a) an affected or interested person or body who has been granted 13
leave to apply for review by the Tribunal under Division 2; or 14
(b) a person who makes an application under section 263; 15
average annual regulated revenue means the annual average of 16
regulated revenue calculated for the regulatory period of an applicable 17
access arrangement; 18
coverage related light regulation decision means either of the 19
following reviewable regulatory decisions: 20
(a) a decision of the NCC under section 110(1); 21
(b) a decision of the NCC under section 119(3); 22
end user includes a person who acquires, or proposes to acquire, natural 23
gas for the purpose of on-selling that gas to a person who intends to 24
consume that gas; 25
intervener means a person or body referred to in section 253, 254 or 255 26
who has intervened in a review under Division 2 with the leave of the 27
Tribunal or otherwise; 28
NCC recommendation means-- 29
(a) a coverage recommendation; or 30
(b) a coverage revocation recommendation; or 31
(c) a no-coverage recommendation; or 32
(d) a price regulation exemption recommendation; 33
original decision maker means a relevant Minister, the Commonwealth 34
Minister, the AER or the NCC; 35
regulated revenue means the total revenue earned or to be earned by a 36
covered pipeline service provider-- 37
(a) under; and 38
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National Gas Law Note
(b) during the regulatory period of, 1
an applicable access arrangement through the provision of reference 2
services to which that arrangement applies; 3
regulatory period means the period specified in an applicable access 4
arrangement to be the regulatory period; 5
review under this Part means a review under Division 2 or Division 3; 6
reviewable regulatory decision means-- 7
(a) a Ministerial coverage decision; or 8
(b) a light regulation determination or a decision of the NCC under 9
Chapter 3 Part 2 not to make a light regulation determination; or 10
(c) decision of the NCC under Chapter 3 Part 2 to revoke or not 11
revoke a light regulation determination; or 12
(d) an applicable access arrangement decision (other than a full 13
access arrangement decision that does not approve a full access 14
arrangement); or 15
(e) an AER ring fencing determination; or 16
(f) a decision of the AER under section 146 to give an exemption; or 17
(g) an associate contract decision; or 18
(h) a decision of an original decision maker that is prescribed by the 19
Regulations to be a reviewable regulatory decision, 20
but does not include a decision of the AER made under Chapter 10 21
Part 2; 22
small/medium user or consumer intervener means a user or consumer 23
intervener that-- 24
(a) the members of which are only small to medium users or end 25
users; or 26
(b) if it does not have any such members, has, as an object or 27
purpose, the object or purpose of representing and promoting the 28
interests of small to medium users or end users; 29
small to medium user or end user means a user or end user whose 30
annual consumption of natural gas does not exceed a level (expressed in 31
terajoules) fixed by Regulation for the purposes of this definition; 32
user or consumer association means an association or body (whether 33
incorporated or unincorporated)-- 34
(a) the members of which include more than 1 user, prospective user 35
or end user; and 36
(b) that represents and promotes the interests of those members in 37
relation to the provision of natural gas services; 38
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user or consumer interest group means an association or body 1
(whether incorporated or unincorporated)-- 2
(a) that has, as an object or purpose, the object or purpose of 3
representing and promoting the interests of users or prospective 4
users or end users of natural gas services; but 5
(b) the members of which need not include a user, prospective user 6
or end user; 7
user or consumer intervener means-- 8
(a) a user or consumer association; or 9
(b) a user or consumer interest group, 10
that has made a submission or comment in relation to the making of a 11
reviewable regulatory decision following an invitation to do so under 12
this Law or the Rules. 13
Division 2 Merits review for reviewable regulatory decisions 14
245 Applications for review 15
(1) Subject to this section, an affected or interested person or body, with the 16
leave of the Tribunal, may apply to the Tribunal for a review of a 17
reviewable regulatory decision. 18
(2) An application must-- 19
(a) be made in the form and manner determined by the Tribunal; and 20
(b) specify the grounds for review being relied on. 21
246 Grounds for review 22
(1) An application under section 245(1) may be made only on 1 or more of 23
the following grounds: 24
(a) the original decision maker made an error of fact in the decision 25
maker's findings of facts, and that error of fact was material to the 26
making of the decision; 27
(b) the original decision maker made more than 1 error of fact in the 28
decision maker's findings of facts, and those errors of fact, in 29
combination, were material to the making of the decision; 30
(c) the exercise of the original decision maker's discretion was 31
incorrect, having regard to all the circumstances; 32
(d) the original decision maker's decision was unreasonable, having 33
regard to all the circumstances. 34
(2) It is for the applicant to establish a ground listed in subsection (1). 35
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247 By when an application must be made 1
(1) An application under section 245(1) in respect of a reviewable 2
regulatory decision (other than a coverage related light regulation 3
decision) must be made no later than 15 business days after the 4
reviewable regulatory decision is published in accordance with this Law 5
or the Rules. 6
(2) An application under section 245(1) in respect of a coverage related 7
light regulation decision must be made-- 8
(a) in the case of a decision of the NCC under section 110(1), no later 9
than 15 business days after the making of the coverage 10
determination relating to the coverage recommendation to which 11
the decision under section 110(1) is attached; 12
