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Queensland
National Gas (Queensland)
Bill 2008
Queensland
National Gas (Queensland) Bill 2008
Contents
Page
Part 1 Preliminary
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4 Act binds the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5 Application to coastal waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6 Extra-territorial operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Part 2 National Gas (Queensland) Law and National Gas
(Queensland) Regulations
7 Application in Queensland of National Gas Law . . . . . . . . . . . . . 6
8 Application in Queensland of regulations under National Gas
Law .......................................... 6
9 Interpretation of expressions in National Gas (Queensland) Law
and National Gas (Queensland) Regulations. . . . . . . . . . . . . . . . 7
Part 3 Cross vesting of powers
10 Conferral of powers on Commonwealth Minister and
Commonwealth bodies to act in this State . . . . . . . . . . . . . . . . . . 8
11 Conferral of powers on Ministers of participating States and
Territories to act in this State . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
12 Conferral of functions or powers on State Minister. . . . . . . . . . . . 8
Part 4 Miscellaneous
13 Exemption from taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
14 Actions in relation to cross boundary pipelines . . . . . . . . . . . . . . 9
15 Conferral of functions and powers on Commonwealth bodies . . . 10
16 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Part 5 Repeal and transitional provisions
Division 1 Repeal of Gas Pipelines Access (Queensland) Act 1998
17 Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
National Gas (Queensland) Bill 2008
Contents
Division 2 Transitional provisions
18 Transitional regulation-making power for particular pipelines. . . . 11
19 References to Gas Pipelines Access (Queensland) Law . . . . . . . 13
20 References to Gas Pipelines Access (Queensland) Regulations. 14
Part 6 Amendment of this Act when Offshore Petroleum Act 2006
(Cwlth) commences
21 Act amended in pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
22 Amendment of s 9 (Interpretation of expressions in National Gas
(Queensland) Law and National Gas (Queensland) Regulations) 14
Part 7 Amendment of Other Acts
Division 1 Amendment of Acts Interpretation Act 1954
23 Act amended in div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
24 Amendment of s 36 (Meaning of commonly used words and
expressions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Division 2 Amendment of Gas Supply Act 2003
25 Act amended in div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
26 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 15
Division 3 Amendment of Petroleum (Submerged Lands) Act 1982
27 Act amended in div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
28 Amendment of s 6A (Relationship of Act to Gas Pipelines
Access (Queensland) Law) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Division 4 Amendment of Duties Act 2001
29 Act amended in div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
30 Amendment of s 428 (Exemption--particular instruments and
transactions under Gas Pipelines Access (Queensland) Act) . . . 16
Division 5 Amendment of Federal Courts (State Jurisdiction) Act 1999
31 Act amended in div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
32 Amendment of s 3 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Division 6 Amendment of Petroleum Act 1923
33 Act amended in div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
34 Amendment of s 7 (Application of Act) . . . . . . . . . . . . . . . . . . . . . 17
Division 7 Amendment of Energy Ombudsman Act 2006
35 Act amended in div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
36 Amendment of s 19 (Restrictions on disputes that can be
referred) ...................................... 18
Attachment to the National Gas (Queensland) Act 2008 . . . . 19
Page 2
2008
A Bill
for
An Act to establish a framework to enable third parties to gain
access to certain natural gas pipeline services, to repeal the
Gas Pipelines Access (Queensland) Act 1998, and to make
particular amendments to Acts as set out in parts 6 and 7
National Gas (Queensland) Bill 2008
Part 1 Preliminary
[s 1]
The Parliament of Queensland enacts-- 1
Part 1 Preliminary 2
1 Short title 3
This Act may be cited as the National Gas (Queensland) Act 4
2008. 5
2 Commencement 6
(1) This Act, other than part 6, commences on a day to be fixed 7
by proclamation. 8
(2) Part 6 commences when the Offshore Petroleum Act 2006 9
(Cwlth), section 7 commences. 10
3 Interpretation 11
(1) In this Act-- 12
National Gas (Queensland) Law means the provisions 13
applying because of section 7. 14
National Gas (Queensland) Regulations means the 15
provisions applying because of section 8. 16
South Australian Act means the National Gas (South 17
Australia) Act 2008 (SA). 18
(2) Words and expressions used in the National Gas 19
(Queensland) Law and in this Act have the same respective 20
meanings in this Act as they have in that Law. 21
(3) This section does not apply to the extent that the context or 22
subject matter otherwise indicates or requires. 23
Page 4
National Gas (Queensland) Bill 2008
Part 1 Preliminary
[s 4]
4 Act binds the State 1
This Act, the National Gas (Queensland) Law and the 2
National Gas (Queensland) Regulations bind the State and, to 3
the extent the legislative power of the Parliament permits, the 4
Commonwealth and the other States. 5
5 Application to coastal waters 6
(1) This Act, the National Gas (Queensland) Law and the 7
National Gas (Queensland) Regulations apply in the coastal 8
waters of this State as if the coastal waters were within the 9
limits of the State. 10
(2) In this section-- 11
adjacent area in respect of the State means the adjacent area 12
of this jurisdiction under the National Gas (Queensland) Law 13
(as defined by section 9(1) of this Act). 14
coastal waters, in relation to this State, means any sea that is 15
on the landward side of the adjacent area in respect of the 16
State but is not within the limits of the State. 17
6 Extra-territorial operation 18
It is the intention of the Parliament that this Act, the National 19
Gas (Queensland) Law and the National Gas (Queensland) 20
Regulations should, so far as possible, operate to the full 21
extent of the extra-territorial legislative power of the State. 22
Page 5
National Gas (Queensland) Bill 2008
Part 2 National Gas (Queensland) Law and National Gas (Queensland) Regulations
[s 7]
Part 2 National Gas (Queensland) Law 1
and National Gas (Queensland) 2
Regulations 3
7 Application in Queensland of National Gas Law 4
(1) The National Gas Law set out in the Schedule to the South 5
Australian Act, as in force for the time being (the National 6
Gas Law)-- 7
(a) applies as a law of Queensland; and 8
(b) as so applying may be referred to as the National Gas 9
(Queensland) Law. 10
(2) Attached to this Act is a copy of the Bill for the South 11
Australian Act. 12
(3) The attachment is not part of this Act. 13
(4) In any reprint of this Act, the attachment must be revised so 14
that it is a copy of the South Australian Act most recently 15
published under the Legislation Revision and Publication Act 16
2002 (SA). 17
(5) Subsections (2) to (4) do not affect the operation of subsection 18
(1) or of section 8. 19
8 Application in Queensland of regulations under National 20
Gas Law 21
The regulations in force for the time being under part 3 of the 22
South Australian Act-- 23
(a) apply as regulations in force for the purposes of the 24
National Gas (Queensland) Law; and 25
(b) as so applying may be referred to as the National Gas 26
(Queensland) Regulations. 27