(b) in the case of a decision of the NCC under section 119(3), no later 13
than 15 business days after the making of the coverage revocation 14
determination relating to the coverage revocation 15
recommendation to which the decision under section 119(3) is 16
attached. 17
248 Tribunal must not grant leave unless serious issue to be heard and 18
determined 19
Subject to this Division, the Tribunal must not grant leave to apply 20
under section 245(1) unless it appears to the Tribunal that there is a 21
serious issue to be heard and determined as to whether a ground for 22
review set out in section 246(1) exists. 23
249 Leave must be refused if application is about an error relating to revenue 24
amounts below specified threshold 25
(1) This section applies if-- 26
(a) leave to apply under section 245(1) is about an error in a 27
reviewable regulatory decision that is a full access arrangement 28
decision; and 29
(b) the ground for review relied on by the applicant relates to the 30
amount of revenue that may be earned by a covered pipeline 31
service provider that is specified in or derived from that decision. 32
(2) Despite section 248, the Tribunal must not grant leave to apply under 33
section 245(1) even if there is a serious issue to be heard and determined 34
as to whether a ground for review set out in section 246(1) exists unless 35
the amount that is specified in or derived from the decision exceeds the 36
lesser of $5 000 000 or 2% of the average annual regulated revenue of 37
the covered pipeline service provider. 38
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250 Tribunal must refuse to grant leave if submission not made or is made 1
late 2
The Tribunal must not grant leave to apply under section 245(1) to a 3
person or body referred to in paragraph (b), (c) or (d) of the definition 4
of affected or interested person or body in section 244 if that person or 5
body-- 6
(a) did not make a submission or comment in relation to the making 7
of the reviewable regulatory decision under review following an 8
invitation to do so under this Law or the Rules; or 9
(b) did make a submission or comment in relation to the making of 10
the reviewable regulatory decision under review following an 11
invitation to do so under this Law or the Rules but that 12
submission-- 13
(i) was not made within the time required under this Law or 14
the Rules following that invitation; and 15
(ii) was not taken into account in the making of the decision. 16
251 Tribunal may refuse to grant leave to service provider in certain cases 17
(1) This section applies-- 18
(a) in relation to an application under section 245(1) by a service 19
provider for a review of a reviewable regulatory decision that 20
applies to the service provider; and 21
(b) if the Tribunal is satisfied of the matters set out in section 248 or 22
249 to grant leave to apply under section 245(1). 23
(2) Despite being satisfied of the matters set out in section 248 or 249 to 24
grant leave to apply under section 245(1), the Tribunal may refuse to 25
grant leave to the service provider if the Tribunal is satisfied the service 26
provider-- 27
(a) without reasonable excuse-- 28
(i) failed to comply with a request (including a request for 29
relevant information), or a direction made under this Law 30
or the Rules for the purpose of making the decision; or 31
(ii) conducted itself in a manner that resulted in the making of 32
the decision being delayed; or 33
(b) misled, or attempted to mislead-- 34
(i) in all cases, the original decision maker on a matter 35
relevant to the original decision maker's decision; 36
(ii) in the case of a reviewable regulatory decision that is a 37
Ministerial coverage decision, the NCC on a matter 38
relevant to the making of an NCC recommendation 39
relating to the decision. 40
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252 Effect of application on operation of reviewable regulatory decisions 1
An application under section 245(1)-- 2
(a) does not the stay the operation of the following reviewable 3
regulatory decisions: 4
(i) an applicable access arrangement decision approving or 5
making an applicable access arrangement; or 6
(ii) an associate contract decision; 7
(b) stays the operation of any other reviewable regulatory decision 8
on the granting of leave to apply by the Tribunal, unless the 9
Tribunal otherwise orders. 10
253 Intervention by others in a review without leave 11
Only the following persons may intervene in a review under this 12
Division without leave of the Tribunal: 13
(a) a service provider to whom the reviewable regulatory decision 14
being reviewed applies; 15
(b) a Minister of a participating jurisdiction. 16
254 Leave for reviewable regulatory decision process participants 17
(1) The Tribunal must grant leave to a person or body to intervene in a 18
review under this Division if that person or body is a reviewable 19
regulatory decision process participant. 20
(2) In this section-- 21
reviewable regulatory decision process participant means a person or 22
body (other than a user or consumer intervener) with a sufficient interest 23
in the reviewable regulatory decision being reviewed who-- 24
(a) has made a submission or comment in relation to the making of 25
that decision within the time required under this Law or the Rules 26
following an invitation to do so under this Law or the Rules; or 27
(b) has made a submission or comment in relation to the making of 28
that decision outside the time required under this Law or the 29
Rules following an invitation to do so under this Law or the Rules 30
but which was taken into account in the making of that decision. 31
255 Leave for user or consumer intervener 32
(1) A user or consumer intervener may apply to the Tribunal for leave to 33
intervene in a review of a reviewable regulatory decision under this 34
Division. 35
(2) The Tribunal may grant leave to a user or consumer intervener to 36
intervene in a review under this Division. 37
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(3) Without limiting subsection (2), the Tribunal may grant leave to a user 1
or consumer intervener to intervene in a review under this Division if 2
the Tribunal is satisfied-- 3
(a) the user or consumer intervener, in its application for leave to 4
intervene, raises a matter that will not be raised by the original 5
decision maker or the applicant; or 6
(b) the information or material the user or consumer intervener 7
wishes to present, or the submissions the user or consumer 8
intervener wishes to make, in the review are likely to be better 9
presented or made by the user or consumer intervener rather than 10
another party to the review; or 11
(c) the interests of the user or consumer intervener or its members are 12
affected by the decision being reviewed. 13
(4) For the purposes of subsection (3)(c)-- 14
(a) the interests of a user or consumer intervener are to be taken to be 15
affected if the reviewable regulatory decision being reviewed 16
relates to an object or purpose of the user or consumer intervener; 17
(b) the interests of a user or consumer intervener are not to be taken 18
to not be affected only because those interests do not coincide 19
with the interests of the applicant. 20
256 Interveners may raise new grounds for review 21
(1) An intervener may raise in a review under this Division any of the 22
grounds specified in section 246 even if the ground that is raised by the 23
intervener is not raised by the applicant. 24
(2) To avoid doubt, it is for the intervener to establish the ground referred 25
to in subsection (1). 26
257 Parties to a review under this Division 27
The parties to a review under this Division are-- 28
(a) the applicant; and 29
(b) the original decision maker whose decision is the reviewable 30
regulatory decision being reviewed under this Division; and 31
(c) an intervener. 32
258 Matters that parties to a review may and may not raise in a review 33
(1) An original decision maker whose decision is the reviewable regulatory 34
decision being reviewed under this Division may, in the review, raise-- 35
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(a) a matter not raised by the applicant or an intervener that relates to 1
a ground for review, or a matter raised in support of a ground for 2
review, raised by the applicant or an intervener; 3
(b) a possible outcome or effect on the reviewable regulatory 4
decision being reviewed that the original decision maker 5
considers may occur as a consequence of the Tribunal making a 6
determination setting aside or varying the reviewable regulatory 7
decision. 8
(2) A party (other than the original decision maker) to a review under this 9
Division may not raise any matter that was not raised in submissions in 10
relation to the reviewable regulatory decision before that decision was 11
made. 12
259 Tribunal must make determination 13
(1) If, following an application, the Tribunal grants leave in accordance 14
with section 245, the Tribunal must make a determination in respect of 15
the application. 16
Note. See section 260 for the time limit within which the Tribunal must make its 17
determination. 18
(2) A determination under this section may-- 19
(a) affirm, set aside or vary the reviewable regulatory decision; 20
(b) remit the matter back to the original decision maker to make the 21
decision again, in accordance with any direction or 22
recommendation of the Tribunal. 23
(3) For the purposes of making a determination of the kind in subsection 24
(2)(a), the Tribunal may perform all the functions and exercise all the 25
powers of the original decision maker under this Law or the Rules. 26
(4) In deciding whether to remit a matter back to the original decision 27
maker to make the decision again, the Tribunal must have regard to the 28
nature and relative complexities of-- 29
(a) the reviewable regulatory decision; and 30
(b) the matter the subject of the review. 31
(5) A determination by the Tribunal affirming, setting aside or varying the 32
reviewable regulatory decision is, for the purposes of this Law (other 33
than this Part), to be taken to be a decision of the original decision 34
maker. 35
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260 Target time limit for Tribunal for making a determination under this 1
Division 2
(1) The Tribunal must use its best endeavours to make a determination in 3
respect of the application for review under this Division-- 4
(a) within 3 months after the Tribunal grants leave in accordance 5
with section 245 (the standard period); or 6
(b) if the standard period is extended under this section--that period 7
as extended. 8
(2) If the Tribunal is unable to make a determination in respect of the 9
application within the standard period, or that period as extended, the 10
Tribunal must, by notice in writing, extend the standard period or that 11
period by a specified period. 12
(3) The Tribunal must give a copy of the notice to-- 13
(a) the applicant; and 14
(b) every other party to the application. 15
(4) The Tribunal may extend the standard period, or that period as 16
extended, more than once. 17
(5) If the Tribunal extends a period, it must publish a notice in a newspaper 18
circulating generally throughout Australia-- 19
(a) stating that it has done so; and 20
(b) specifying a date by which it must now use its best endeavours to 21
make the determination. 22
261 Matters to be considered by Tribunal in making determination 23
(1) Subject to this section, the Tribunal, in reviewing a reviewable 24
regulatory decision, must not consider any matter other than review 25
related matter. 26
(2) The Tribunal, in reviewing a reviewable regulatory decision, must-- 27
(a) in all cases, have regard to any document-- 28
(i) prepared, and used, by the original decision maker for the 29
purpose of making the reviewable regulatory decision; and 30
(ii) that the decision maker has made publicly available; and 31
(b) in the case of a reviewable regulatory decision that is a 32
Ministerial coverage decision, also have regard to any 33
document-- 34
(i) prepared, and used, by the NCC for the purpose of making 35
the NCC recommendation relating to the Ministerial 36
coverage decision; and 37
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(ii) that the NCC has made publicly available. 1
(3) In addition, if in a review, the Tribunal is of the view that a ground of 2