Page 6
National Gas (Queensland) Bill 2008
Part 2 National Gas (Queensland) Law and National Gas (Queensland) Regulations
[s 9]
9 Interpretation of expressions in National Gas 1
(Queensland) Law and National Gas (Queensland) 2
Regulations 3
(1) In the National Gas (Queensland) Law and the National Gas 4
(Queensland) Regulations-- 5
adjacent area of another participating jurisdiction means the 6
area that is identified in the Petroleum (Submerged Lands) Act 7
1967 (Cwlth), section 5A as being the adjacent area in respect 8
of a State (other than this State) or in respect of the Northern 9
Territory. 10
adjacent area of this jurisdiction means the area that is 11
identified in the Petroleum (Submerged Lands) Act 1967 12
(Cwlth), section 5A as being the adjacent area in respect of 13
this State. 14
Court means the Supreme Court of Queensland. 15
designated Minister means the Commonwealth Minister. 16
Legislature of this jurisdiction means the Parliament of 17
Queensland. 18
National Gas Law or this Law means the National Gas 19
(Queensland) Law. 20
this jurisdiction means the State of Queensland. 21
(2) The Acts Interpretation Act 1915 (SA) and other Acts of 22
South Australia do not apply to-- 23
(a) the National Gas Law set out in the Schedule to the 24
South Australian Act in its application as a law of 25
Queensland; or 26
(b) the regulations in force for the time being under Part 3 27
of the South Australian Act in their application as 28
regulations in force for the purposes of the National Gas 29
(Queensland) Law. 30
Page 7
National Gas (Queensland) Bill 2008
Part 3 Cross vesting of powers
[s 10]
Part 3 Cross vesting of powers 1
10 Conferral of powers on Commonwealth Minister and 2
Commonwealth bodies to act in this State 3
(1) The Commonwealth Minister and the Commonwealth bodies 4
have power to do acts in or in relation to this State in the 5
performance or exercise of a function or power expressed to 6
be conferred on them respectively by the national gas 7
legislation of another participating jurisdiction. 8
(2) In this section-- 9
Commonwealth bodies means any of the following-- 10
(a) AER; 11
(b) NCC; 12
(c) the Tribunal. 13
11 Conferral of powers on Ministers of participating States 14
and Territories to act in this State 15
The Minister of a participating jurisdiction has power to do 16
acts in or in relation to this State in the performance or 17
exercise of a function or power expressed to be conferred on 18
the Minister by the national gas legislation of another 19
participating jurisdiction. 20
12 Conferral of functions or powers on State Minister 21
If the national gas legislation of another participating 22
jurisdiction confers a function or power on the Minister, the 23
Minister-- 24
(a) may perform that function or exercise that power; and 25
(b) may do all things necessary or convenient to be done in 26
connection with the performance or exercise of that 27
function or power. 28
Page 8
National Gas (Queensland) Bill 2008
Part 4 Miscellaneous
[s 13]
Part 4 Miscellaneous 1
13 Exemption from taxes 2
(1) Any tax, other than a duty under the Duties Act 2001, imposed 3
by or under a law of this State is not payable in relation to-- 4
(a) an exempt matter; or 5
(b) anything done (including, for example, a transaction 6
entered into or an instrument or document made, 7
executed, lodged or given) because of, or arising out of, 8
an exempt matter. 9
(2) In this section-- 10
exempt matter means a transfer of assets or liabilities that is 11
made for the purpose of ensuring that a person does not carry 12
on a business of producing, purchasing or selling natural gas 13
or processable gas in breach of any ring fencing requirements 14
of the national gas legislation or for the purpose of the 15
separation of certain businesses or business activities from 16
other businesses or business activities of a person as required 17
by an AER ring fencing determination. 18
14 Actions in relation to cross boundary pipelines 19
(1) If a pipeline is a cross boundary pipeline, any action taken 20
under the national gas legislation of a participating 21
jurisdiction in whose jurisdictional area a part of the pipeline 22
is situated-- 23
(a) by, or in relation to, a relevant Minister; or 24
(b) by the Court within the meaning of that legislation in 25
relation to action taken by, or in relation to, a relevant 26
Minister; 27
is taken also to be taken under the national gas legislation of 28
each participating jurisdiction in whose jurisdictional area a 29
part of the pipeline is situated (that other legislation)-- 30
Page 9
National Gas (Queensland) Bill 2008
Part 4 Miscellaneous
[s 15]
(c) by, or in relation to, a relevant Minister within the 1
meaning of that other legislation; or 2
(d) by the Court within the meaning of that other 3
legislation; 4
as the case requires. 5
(2) Despite subsection (1), no proceeding for judicial review or 6
for a declaration, injunction, writ, order or remedy may be 7
brought before the Court to challenge or question any action, 8
or purported action, of a relevant Minister taken, or 9
purportedly taken, in relation to a cross boundary distribution 10
pipeline unless this jurisdiction has been determined to be the 11
participating jurisdiction with which the cross boundary 12
distribution pipeline is most closely connected. 13
(3) A reference in this section-- 14
(a) to an action that is taken includes a reference to-- 15
(i) a decision or determination that is made; or 16
(ii) an omission that is made; and 17
(b) to a purported action that is purportedly taken includes a 18
reference to a purported decision or determination that 19
is purportedly made. 20
(4) In this section-- 21
cross boundary pipeline means-- 22
(a) a cross boundary transmission pipeline; or 23
(b) a cross boundary distribution pipeline. 24
15 Conferral of functions and powers on Commonwealth 25
bodies 26
(1) Clause 2 of schedule 2 to the National Gas (Queensland) Law 27
has effect in relation to the operation of any provision of this 28
Act, or any regulation forming part of the National Gas 29
(Queensland) Regulations, as if the provision or regulation 30
formed part of the National Gas (Queensland) Law. 31
Page 10
National Gas (Queensland) Bill 2008
Part 5 Repeal and transitional provisions
[s 16]
(2) Subsection (1) does not limit the effect that a provision or 1
regulation would validly have apart from the subsection. 2
16 Regulation-making power 3
The Governor in Council may make regulations under this 4
Act. 5
Part 5 Repeal and transitional 6
provisions 7
Division 1 Repeal of Gas Pipelines Access 8
(Queensland) Act 1998 9
17 Repeal 10
The Gas Pipelines Access (Queensland) Act 1998, No. 28 is 11
repealed. 12
Division 2 Transitional provisions 13
18 Transitional regulation-making power for particular 14
pipelines 15
(1) A regulation (a transitional regulation) may make provision 16
of a saving or transitional nature for which it is necessary to 17
make provision to allow or facilitate the change from the 18
operation of the repealed Act to the operation of this Act in 19
relation to a transition pipeline. 20
(2) Without limiting subsection (1), a transitional regulation may 21
for example provide for any of the following-- 22
Page 11
National Gas (Queensland) Bill 2008
Part 5 Repeal and transitional provisions
[s 18]
(a) whether, and to what extent, an approved tariff 1
arrangement for a transition pipeline may be taken to 2
continue to apply to the pipeline; 3
(b) whether, and to what extent, a transition pipeline is 4
taken to be a covered pipeline or a pipeline that is not a 5
covered pipeline; 6
(c) whether an application may be made for a coverage 7
determination in relation to a transition pipeline that, 8