review has been established, the Tribunal may allow new information 3
or material to be submitted if the new information or material-- 4
(a) would assist it on any aspect of the determination to be made; and 5
(b) was not unreasonably withheld from-- 6
(i) in all cases, the original decision maker when the decision 7
maker was making the reviewable regulatory decision; and 8
(ii) in the case of a reviewable regulatory decision that is a 9
Ministerial coverage decision, the NCC when it was it 10
making the NCC recommendation related to Ministerial 11
coverage decision. 12
(4) Subject to this Law, for the purpose of subsection (3)(b), information or 13
material not provided to the original decision maker or the NCC (as the 14
case requires) following a request for that information or material by the 15
original decision maker or the NCC under this Law or the Rules is to be 16
taken to have been unreasonably withheld. 17
(5) Subsection (4) does not limit what may constitute an unreasonable 18
withholding of information or material. 19
(6) In the case of a review of a reviewable regulatory decision of the AER 20
that is a decision to make a full access arrangement decision in place of 21
an access arrangement that the AER did not approve, the Tribunal may 22
consider the reasons of the AER for its decision not to approve the 23
access arrangement. 24
(7) In this section-- 25
review related matter means-- 26
(a) the application for review and submissions in support of the 27
application; and 28
(b) the reviewable regulatory decision and the written record of it 29
and any written reasons for it; and 30
(c) in the case of a reviewable regulatory decision that is an 31
applicable access arrangement decision--any document, 32
proposal or information required or allowed under the Rules to be 33
submitted as part of the process for the making of the decision; 34
and 35
(d) any written submissions made to the original decision maker 36
before the reviewable regulatory decision was made or the NCC 37
before the making of an NCC recommendation; and 38
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(e) any reports and materials relied on by the original decision maker 1
in making the reviewable regulatory decision or the NCC in 2
making an NCC recommendation; and 3
(f) any draft of the reviewable regulatory decision or NCC 4
recommendation; and 5
(g) any submissions on-- 6
(i) the draft of the reviewable regulatory decision or the 7
reviewable regulatory decision itself considered by the 8
original decision maker; or 9
(ii) the draft of an NCC recommendation or the NCC 10
recommendation itself considered by the NCC; and 11
(h) the transcript (if any) of any hearing conducted by the original 12
decision maker for the purpose of making the reviewable 13
regulatory decision. 14
262 Assistance from NCC in certain cases 15
(1) This section applies if the reviewable regulatory decision being 16
reviewed under this Division is a Ministerial coverage decision. 17
(2) The member of the Tribunal presiding in the review may require the 18
NCC to give information and other assistance and to make reports, as 19
specified, by the member for the purposes of the review. 20
Division 3 Tribunal review of AER information disclosure 21
decisions under section 329 22
263 Application for review 23
(1) A person whose interests are adversely affected by an AER information 24
disclosure decision may apply to the Tribunal for a review of the 25
decision. 26
(2) An application must be made in the form and manner determined by the 27
Tribunal. 28
(3) An application may only be made on the ground that-- 29
(a) the decision was not made in accordance with law; or 30
(b) the decision is unreasonable having regard to all relevant 31
circumstances. 32
(4) The person must lodge the application with the Tribunal no later than 33
5 business days after the date of the notice given under section 329(2), 34
(3) or (6) to which the AER information disclosure decision relates 35
(whichever is the later). 36
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(5) An application under this section stays the operation of the decision 1
until the earlier of-- 2
(a) 20 business days; or 3
(b) the making of a determination by the Tribunal in respect of the 4
application. 5
264 Exclusion of public in certain cases 6
On the application of a party to a review under this Division, the 7
Tribunal may conduct the review in the absence of the public. 8
265 Determination in the review 9
(1) Subject to this Part, on receipt of an application under section 263, the 10
Tribunal must make a determination in respect of the application. 11
(2) A determination under this section must only-- 12
(a) affirm the AER information disclosure decision; or 13
(b) forbid disclosure by the AER of the information or document to 14
which the AER information disclosure decision the subject of the 15
review relates; or 16
(c) restrict, as specified in the determination, the intended disclosure 17
by the AER of the information or document to which the AER 18
information disclosure decision the subject of the review relates. 19
(3) For the purposes of making a determination of the kind in subsection 20
(2)(a), the Tribunal may perform all the functions and exercise all the 21
powers of the AER under this Law or the Rules. 22
(4) A determination by the Tribunal affirming, forbidding or restricting the 23
AER information disclosure decision is, for the purposes of this Law 24
(other than this Part), to be taken to be a decision of the AER. 25
266 Tribunal must be taken to have affirmed decision if decision not made 26
within time 27
(1) This section applies if the Tribunal does not make a determination under 28
section 265 within 20 business days after an application is lodged under 29
section 263. 30
(2) The Tribunal must be taken to have made a determination under section 31
265 affirming the AER information disclosure decision to which the 32
application relates. 33
267 Assistance from the AER in certain cases 34
The member of the Tribunal presiding in the review may require the 35
AER to give information and other assistance and to make reports, as 36
specified, by the member for the purposes of the review. 37
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Division 4 General 1
268 Costs in a review 2
(1) Subject to this section, the Tribunal may order that a party to a review 3
under this Part pay all or a specified part of the costs of another party to 4
the review. 5
(2) The Tribunal must not make an order requiring an original decision 6
maker or small/medium user or consumer intervener to pay the costs of 7
another party to the review unless the Tribunal considers that the 8
original decision maker or intervener has conducted their case in the 9
review without due regard to-- 10
(a) the costs that would have to be incurred by another party to the 11
review as a result of that conduct; or 12
(b) the time required by-- 13
(i) the Tribunal to hear the review as a result of that conduct; 14
or 15
(ii) another party to prepare their case as a result of that 16
conduct; or 17
(c) the submissions or arguments made to the Tribunal by another 18
party. 19
(3) The Tribunal may make an order requiring a user or consumer 20
intervener (that is not a small/medium user or consumer intervener) that 21
has intervened in the review to pay all or part of the costs of another 22
party to the review if the Tribunal considers that the intervener has 23
conducted their case in the review without due regard to-- 24
(a) the costs that would have to be incurred by another party to the 25
review as a result of that conduct; or 26
(b) the time required by-- 27
(i) the Tribunal to hear the review as a result of that conduct; 28
or 29
(ii) another party to prepare their case as a result of that 30
conduct; or 31
(c) the submissions or arguments made to the Tribunal by another 32
party. 33
269 Amount of costs 34
If the Tribunal makes an order for costs in a review under this Part, the 35
Tribunal may in that order fix the amount of costs payable by a party to 36
the review on-- 37
(a) a party and party basis; or 38
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(b) a solicitor and client basis; or 1
(c) an indemnity basis; or 2
(d) any other basis as the Tribunal may decide. 3
270 Review of Part 4
(1) The MCE must cause a review of this Part to be undertaken within 5
7 years after the commencement of this Part by a person nominated by 6
the MCE. 7
(2) The MCE must specify the matters to be addressed in the review. 8
(3) The person undertaking the review must, during the review, invite 9
public comment and submissions about the matters to be addressed in 10
the review. 11
(4) The person undertaking the review must report, in writing, to the MCE 12
on the outcome of the review by the date specified by the MCE. 13
Part 6 Enforcement of access determinations 14
271 Enforcement of access determinations 15
(1) If the Court is satisfied, on the application of a party to an access 16
determination, that another party to the determination has engaged, is 17
engaging, or is proposing to engage in conduct that constitutes a 18
contravention of the determination, the Court may make all or any of the 19
following orders: 20
(a) an order granting an injunction on such terms as the Court thinks 21
appropriate-- 22
(i) restraining the other party from engaging in the conduct; or 23
(ii) if the conduct involves refusing or failing to do 24
something--requiring the other party to do that thing; 25
(b) an order directing the other party to compensate the applicant for 26
loss or damage suffered as a result of the contravention; 27
(c) any other order that the Court thinks appropriate. 28
(2) The revocation of an access determination does not affect any remedy 29
under subsection (1) in respect of a contravention of the determination 30
that occurred when the determination was in force. 31
(3) If the Court has power under subsection (1) to grant an injunction 32
restraining a person from engaging in particular conduct, or requiring a 33
person to do anything, the Court may make any other orders (including 34
granting an injunction) that it thinks appropriate against any other 35
person who was involved in the contravention concerned. 36
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(4) A reference in this section to a person involved in the contravention is 1
a reference to a person who has-- 2
(a) aided, abetted, counselled or procured the contravention; or 3
(b) induced the contravention, whether through threats or promises 4
or otherwise; or 5
(c) been in any way (directly or indirectly) knowingly concerned in 6
or a party to the contravention; or 7
(d) conspired with others to effect the contravention. 8
272 Consent injunctions 9
On an application for an injunction under section 271, the Court may 10
grant an injunction by consent of all of the parties to the proceedings, 11
whether or not the Court is satisfied that the section applies. 12
273 Interim injunctions 13
The Court may grant an interim injunction pending determination of an 14
application under section 271. 15
274 Factors relevant to granting a restraining injunction 16
The power of the Court to grant an injunction under section 271 17
restraining a person from engaging in conduct may be exercised 18
whether or not-- 19
(a) it appears to the Court that the person intends to engage again, or 20
to continue to engage, in conduct of that kind; or 21
(b) the person has previously engaged in conduct of that kind; or 22
(c) there is an imminent danger of substantial damage to any person 23
if the first mentioned person engages in conduct of that kind. 24
275 Factors relevant to granting a mandatory injunction 25
The power of the Court to grant an injunction under section 271 26
requiring a person to do a thing may be exercised whether or not-- 27
(a) it appears to the Court that the person intends to refuse or fail 28
again, or to continue to refuse or fail, to do that thing; or 29
(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 31
if the first mentioned person refuses or fails to do that thing. 32
276 Discharge or variation of injunction or other order 33
The Court may discharge or vary an injunction or order granted under 34
this Part. 35
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Part 7 Infringement notices 1
277 Power to serve notice 2
(1) The AER may serve an infringement notice on a person that the AER 3