under the transitional regulation, is taken not to be a 9
covered pipeline; 10
(d) whether a transition pipeline that, under the transitional 11
regulation, is taken to be a covered pipeline, is taken to 12
be a distribution pipeline or a transmission pipeline; 13
(e) whether the services provided by means of a transition 14
pipeline are taken to be the subject of a light regulation 15
determination; 16
(f) the terms of any limited access arrangement that is taken 17
to apply in relation to services that are taken to be the 18
subject of a light regulation determination; 19
(g) whether services that are taken to be the subject of a 20
light regulation determination can be made the subject 21
of a full access arrangement. 22
(3) A transitional regulation may be made to have effect in 23
relation to a transition pipeline only for the period during 24
which the approved tariff arrangement for the pipeline would, 25
other than for the repeal of the repealed Act, have been in 26
force. 27
(4) A transitional regulation may have retrospective operation to a 28
day not earlier than the commencement. 29
(5) A transitional regulation must declare it is a transitional 30
regulation. 31
(6) A transitional regulation expires 3 years after the day the 32
regulation commences. 33
Page 12
National Gas (Queensland) Bill 2008
Part 5 Repeal and transitional provisions
[s 19]
(7) The Acts Interpretation Act 1954, section 20A, as applied by 1
the Statutory Instruments Act 1992, section 14, applies in 2
relation to the expiry. 3
(8) In this section-- 4
approved tariff arrangement, for a transition pipeline, means 5
the tariff arrangement approved for the pipeline, under the 6
repealed Gas Pipelines Access (Queensland) Act 1998, 7
section 58(2). 8
commencement means the commencement of this section. 9
repealed Act means the repealed Gas Pipelines Access 10
(Queensland) Act 1998, and includes the repealed Gas 11
Pipelines Access (Queensland) Law and the repealed Gas 12
Pipelines Access (Queensland) Regulations. 13
this Act includes the National Gas (Queensland) Law and the 14
National Gas (Queensland) Regulations. 15
transition pipeline means a pipeline described in the 16
following table-- 17
Pipeline Common name of pipeline Where pipeline
licence starts and ends
number
24 South West Queensland Ballera to
Pipeline Wallumbilla
30 Queensland Gas Pipeline Wallumbilla to
Rockhampton
41 Carpentaria Gas Pipeline Ballera to Mt Isa
19 References to Gas Pipelines Access (Queensland) Law 18
If a law or a document refers to the Gas Pipelines Access 19
(Queensland) Law, if the context permits, the reference is 20
taken to be a reference to the National Gas (Queensland) Law. 21
Page 13
National Gas (Queensland) Bill 2008
Part 6 Amendment of this Act when Offshore Petroleum Act 2006 (Cwlth) commences
[s 20]
20 References to Gas Pipelines Access (Queensland) 1
Regulations 2
If a law or a document refers to the Gas Pipelines Access 3
(Queensland) Regulations, if the context permits, the 4
reference is taken to be a reference to the National Gas 5
(Queensland) Regulations. 6
Part 6 Amendment of this Act when 7
Offshore Petroleum Act 2006 8
(Cwlth) commences 9
21 Act amended in pt 6 10
This part amends this Act. 11
22 Amendment of s 9 (Interpretation of expressions in 12
National Gas (Queensland) Law and National Gas 13
(Queensland) Regulations) 14
(1) Section 9(1), definitions adjacent area of another 15
participating jurisdiction and adjacent area of this 16
jurisdiction-- 17
omit. 18
(2) Section 9(1)-- 19
insert-- 20
`adjacent area of another participating jurisdiction means 21
the offshore area of a State (other than this State) or the 22
Northern Territory within the meaning given in the Offshore 23
Petroleum Act 2006 (Cwlth), section 7. 24
adjacent area of this jurisdiction means the offshore area of 25
the State within the meaning of the Offshore Petroleum Act 26
2006 (Cwlth), section 7.'. 27
Page 14
National Gas (Queensland) Bill 2008
Part 7 Amendment of Other Acts
[s 23]
Part 7 Amendment of Other Acts 1
Division 1 Amendment of Acts Interpretation 2
Act 1954 3
23 Act amended in div 1 4
This division amends the Acts Interpretation Act 1954. 5
24 Amendment of s 36 (Meaning of commonly used words 6
and expressions) 7
(1) Section 36, definitions Gas Pipelines Access (Queensland) 8
Law and Gas Pipelines Access (Queensland) Regulations-- 9
omit. 10
(2) Section 36-- 11
insert-- 12
`National Gas (Queensland) Law means the provisions 13
applying because of the National Gas Law (Queensland) Act 14
2008, section 7, and includes the National Gas (Queensland) 15
Regulations. 16
National Gas (Queensland) Regulations means the 17
provisions applying because of the National Gas Law 18
(Queensland) Act 2008, section 8.'. 19
Division 2 Amendment of Gas Supply Act 2003 20
25 Act amended in div 2 21
This division amends the Gas Supply Act 2003. 22
26 Amendment of sch 2 (Dictionary) 23
Schedule 2, definition Gas Pipelines Access Law-- 24
Page 15
National Gas (Queensland) Bill 2008
Part 7 Amendment of Other Acts
[s 27]
omit, insert-- 1
`Gas Pipelines Access Law means all of the following-- 2
(a) the National Gas (Queensland) Act 2008; 3
(b) the National Gas (Queensland) Law; 4
(c) the National Gas (Queensland) Regulations.'. 5
Division 3 Amendment of Petroleum 6
(Submerged Lands) Act 1982 7
27 Act amended in div 3 8
This division amends the Petroleum (Submerged Lands) Act 9
1982. 10
28 Amendment of s 6A (Relationship of Act to Gas Pipelines 11
Access (Queensland) Law) 12
Section 6A, `Gas Pipelines Access (Queensland) Law'-- 13
omit, insert-- 14
`National Gas (Queensland) Law'. 15
Division 4 Amendment of Duties Act 2001 16
29 Act amended in div 4 17
This division amends the Duties Act 2001. 18
30 Amendment of s 428 (Exemption--particular instruments 19
and transactions under Gas Pipelines Access 20
(Queensland) Act) 21
Section 428(a), `Gas Pipelines Access (Queensland) Act 22
1998, section 54'-- 23
Page 16
National Gas (Queensland) Bill 2008
Part 7 Amendment of Other Acts
[s 31]
omit, insert-- 1
`National Gas (Queensland) Act 2008, section 13'. 2
Division 5 Amendment of Federal Courts 3
(State Jurisdiction) Act 1999 4
31 Act amended in div 5 5
This division amends the Federal Courts (State Jurisdiction) 6
Act 1999. 7
32 Amendment of s 3 (Definitions) 8
(1) Section 3, definition relevant State Act, paragraph (e)-- 9
omit. 10
(2) Section 3, definition relevant State Act, paragraphs (f) to (h)-- 11
renumber as paragraphs (e) to (g). 12
Division 6 Amendment of Petroleum Act 1923 13
33 Act amended in div 6 14
This division amends the Petroleum Act 1923. 15
34 Amendment of s 7 (Application of Act) 16
Section 7(3), `Gas Pipelines Access (Queensland) Law'-- 17
omit, insert-- 18
`National Gas (Queensland) Law'. 19
Page 17
National Gas (Queensland) Bill 2008
Part 7 Amendment of Other Acts
[s 35]
Division 7 Amendment of Energy Ombudsman 1
Act 2006 2
35 Act amended in div 7 3
This division amends the Energy Ombudsman Act 2006. 4
36 Amendment of s 19 (Restrictions on disputes that can be 5
referred) 6
Section 19(1)(d)(iii), `Gas Pipelines Access (Queensland) 7
Law'-- 8
omit, insert-- 9
`National Gas (Queensland) Law'. 10
Page 18
National Gas (Queensland) Bill 2008
Attachment to the National Gas (Queensland) 1
Act 2008 2
National Gas (South Australia) Act 2008 3
The attachment to this Act contains the Bill for the National 4
Gas (South Australia) Act 2008. 5
© State of Queensland 2008
Page 19
Advance
South Australia
National Gas (South Australia) Bill 2008
A BILL FOR
An Act to establish a framework to enable third parties to gain access to certain natural gas
pipeline services; to repeal the Gas Pipelines Access (South Australia) Act 1997; to amend
the Australian Energy Market Commission Establishment Act 2004; and for other
purposes.