has reason to believe has breached a civil penalty provision. 4
(2) The AER must, however, serve an infringement notice not later than 5
12 months after the date on which the AER forms a belief that there has 6
been a breach of a civil penalty provision. 7
(3) An infringement notice may be served on a natural person-- 8
(a) by delivering it personally to the person; or 9
(b) by sending it by post addressed to the person to their usual or last 10
known place of residence or business. 11
(4) An infringement notice may be served on a person that is a body 12
corporate-- 13
(a) by delivering it personally to the registered office or usual or last 14
known place of business of the body corporate; or 15
(b) by sending it by post addressed to the body corporate to its 16
registered office or usual or last known place of business. 17
278 Form of notice 18
An infringement notice must state-- 19
(a) the date of the notice; 20
(b) that the alleged breach is a breach of the civil penalty provision; 21
(c) the nature, and a brief description, of the alleged breach; 22
(d) the date, time and place of the alleged breach; 23
(e) the infringement penalty for the alleged breach; 24
(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 26
notice is served) within which the infringement penalty must be 27
paid; 28
(h) that, if the amount of the infringement penalty is paid before the 29
end of the time specified in the notice, proceedings will not be 30
instituted in respect of the alleged breach by the AER unless the 31
notice is withdrawn before the end of that time in accordance 32
with section 282; 33
(i) that the person is entitled to disregard the notice and defend any 34
proceedings in respect of the civil penalty provision; 35
(j) any other particulars prescribed by the Regulations. 36
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279 Infringement penalty 1
The infringement penalty for a breach of a civil penalty provision is-- 2
(a) if the breach is alleged to have been committed by a natural 3
person--$4 000 or any lesser amount that is prescribed by the 4
Regulations in relation to the civil penalty provision; 5
(b) if the breach is alleged to have been committed by a body 6
corporate--$20 000 or any lesser amount that is prescribed by the 7
Regulations in relation to the civil penalty provision. 8
280 AER cannot institute proceedings while infringement notice on foot 9
On serving an infringement notice under this Part, the AER must not 10
institute a proceeding in respect of the breach for which the 11
infringement notice was served if-- 12
(a) the time for payment stated in the infringement notice has not 13
expired; and 14
(b) the infringement notice has not been withdrawn by the AER in 15
accordance with section 282. 16
281 Late payment of penalty 17
The AER may accept payment of the infringement penalty even after 18
the expiration of the time for payment stated in the infringement notice 19
if-- 20
(a) a proceeding has not been instituted in respect of the breach to 21
which the infringement penalty relates; and 22
(b) the infringement notice has not been withdrawn by the AER in 23
accordance with section 282. 24
282 Withdrawal of notice 25
(1) The AER may withdraw an infringement notice at any time before the 26
end of the time for payment specified in the notice by serving a 27
withdrawal notice on the person served with the infringement notice. 28
(2) A withdrawal notice may be served on a natural person-- 29
(a) by delivering it personally to the person; or 30
(b) by sending it by post addressed to the person to their usual or last 31
known place of residence or business. 32
(3) A withdrawal notice may be served on a person that is a body 33
corporate-- 34
(a) by delivering it personally to the registered office or usual or last 35
known place of business of the body corporate; or 36
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(b) by sending it by post addressed to the body corporate to its 1
registered office or usual or last known place of business. 2
(4) An infringement notice may be withdrawn even if the infringement 3
penalty has been paid. 4
283 Refund of infringement penalty 5
If an infringement notice is withdrawn in accordance with section 282, 6
the amount of any infringement penalty paid must be refunded by the 7
AER. 8
284 Payment expiates breach of civil penalty provision 9
No proceedings may be taken by the AER against a person on whom an 10
infringement notice was served in respect of an alleged breach of a civil 11
penalty provision if-- 12
(a) the infringement penalty is-- 13
(i) paid within the time for payment stated in the notice; and 14
(ii) not withdrawn by the AER within the time for payment 15
stated in the notice in accordance with section 282; or 16
(b) the infringement penalty is accepted in accordance with 17
section 281. 18
285 Payment not to have certain consequences 19
The payment of an infringement penalty under this Part is not and must 20
not be taken to be an admission of a breach of a civil penalty provision 21
or an admission of liability for the purpose of any proceeding instituted 22
in respect of the breach. 23
286 Conduct in breach of more than 1 civil penalty provision 24
(1) If the conduct of a person constitutes a breach of 2 or more civil penalty 25
provisions, an infringement notice may be served on the person under 26
this Part in relation to the breach of any 1 or more of those provisions. 27
(2) However, the person is not liable to pay more than 1 infringement 28
penalty in respect of the same conduct. 29
Part 8 Further provision for corporate liability for 30
breaches of this Law etc 31
287 Definition 32
In this Part-- 33
breach provision means an offence provision, a civil penalty provision 34
or a conduct provision. 35
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288 Offences and breaches by corporations 1
(1) If a corporation contravenes a breach provision, each officer of the 2
corporation is to be taken to have contravened the breach provision if 3
the officer knowingly authorised or permitted the contravention or 4
breach. 5
(2) An officer of a corporation may be proceeded against under a breach 6
provision pursuant to this section whether or not the corporation has 7
been proceeded against under the provision. 8
(3) Nothing in this section affects the liability of a corporation for a 9
contravention of a breach provision. 10
289 Corporations also in breach if officers and employees are in breach 11
If an officer or employee of a corporation commits an act in their 12
capacity as officer or employee of the corporation that would, if that act 13
were committed by the corporation, constitute a breach of a provision 14
of this Law, the Regulations or the Rules, that corporation is to be taken 15
to have contravened that provision. 16
Chapter 9 The making of the National Gas Rules 17
Part 1 General 18
Division 1 Interpretation 19
290 Definitions 20
In this Chapter-- 21
AEMC initiated Rule means a Rule of the kind referred to in section 22
295(2); 23
AEMC Rule review means a review conducted by the AEMC under 24
Chapter 2 Part 2 Division 5; 25
gas market regulatory body means-- 26
(a) the AER; 27
(b) the ERA; 28
(c) VENCorp; 29
(d) GMCo; 30
(e) REMCo; 31
(f) a person or body prescribed by Regulation to be a gas market 32
regulatory body; 33
GMCo means the Gas Market Company Ltd (ACN 095 400 258); 34
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market initiated proposed Rule means a request for a Rule made under 1
section 295(1) in respect of which the AEMC publishes a notice under 2
section 303; 3
more preferable Rule has the meaning given by section 296; 4
non-controversial Rule means a Rule that is unlikely to have a 5
significant effect on a market for gas or the regulation of pipeline 6
services; 7
proposed Rule means-- 8
(a) a market initiated proposed Rule; or 9
(b) a proposal for an AEMC initiated Rule; or 10
(c) a proposed more preferable Rule; 11
publish means-- 12
(a) in relation to a notice required to be published under this Chapter 13
(except section 294 or 315)--publish in the South Australian 14
Government Gazette, on the AEMC's website and in a 15
newspaper circulating generally throughout Australia; 16
(b) in relation to a decision under section 301(2)--publish on the 17
AEMC's website and make available at the offices of the AEMC; 18
(c) in relation to a proposed Rule referred to in section 303 and any 19
other documents prescribed by the Regulations in relation to a 20
proposed Rule referred to in section 303--publish on the 21
AEMC's website and make available at the offices of the AEMC; 22
(d) in relation to a draft Rule determination or final Rule 23
determination--publish on the AEMC's website and make 24
available at the offices of the AEMC; 25
(e) in relation to any submissions or comments received by the 26
AEMC under this Chapter--subject to section 319, publish on 27
the AEMC's website and make available at the offices of the 28
AEMC; 29
(f) in relation to a report prepared under section 320--publish on the 30
AEMC's website and make available at the offices of the AEMC; 31
REMCo means the Retail Energy Market Company Ltd 32
(ACN 103 318 556); 33
urgent Rule means a Rule relating to any matter or thing that, if not 34
made as a matter of urgency, will result in that matter or thing 35
imminently prejudicing or threatening the supply of gas. 36
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Division 2 Rule making tests 1
291 Application of national gas objective 2
(1) The AEMC may only make a Rule if it is satisfied that the Rule will or 3
is likely to contribute to the achievement of the national gas objective. 4
(2) For the purposes of subsection (1), the AEMC may give such weight to 5
any aspect of the national gas objective as it considers appropriate in all 6
the circumstances, having regard to any relevant MCE statement of 7
policy principles. 8
292 AEMC must take into account form of regulation factors in certain cases 9
In addition to complying with sections 291 and 293, the AEMC must 10
take into account the form of regulation factors and any other matter the 11
AEMC considers relevant-- 12
(a) in making a Rule that-- 13
(i) specifies a pipeline service as a reference service; or 14
(ii) confers a function or power on the AER to specify under a 15
full access arrangement decision approving or making an 16
access arrangement a pipeline service (to which the 17
relevant applicable access arrangement applies) as a 18
reference service; or 19
(b) in revoking a Rule that has been made or is in force that-- 20
(i) specifies a pipeline service as a reference service; or 21
(ii) confers a function or power on the AER to specify under a 22
full access arrangement decision approving or making an 23
access arrangement a pipeline service (to which the 24
relevant applicable access arrangement applies) as a 25
reference service. 26
293 AEMC must take into account revenue and pricing principles in certain 27
cases 28
In addition to complying with sections 291 and 292, the AEMC must 29
take into account the revenue and pricing principles in making a Rule 30
for or with respect to any matter or thing specified in items 40 to 48 of 31
Schedule 1 to this Law. 32
Part 2 Initial National Gas Rules 33
294 South Australian Minister to make initial National Gas Rules 34
(1) The Minister of the Crown in right of South Australia administering 35
Part 2 of the National Gas (South Australia) Act 2008 of South Australia 36
may make Rules for or with respect to-- 37
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National Gas Law Note
(a) any matter or thing referred to in section 74 and Schedule 1 to this 1
Law; 2
(b) matters of a transitional nature relating to the transition from the 3
old access law and Gas Code to the application of this Law and 4
the Rules. 5
(2) In subsection (1)-- 6
matters of a transitional nature include matters of an application or 7
savings nature. 8
(3) As soon as practicable after making Rules under subsection (1), the 9
Minister referred to in that subsection must-- 10
(a) publish notice of the making of the Rules in the South Australian 11
Government Gazette; and 12
(b) make the Rules publicly available. 13
(4) Section 74(3) applies to the making of Rules under subsection (1) as if 14
the Rules being made under subsection (1) were Rules being made by 15
the AEMC. 16
(5) The notice referred to in subsection (3)(a) must state-- 17