HA GP 177-A OPC 169 1
National Gas (South Australia) Bill 2008
Contents
Contents
Part 1--Preliminary
1 Short title
2 Commencement
3 Interpretation
4 Crown to be bound
5 Application to coastal waters
6 Extra-territorial operation
Part 2--National Gas (South Australia) Law and National Gas (South
Australia) Regulations
7 Application of National Gas Law
8 Application of regulations under National Gas Law
9 Interpretation of some expressions in National Gas (South Australia) Law and National
Gas (South Australia) Regulations
Part 3--Making of regulations and rules under National Gas Law
10 Definitions
11 General regulation-making power for National Gas Law
12 Specific regulation-making power
13 Making of rules
Part 4--Cross vesting of powers
14 Conferral of powers on Commonwealth Minister and Commonwealth bodies to act in this
State
15 Conferral of powers on Ministers of participating States and Territories to act in this State
16 Conferral of functions or powers on State Minister
Part 5--General
17 Exemption from taxes
18 Actions in relation to cross boundary pipelines
19 Conferral of functions and powers on Commonwealth bodies
Part 6--Repeal of Gas Pipelines Access (South Australia) Act 1997
20 Repeal of Gas Pipelines Access (South Australia) Act 1997
Part 7--Amendment of this Act when Offshore Petroleum Act 2006
commences
21 Amendment of this Act when Offshore Petroleum Act 2006 commences
Part 8--Amendment of Australian Energy Market Commission Establishment
Act 2004
22 Amendment of Australian Energy Market Commission Establishment Act 2004
Schedule--National Gas Law
2 HA GP 177-A OPC 169
National Gas (South Australia) Bill 2008
Contents
Chapter 1--Preliminary
Part 1--Citation and interpretation
1 Citation
2 Definitions
3 Meaning of civil penalty provision
4 Meaning of conduct provision
5 Meaning of prospective user
6 Meaning of regulatory obligation or requirement
7 Meaning of regulatory payment
8 Meaning of service provider
9 Passive owners of scheme pipelines deemed to provide or intend to provide pipeline services
10 Things done by 1 service provider to be treated as being done by all of service provider group
11 Local agents of foreign service providers
12 Commissioning of a pipeline
13 Pipeline classification criterion
14 Jurisdictional determination criteria--cross boundary distribution pipelines
15 Pipeline coverage criteria
16 Form of regulation factors
17 Effect of separate and consolidated access arrangements in certain cases
18 Certain extensions to, or expansion of the capacity of, pipelines to be taken to be part of a covered
pipeline
19 Expansions of and extensions to covered pipeline by which light regulation services are provided
20 Interpretation generally
Part 2--Participating jurisdictions
21 Participating jurisdictions
22 Ministers of participating jurisdictions
Part 3--National gas objective and principles
Division 1--National gas objective
23 National gas objective
Division 2--Revenue and pricing principles
24 Revenue and pricing principles
Division 3--MCE policy principles
25 MCE statements of policy principles
Part 4--Operation and effect of National Gas Rules
26 National Gas Rules to have force of law
Chapter 2--Functions and powers of gas market regulatory entities
Part 1--Functions and powers of the Australian Energy Regulator
Division 1--General
27 Functions and powers of the AER
28 Manner in which AER must perform or exercise AER economic regulatory functions or powers
29 Delegations
30 Confidentiality
Division 2--Search warrants
31 Definitions
32 Authorised person
33 Identity cards
34 Return of identity cards
35 Search warrant
36 Announcement of entry and details of warrant to be given to occupier or other person at premises
37 Immediate entry permitted in certain cases
38 Copies of seized documents
39 Retention and return of seized documents or things
HA GP 177-A OPC 169 3
National Gas (South Australia) Bill 2008
Contents
40 Extension of period of retention of documents or things seized
41 Obstruction of persons authorised to enter
Division 3--General information gathering powers
42 Power to obtain information and documents in relation to performance and exercise of functions
and powers
Division 4--Regulatory information notices and general regulatory information orders
Subdivision 1--Interpretation
43 Definitions
44 Meaning of contributing service
45 Meaning of general regulatory information order
46 Meaning of regulatory information notice
47 Division does not limit operation of information gathering powers under Division 3
Subdivision 2--Serving and making of regulatory information instruments
48 Service and making of regulatory information instrument
49 Additional matters to be considered for related provider regulatory information instruments
50 AER must consult before publishing a general regulatory information order
51 Publication requirements for general regulatory information orders
52 Opportunity to be heard before regulatory information notice is served
Subdivision 3--Form and content of regulatory information instruments
53 Form and content of regulatory information instrument
54 Further provision about the information that may be described in a regulatory information
instrument
55 Further provision about manner in which information must be provided to AER or kept
Subdivision 4--Compliance with regulatory information instruments
56 Compliance with regulatory information notice that is served
57 Compliance with general regulatory information order
58 Exemptions from compliance with general regulatory information order
59 Assumptions where there is non-compliance with regulatory information instrument
Subdivision 5--General
60 Providing to AER false and misleading information
61 Person cannot rely on duty of confidence to avoid compliance with regulatory information
instrument
62 Legal professional privilege not affected
63 Protection against self-incrimination
Division 5--Service provider performance reports
64 Preparation of service provider performance reports
Division 6--Miscellaneous matters
65 Consideration by the AER of submissions or comments made to it under this Law or the Rules
66 Use of information provided under a notice under Division 3 or a regulatory information instrument
67 AER to inform certain persons of decisions not to investigate breaches, institute proceedings or
serve infringement notices
68 AER enforcement guidelines
Part 2--Functions and powers of the Australian Energy Market Commission
Division 1--General
69 Functions and powers of the AEMC
70 Delegations
71 Confidentiality
72 AEMC must have regard to national gas objective
73 AEMC must have regard to MCE statements of policy principles in relation to Rule making and
reviews
Division 2--Rule making functions and powers of the AEMC
74 Subject matter for National Gas Rules
75 Rules relating to MCE or Ministers of participating jurisdictions require MCE consent
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76 AEMC must not make Rules that create criminal offences or impose civil penalties for breaches
77 Documents etc applied, adopted and incorporated by Rules to be publicly available
Division 3--Committees, panels and working groups of the AEMC
78 Establishment of committees, panels and working groups
Division 4--MCE directed reviews
79 MCE directions
80 Terms of reference
81 Notice of MCE directed review
82 Conduct of MCE directed review
Division 5--Other reviews
83 Rule reviews by the AEMC
Division 6--Miscellaneous matters
84 AEMC must publish and make available up to date versions of Rules
85 Fees
86 Immunity from personal liability of AEMC officials
Part 3--Functions and powers of Ministers of participating jurisdictions
87 Functions and powers of Minister of this participating jurisdiction under this Law
88 Functions and powers of Commonwealth Minister under this Law
Part 4--Functions and powers of the NCC
89 Functions and powers of NCC under this Law
90 Confidentiality
Part 5--Functions and powers of Tribunal
91 Functions and powers of Tribunal under this Law
Chapter 3--Coverage and classification of pipelines
Part 1--Coverage of pipelines
Division 1--Coverage determinations
92 Application for recommendation that a pipeline be a covered pipeline
93 Application to be dealt with in accordance with the Rules
94 NCC may defer consideration of application in certain cases
95 NCC coverage recommendation
96 NCC must not make coverage recommendation if tender approval decision becomes irrevocable
97 Principles governing the making of a coverage recommendation
98 Initial classification decision to be made as part of recommendation
99 Relevant Minister's determination on application
100 Principles governing the making of a coverage determination or decision not to do so
101 Operation and effect of coverage determination
Division 2--Coverage revocation determinations
102 Application for a determination that a pipeline no longer be a covered pipeline
103 Application to be dealt with in accordance with the Rules
104 NCC coverage revocation recommendation
105 Principles governing the making of a coverage revocation recommendation
106 Relevant Minister's determination on application
107 Principles governing the making of a coverage revocation determination or decision not to do so
108 Operation and effect of coverage revocation determination
Part 2--Light regulation of covered pipeline services
Division 1--Making of light regulation determinations
Subdivision 1--Decisions when pipeline is not a covered pipeline
109 Application of Subdivision
110 NCC's decision on light regulation of pipeline services
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Subdivision 2--Decisions when pipeline is a covered pipeline
111 Application of Subdivision
112 Application
113 Application to be dealt with in accordance with the Rules
114 NCC's decision on light regulation of pipeline services
Subdivision 3--Operation and effect of light regulation determinations
115 When light regulation determinations take effect
116 Submission of limited access arrangement for light regulation services
Division 2--Revocation of light regulation determinations
Subdivision 1--On advice from service providers
117 Advice by service provider that light regulation services should cease to be light regulation services
Subdivision 2--On application by persons other than service providers
118 Application (other than by service provider) for revocation of light regulation determinations
119 Decisions on applications made around time of applications for coverage revocation determinations
120 NCC decision on application where no application for a coverage revocation recommendation
121 Operation and effect of decision of NCC under this Division
Division 3--Principles governing light regulation determinations
122 Principles governing the making or revoking of light regulation determinations
Division 4--Revocation if coverage determination not made
123 Light regulation determination revoked if coverage determination not made
Division 5--Effect of pipeline ceasing to be covered pipeline
124 Light regulation services cease to be such services on cessation of coverage of pipeline
Division 6--AER reviews into designated pipelines
125 AER reviews
Part 3--Coverage of pipelines the subject of tender process
126 Tender approval pipelines deemed to be covered pipelines
Part 4--Coverage following approval of voluntary access arrangement
127 Certain pipelines become covered pipelines on approval of voluntary access arrangement
Part 5--Reclassification of pipelines
128 Service provider may apply for reclassification of pipeline
129 Reclassification decision
130 Effect of reclassification decision
Chapter 4--General requirements for provision of covered pipeline services
Part 1--General duties for provision of pipeline services by covered pipelines
131 Service provider must be legal entity of a specified kind to provide pipeline services by covered
pipeline
132 Submission of full access arrangement or revisions to applicable full access arrangements
133 Preventing or hindering access
134 Supply and haulage of natural gas
135 Covered pipeline service provider must comply with queuing requirements
136 Covered pipeline service provider providing light regulation services must not price discriminate
Part 2--Structural and operational separation requirements (ring fencing)
Division 1--Interpretation
137 Definitions
138 Meaning of marketing staff
Division 2--Minimum ring fencing requirements
139 Carrying on of related businesses prohibited
140 Marketing staff and the taking part in related businesses
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141 Accounts that must be prepared, maintained and kept
Division 3--Additional ring fencing requirements
142 Division does not limit operation of Division 2
143 AER ring fencing determinations
144 AER to have regard to likely compliance costs of additional ring fencing requirements
145 Types of ring fencing requirements that may be specified in an AER ring fencing determination
Division 4--AER ring fencing exemptions
146 Exemptions from minimum ring fencing requirements
Division 5--Associate contracts
147 Service provider must not enter into or give effect to associate contracts that have anti-competitive
effect
148 Service provider must not enter into or give effect to associate contracts inconsistent with
competitive parity rule
Chapter 5--Greenfields pipeline incentives
Part 1--Interpretation
149 Definitions
150 International pipeline to be a transmission pipeline for purposes of Chapter
Part 2--15-year no-coverage determinations
151 Application for 15-year no-coverage determination for proposed pipeline
152 Application to be dealt with in accordance with the Rules
153 No-coverage recommendation
154 Principles governing the making of a no-coverage recommendation
155 Initial classification decision to be made as part of recommendation
156 Relevant Minister's determination on application
157 Principles governing the making of a 15-year no-coverage determination or decision not to do so
158 Effect of 15-year no-coverage determination
159 Consequences of Minister deciding against making 15-year no-coverage determination for
international pipeline
Part 3--Price regulation exemptions
Division 1--Application for price regulation exemption
160 Application for price regulation exemption
Division 2--Recommendations by NCC
161 Application to be dealt with in accordance with the Rules
162 NCC's recommendation
163 General principle governing NCC's recommendation
Division 3--Making and effect of price regulation exemption
164 Making of price regulation exemption
165 Principles governing the making of a price regulation exemption
166 Conditions applying to a price regulation exemption
167 Effect of price regulation exemption
Division 4--Limited access arrangements
168 Limited access arrangements for pipeline services provided by international pipeline to which a
price regulation exemption applies
Division 5--Other matters
169 Other obligations to which service provider is subject
170 Service provider must not price discriminate in providing international pipeline services
Part 4--Extended or modified application of greenfields pipeline incentive
171 Requirement for conformity between pipeline description and pipeline as constructed
172 Power of relevant Minister to amend pipeline description
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Part 5--Early termination of greenfields pipeline incentive
173 Greenfields pipeline incentive may lapse
174 Revocation by consent
175 Revocation for misrepresentation
176 Revocation for breach of condition to which a price regulation exemption is subject
177 Exhaustive provision for termination of greenfields pipeline incentive
Chapter 6--Access disputes
Part 1--Interpretation and application
178 Definitions
179 Chapter does not limit how disputes about access may be raised or dealt with
180 No price or revenue regulation for access disputes relating to international pipeline services
Part 2--Notification of access dispute
181 Notification of access dispute
182 Withdrawal of notification
183 Parties to an access dispute
Part 3--Access determinations
184 Determination of access dispute
185 Dispute resolution body may require parties to mediate, conciliate or engage in an alternative
dispute resolution process
186 Dispute resolution body may terminate access dispute in certain cases
187 No access determination if dispute resolution body considers there is genuine competition
188 Restrictions on access determinations
189 Access determination must give effect to applicable access arrangement
190 Access determinations and past contributions of capital to fund installations or the construction of
new facilities
191 Rules may allow determination that varies applicable access arrangement for installation of a new
facility
192 Access determinations need not require the provision of a pipeline service
193 Content of access determinations
Part 4--Variation of access determinations
194 Variation of access determination
Part 5--Compliance with access determinations
195 Compliance with access determination