(a) the date on which the Rules commence operation; or 18
(b) if different Rules will commence operation on different dates, 19
those dates. 20
(6) The Rules made under subsection (1) may only be made on the 21
recommendation of the MCE. 22
(7) If the Minister referred to in subsection (1) makes Rules under that 23
subsection, the Minister cannot make another Rule under that 24
subsection. 25
Part 3 Procedure for the making of a Rule by the 26
AEMC 27
295 Initiation of making of a Rule 28
(1) The AEMC may make a Rule at the request of any person or the MCE. 29
Note. Section 74 and Schedule 1 to this Law specify the subject matter for 30
Rules. 31
(2) The AEMC must not make a Rule without a request under subsection 32
(1) unless-- 33
(a) it considers the Rule corrects a minor error in the Rules; or 34
(b) it considers the Rule involves a non-material change to the Rules; 35
or 36
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(c) the Rule is in respect of any matter that is prescribed by the 1
Regulations as a matter on which it may make a Rule on its own 2
initiative. 3
296 AEMC may make more preferable Rule in certain cases 4
The AEMC may make a Rule that is different (including materially 5
different) from a market initiated proposed Rule (a more preferable 6
Rule) if the AEMC is satisfied that, having regard to the issue or issues 7
that were raised by the market initiated proposed Rule (to which the 8
more preferable Rule relates), the more preferable Rule will or is likely 9
to better contribute to the achievement of the national gas objective. 10
297 AEMC may make Rules that are consequential to a Rule request 11
(1) Despite section 295(2), the AEMC may, having regard to a request to 12
make a Rule under section 295(1), make a Rule that is necessary or 13
consequential to the Rule that is to be made on that request. 14
(2) For the purposes of this Chapter, the AEMC must treat a Rule it may 15
make under subsection (1) as if it were part of the Rule to be made on 16
that request. 17
298 Content of requests for a Rule 18
A request for the making of a Rule-- 19
(a) must contain the information prescribed by the Regulations; and 20
(b) must, subject to section 299, be accompanied by the fee 21
prescribed by the Regulations (if any); and 22
(c) may be accompanied by a draft of the Rule to be made. 23
299 Waiver of fee for Rule requests 24
The AEMC may waive the payment of any fee prescribed by the 25
Regulations for the purposes of section 298. 26
300 Consolidation of 2 or more Rule requests 27
(1) If the AEMC considers it necessary or desirable that 2 or more requests 28
for the making of a Rule should be dealt with together, the AEMC 29
may-- 30
(a) treat those requests as 1 request for the purposes of this Chapter 31
(a consolidated Rule request); or 32
(b) treat any later request as a submission in relation to the earliest 33
Rule request. 34
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National Gas Law Note
(2) For the purposes of this Chapter, the AEMC may treat a consolidated 1
Rule request as being received by it on the day it receives either the first 2
or last of the Rule requests forming part of the consolidated Rule 3
request. 4
301 Initial consideration of request for Rule 5
(1) Subject to this Chapter, as soon as practicable after receiving a request 6
for the making of a Rule (an active request), the AEMC must consider 7
whether-- 8
(a) the active request appears to-- 9
(i) contain the information prescribed by the Regulations; and 10
(ii) not be misconceived or lacking in substance; and 11
(b) the subject matter of the active request appears to be for or with 12
respect to a matter in respect of which the AEMC may make a 13
Rule under this Law; and 14
Note. Section 74 and Schedule 1 to this Law specify the subject matter 15
for Rules. 16
(c) the subject matter of the active request appears to relate to the 17
subject matter of-- 18
(i) a Rule made, or a request for the making of a Rule under 19
section 295(1) not proceeded with, in the 12 months 20
immediately before the date of receipt of the active 21
request; or 22
(ii) another request for the making of a Rule under section 23
295(1) in respect of which the AEMC is taking action 24
under this Part. 25
(2) If the AEMC considers that, having regard to the matters set out in 26
subsection (1), it should not take any action under this Part in respect of 27
the active request, the AEMC must make a decision to that effect and 28
inform the person or body, in writing, that requested the Rule of that 29
decision. 30
(3) Despite subsection (1) or (2), the AEMC may make a decision to the 31
effect that it should not take any action under this Part in respect of the 32
active request if the person or body that made the active request has not 33
complied with a notice in accordance with section 302. 34
(4) In making a decision under subsection (3), the AEMC must have regard 35
to any representation it receives under section 302(4). 36
(5) A decision under subsection (2) or (3) must-- 37
(a) set out the reasons for the decision; and 38
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Note National Gas Law
(b) be given to the person or body that made the active request 1
without delay; and 2
(c) in the case where the decision was made only because of the 3
matters set out in subsection (1)(c)--be published. 4
(6) Subject to this Chapter, if the AEMC considers that, having regard to 5
the matters set out in subsection (1), it should take action under this Part 6
in respect of an active request the AEMC must publish notice of that 7
active request in accordance with section 303. 8
302 AEMC may request further information from Rule proponent in certain 9
cases 10
(1) This section applies if the AEMC-- 11
(a) receives a request for the making of a Rule under section 295(1); 12
and 13
(b) considers, having regard to the nature and content of the request, 14
that further information is required from the person or body that 15
has made the request to assist it to understand the request's 16
purpose or content. 17
(2) The AEMC may, by notice in writing, request the person or body that 18
made the request under section 295(1) to provide the AEMC further