Part 6--Access dispute hearing procedure
196 Hearing to be in private
197 Right to representation
198 Procedure of dispute resolution body
199 Particular powers of dispute resolution body in a hearing
200 Disclosure of information
201 Power to take evidence on oath or affirmation
202 Failing to attend as a witness
203 Failing to answer questions etc
204 Intimidation etc
205 Party may request dispute resolution body to treat material as confidential
206 Costs
207 Outstanding costs are a debt due to party awarded the costs
Part 7--Joint access dispute hearings
208 Definition
209 Joint dispute hearing
210 Consulting the parties
211 Constitution and procedure of dispute resolution body for joint dispute hearings
212 Record of proceedings etc
Part 8--Miscellaneous matters
213 Correction of access determinations for clerical mistakes etc
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214 Reservation of capacity during an access dispute
215 Subsequent service providers bound by access determinations
216 Regulations about the costs to be paid by parties to access dispute
Chapter 7--The Natural Gas Services Bulletin Board
Part 1--The Bulletin Board Operator
217 The Bulletin Board operator
218 Obligation to establish and maintain the Natural Gas Services Bulletin Board
219 Other functions of the Bulletin Board operator
220 Powers of the Bulletin Board operator
221 Immunity of the Bulletin Board operator
222 Fees for services provided
Part 2--Bulletin Board information
223 Obligation to give information to the Bulletin Board operator
224 Person cannot rely on duty of confidence to avoid compliance with obligation
225 Giving to Bulletin Board operator false and misleading information
226 Immunity of persons giving information to the Bulletin Board operator
Part 3--Protection of information
227 Protection of information by the Bulletin Board operator
228 Protection of information by employees etc of the Bulletin Board operator
Chapter 8--Proceedings under the National Gas Law
Part 1--Proceedings generally
229 Instituting civil proceedings under this Law
230 Time limit within which proceedings may be instituted
Part 2--Proceedings for breaches of this Law, Regulations or the Rules
231 AER proceedings for breaches of this Law, Regulations or the Rules that are not offences
232 Proceedings for declaration that a person is in breach of a conduct provision
233 Actions for damages by persons for breach of conduct provision
Part 3--Matters relating to breaches of this Law, the Regulations or the Rules
234 Matters for which there must be regard in determining amount of civil penalty
235 Breach of a civil penalty provision is not an offence
236 Breaches of civil penalty provisions involving continuing failure
237 Conduct in breach of more than 1 civil penalty provision
238 Persons involved in breach of civil penalty provision or conduct provision
239 Attempt to breach a civil penalty provision
240 Civil penalties payable to the Commonwealth
Part 4--Judicial review of decisions under this Law, the Regulations and the Rules
241 Definition
242 Applications for judicial review of decisions of the AEMC
243 Applications for judicial review of decisions of the Bulletin Board operator
Part 5--Merits review and other non-judicial review
Division 1--Interpretation
244 Definitions
Division 2--Merits review for reviewable regulatory decisions
245 Applications for review
246 Grounds for review
247 By when an application must be made
248 Tribunal must not grant leave unless serious issue to be heard and determined
249 Leave must be refused if application is about an error relating to revenue amounts below specified
threshold
250 Tribunal must refuse to grant leave if submission not made or is made late
251 Tribunal may refuse to grant leave to service provider in certain cases
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252 Effect of application on operation of reviewable regulatory decisions
253 Intervention by others in a review without leave
254 Leave for reviewable regulatory decision process participants
255 Leave for user or consumer intervener
256 Interveners may raise new grounds for review
257 Parties to a review under this Division
258 Matters that parties to a review may and may not raise in a review
259 Tribunal must make determination
260 Target time limit for Tribunal for making a determination under this Division
261 Matters to be considered by Tribunal in making determination
262 Assistance from NCC in certain cases
Division 3--Tribunal review of AER information disclosure decisions under section 329
263 Application for review
264 Exclusion of public in certain cases
265 Determination in the review
266 Tribunal must be taken to have affirmed decision if decision not made within time
267 Assistance from the AER in certain cases
Division 4--General
268 Costs in a review
269 Amount of costs
270 Review of Part
Part 6--Enforcement of access determinations
271 Enforcement of access determinations
272 Consent injunctions
273 Interim injunctions
274 Factors relevant to granting a restraining injunction
275 Factors relevant to granting a mandatory injunction
276 Discharge or variation of injunction or other order
Part 7--Infringement notices
277 Power to serve notice
278 Form of notice
279 Infringement penalty
280 AER cannot institute proceedings while infringement notice on foot
281 Late payment of penalty
282 Withdrawal of notice
283 Refund of infringement penalty
284 Payment expiates breach of civil penalty provision
285 Payment not to have certain consequences
286 Conduct in breach of more than 1 civil penalty provision
Part 8--Further provision for corporate liability for breaches of this Law etc
287 Definition
288 Offences and breaches by corporations
289 Corporations also in breach if officers and employees are in breach
Chapter 9--The making of the National Gas Rules
Part 1--General
Division 1--Interpretation
290 Definitions
Division 2--Rule making tests
291 Application of national gas objective
292 AEMC must take into account form of regulation factors in certain cases
293 AEMC must take into account revenue and pricing principles in certain cases
Part 2--Initial National Gas Rules
294 South Australian Minister to make initial National Gas Rules
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Part 3--Procedure for the making of a Rule by the AEMC
295 Initiation of making of a Rule
296 AEMC may make more preferable Rule in certain cases
297 AEMC may make Rules that are consequential to a Rule request
298 Content of requests for a Rule
299 Waiver of fee for Rule requests
300 Consolidation of 2 or more Rule requests
301 Initial consideration of request for Rule
302 AEMC may request further information from Rule proponent in certain cases
303 Notice of proposed Rule
304 Publication of non-controversial or urgent final Rule determination
305 "Fast track" Rules where previous public consultation by gas market regulatory body or an AEMC
review
306 Right to make written submissions and comments
307 AEMC may hold public hearings before draft Rule determination
308 Draft Rule determination
309 Right to make written submissions and comments in relation to draft Rule determination
310 Pre-final Rule determination hearing may be held
311 Final Rule determination
312 Further draft Rule determination may be made where proposed Rule is a proposed more preferable
Rule
313 Making of Rule
314 Operation and commencement of Rule
315 Rule that is made to be published on website and made available to the public
316 Evidence of the National Gas Rules
Part 4--Miscellaneous provisions relating to rule making by the AEMC
317 Extension of periods of time in Rule making procedure
318 AEMC may extend period of time for making of final Rule determination for further consultation
319 AEMC may publish written submissions and comments unless confidential
320 AEMC must publicly report on Rules not made within 12 months of public notification of requests
Chapter 10--General
Part 1--Provisions relating to applicable access arrangements
321 Protection of certain pre-existing contractual rights
322 Service provider may enter into agreement for access different from applicable access arrangement
323 Applicable access arrangements continue to apply regardless of who provides pipeline service
Part 2--Handling of confidential information
Division 1--Disclosure of confidential information held by AER
324 Authorised disclosure of information given to the AER in confidence
325 Disclosure with prior written consent is authorised
326 Disclosure for purposes of court and tribunal proceedings and to accord natural justice
327 Disclosure of information given to the AER with confidential information omitted
328 Disclosure of information given in confidence does not identify anyone
329 Disclosure of confidential information authorised if detriment does not outweigh public benefit
Division 2--Disclosure of confidential information held by relevant Ministers, NCC and
AEMC
330 Definitions
331 Confidentiality of information received for scheme procedure purpose and for making of scheme
decision
Part 3--Miscellaneous
332 Failure to make a decision under this Law or the Rules within time does not invalidate the decision
333 Withdrawal of applications relating to coverage or reclassification
334 Notification of Ministers of participating jurisdictions of receipt of application
335 Relevant Minister may request NCC to give information or assistance
336 Savings and transitionals
Schedule 1--Subject matter for the National Gas Rules
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Schedule 2--Miscellaneous provisions relating to interpretation
Part 1--Preliminary
1 Displacement of Schedule by contrary intention
Part 2--General
2 Law to be construed not to exceed legislative power of Legislature
3 Vacant provision
4 Material that is, and is not, part of Law
5 References to particular Acts and to enactments
6 References taken to be included in Act or Law citation etc
7 Interpretation best achieving Law's purpose
8 Use of extrinsic material in interpretation
9 Compliance with forms
Part 3--Terms and references
10 Definitions
11 Provisions relating to defined terms and gender and number
12 Meaning of may and must etc
13 Words and expressions used in statutory instruments
14 References to Minister
15 Production of records kept in computers etc
16 References to this jurisdiction to be implied
17 References to officers and holders of offices
18 Reference to certain provisions of Law
Part 4--Functions and powers
19 Performance of statutory functions
20 Power to make instrument or decision includes power to amend or repeal
21 Matters for which statutory instruments may make provision
22 Presumption of validity and power to make
23 Appointments may be made by name or office
24 Acting appointments
25 Powers of appointment imply certain incidental powers
26 Delegation
27 Exercise of powers between enactment and commencement
Part 5--Distance and time
28 Matters relating to distance and time
Part 6--Service of documents
29 Service of documents and meaning of service by post etc
30 Meaning of service by post etc
Part 7--Evidentiary matters
Division 1--Publication on websites
31 Definitions
32 Publication of decisions on websites
Division 2--Evidentiary certificates
33 Definitions
34 Evidentiary certificates--AER
35 Evidentiary certificates--AEMC
36 Evidentiary certificates--NCC
37 Evidentiary certificates--relevant Minister and Commonwealth Minister
38 Evidentiary certificates--Bulletin Board operator
Part 8--Commencement of this Law and statutory instruments
39 Time of commencement of this Law or a provision of this Law
40 Time of commencement of a Rule
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Part 9--Effect of repeal, amendment or expiration
41 Time of Law, the Regulations or Rules ceasing to have effect
42 Repealed Law, Regulation or Rule provisions not revived
43 Saving of operation of repealed Law, Regulation or Rule provisions
44 Continuance of repealed provisions
45 Law and amending Acts to be read as one
Part 10--Offences under this Law
46 Penalty at foot of provision
47 Penalty other than at foot of provision
48 Indictable offences and summary offences
49 Double jeopardy
50 Aiding and abetting, attempts etc
Part 11--Instruments under this Law
51 Schedule applies to statutory instruments
52 National Gas Rules to be construed so as not to exceed the legislative power of the Legislature of
this jurisdiction or the powers conferred by this Law
53 Invalid Rules
Schedule 3--Savings and transitionals
Part 1--General
1 Definitions
2 Schedule subject to jurisdictional transitional arrangements in jurisdictional legislation
Part 2--General savings provision
3 Saving of operation of old access law and Gas Code
Part 3--Classification and coverage of pipelines
4 Pending applications for the classification of pipelines lapse
5 Old scheme coverage determinations
6 Old scheme covered transmission pipelines
7 Old scheme covered distribution pipelines
8 Pending coverage applications under old scheme (before NCC recommendation)
9 Pending relevant Minister decisions in relation to coverage under old scheme
10 Pending relevant Minister decisions in relation to coverage that are reviewed under old scheme
11 Pending old scheme coverage determinations where no applications for review under old scheme
12 Pending old scheme coverage determinations where applications for review under old scheme on
foot
13 Pending old scheme no-coverage determinations where no applications for review under old
scheme
14 Pending old scheme no-coverage determinations where applications for review under old scheme
on foot
15 Pending coverage revocation applications under old scheme (before NCC recommendation)
16 Pending relevant Minister decisions in relation to coverage revocation under old scheme
17 Pending relevant Minister decisions in relation to coverage revocation that are reviewed under old
scheme
18 Pending old scheme coverage revocation determinations where no applications for review under
old scheme
19 Pending old scheme coverage revocation determinations where applications for review under old
scheme on foot
20 Pending old scheme coverage non-revocation determinations where no applications for review
under old scheme
21 Pending old scheme coverage non-revocation determinations where applications for review under
old scheme on foot
22 Binding no-coverage determinations
23 Pending applications for binding no-coverage determinations (before NCC recommendation)
24 Pending relevant Minister decisions for binding no-coverage determinations under old scheme
25 Pending relevant Minister decisions in relation to binding no-coverage determinations that are
reviewed under old scheme
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Part 4--Access arrangements
26 Current access arrangements (other than old scheme limited access arrangements)
27 Old scheme limited access arrangements
28 Access arrangements submitted but not approved or rejected before repeal of old scheme
29 Access arrangement revisions submitted but not approved or rejected before repeal of old scheme
30 Certain provisions of the Gas Code to continue to apply to current and proposed access
arrangements
31 Certain decisions relating to certain access arrangements are reviewable regulatory decisions for
purposes of Chapter 8 Part 5 of the Law
32 Limited access arrangements submitted but not approved before repeal of old scheme
33 Extensions and expansions policies
34 Queuing policies
Part 5--Price regulation exemptions
35 Old scheme price regulation exemptions
36 Pending applications for price regulation exemptions
37 Pending Commonwealth Minister decisions for price regulation exemptions
Part 6--Structural and operational separation (ring fencing)
38 Definitions
39 Compliance with certain old scheme ring fencing requirements sufficient compliance for 6 month
period
40 Existing waivers of ring fencing obligations
41 Additional ring fencing obligations
Part 7--Access disputes
42 Non-finalised access disputes
Part 8--Investigations and proceedings
43 Investigations into breaches and possible breaches of the old access law or Gas Code
44 AER may conduct investigations into breaches or possible breaches of Gas Pipelines Access Law
not investigated by a relevant Regulator
45 AER may bring proceedings in relation to breaches of old access law and Gas Code
Part 9--Associate contracts
46 Pending associate contract approvals that are approved after commencement day
47 Pending associate contracts approvals that are not approved
48 Approved associate contracts
Part 10--Other
49 Pending and final tender approval requests lapse
50 Decisions approving final approval requests
51 Rights under certain change of law provisions in agreements or deeds not to be triggered
52 References to relevant Regulator in access arrangements
53 Old scheme classifications and scheme participant determinations
The Parliament of South Australia enacts as follows:
Part 1--Preliminary
1--Short title
This Act may be cited as the National Gas (South Australia) Act 2008.
2--Commencement
5 (1) This Act will come into operation on a day to be fixed by proclamation.
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(2) The Governor may, in acting under section 7(3) of the Acts Interpretation Act 1915,
fix different days for different provisions of the Schedule to come into operation.
(3) Section 7(5) of the Acts Interpretation Act 1915 does not apply to this Act or a
provision of this Act.
5 3--Interpretation
(1) In this Act--
National Gas (South Australia) Law means the provisions applying because of
section 7 of this Act;
National Gas (South Australia) Regulations means the provisions applying because
10 of section 8 of this Act.
(2) Words and expressions used in the National Gas (South Australia) Law and in this Act
have the same respective meanings in this Act as they have in that Law.
(3) This section does not apply to the extent that the context or subject matter otherwise
indicates or requires.
15 4--Crown to be bound
This Act, the National Gas (South Australia) Law and the National Gas (South
Australia) Regulations bind the Crown, not only in right of South Australia but also,
so far as the legislative power of the Parliament permits, the Crown in all its other
capacities.
20 5--Application to coastal waters
(1) This Act, the National Gas (South Australia) Law and the National Gas (South
Australia) Regulations apply in the coastal waters of this State as if the coastal waters
were within the limits of the State.
(2) In this section--
25 adjacent area in respect of the State means the adjacent area of this jurisdiction under
the National Gas (South Australia) Law (as defined in section 9(1) of this Act);
coastal waters, in relation to this State, means any sea that is on the landward side of
the adjacent area in respect of the State but is not within the limits of the State.
6--Extra-territorial operation
30 It is the intention of the Parliament that this Act, the National Gas (South Australia)
Law and the National Gas (South Australia) Regulations should, so far as possible,
operate to the full extent of the extra-territorial legislative power of the State.
Part 2--National Gas (South Australia) Law and National Gas
(South Australia) Regulations
35 7--Application of National Gas Law
The National Gas Law set out in the Schedule to this Act, as in force for the time
being--
(a) applies as a law of South Australia; and
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Part 2--National Gas (South Australia) Law and National Gas (South Australia) Regulations
(b) as so applying may be referred to as the National Gas (South Australia) Law.
Note--
This section has effect to the extent to which the provisions of the Schedule have come
into operation--see section 2(2).
5 8--Application of regulations under National Gas Law
The regulations in force for the time being under Part 3 of this Act--
(a) apply as regulations in force for the purposes of the National Gas (South
Australia) Law; and
(b) as so applying may be referred to as the National Gas (South Australia)
10 Regulations.
9--Interpretation of some expressions in National Gas (South Australia) Law
and National Gas (South Australia) Regulations
(1) In the National Gas (South Australia) Law and the National Gas (South Australia)
Regulations--
15 adjacent area of another participating jurisdiction means the area that is identified in
section 5A of the Petroleum (Submerged Lands) Act 1967 of the Commonwealth as
being the adjacent area in respect of a State other than this State or in respect of the
Northern Territory;
adjacent area of this jurisdiction means the area that is identified in section 5A of the
20 Petroleum (Submerged Lands) Act 1967 of the Commonwealth as being the adjacent
area in respect of this State;
Court means the Supreme Court of South Australia;
designated Minister means the Minister to whom the administration of this Act has
been committed;
25 Legislature of this jurisdiction means the Parliament of South Australia;
National Gas Law or this Law means the National Gas (South Australia) Law;
this jurisdiction means the State of South Australia.
(2) The Acts Interpretation Act 1915 does not apply to the National Gas (South Australia)
Law or the National Gas (South Australia) Regulations.
30 Part 3--Making of regulations and rules under National Gas
Law
10--Definitions
In this Part--
National Gas Law means the National Gas Law set out in the Schedule to this Act as
35 in force for the time being.
11--General regulation-making power for National Gas Law
(1) The Governor may make such regulations as are contemplated by, or necessary or
expedient for the purposes of, the National Gas Law.
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(2) Without limiting subsection (1), the regulations may prescribe fees in respect of any
matter under the National Gas Law, and provide for the waiver or refund of such fees.
(3) Regulations under this Part may--
(a) be of general or limited application;
5 (b) vary according to the persons, times, places or circumstances to which they
are expressed to apply;
(c) in relation to fees, prescribe differential fees or provide for fees to be
determined according to prescribed factors.
(4) Once the Governor has made a regulation prescribing 1 or more pipelines to be
10 designated pipelines for the purposes of the definition of designated pipeline in
section 2 of the National Gas Law, the Governor cannot make another regulation that
prescribes any other pipeline to be a designated pipeline.
(5) Regulations under this Part may be made only on the unanimous recommendation of
the Ministers of the participating jurisdictions.
15 (6) Section 10 of the Subordinate Legislation Act 1978 does not apply to a regulation
under this Part.
12--Specific regulation-making power
(1) Without limiting the generality of section 11, the regulations may deal with matters of
a transitional nature relating to the transition from the application of provisions of the
20 old access law or the Gas Code to the application of provisions of the National Gas
Law.
(2) Any provision of the regulations that deals with a matter of a transitional nature under
subsection (1) may be expressed to take effect from a time that is earlier than the
beginning of the day on which the regulations containing the provision are made, not
25 being a time earlier than the commencement of this subsection.
(3) If a provision of a regulation is expressed to take effect from a time that is earlier than
the beginning of the day on which the regulations containing the provision are made,
the provision must also provide that the provision does not operate so as--
(a) to prejudicially affect the rights of a person (other than the rights of a
30 Minister of a participating jurisdiction or an entity involved in the
administration of the old access law, the Gas Code or the National Gas Law)
existing before the date of making of those regulations; or
(b) to impose liabilities on any person (other than liabilities imposed on a
Minister of a participating jurisdiction or an entity involved in the
35 administration of the old access law, the Gas Code or the National Gas Law)
in respect of anything done or omitted to be done before the date of making of
those regulations.
(4) In this section--
Gas Code means the National Third Party Access Code for Natural Gas Pipelines
40 Systems set out in Schedule 2 of the Gas Pipelines Access (South Australia) Act 1997
as in force from time to time before the commencement of this section;
matters of a transitional nature includes matters of an application or savings nature;
HA GP 177-A OPC 169 17
National Gas (South Australia) Bill 2008
Part 3--Making of regulations and rules under National Gas Law
National Gas Law means the National Gas Law set out in the Schedule to this Act as
in force from time to time after the commencement of this section, or the Rules as in
force from time to time after the commencement of this section;
old access law means Schedule 1 to the Gas Pipelines Access (South Australia)
5 Act 1997 as in force from time to time before the commencement of this section.
13--Making of rules
The Subordinate Legislation Act 1978 does not apply to Rules made under the
National Gas Law.
Part 4--Cross vesting of powers
10 14--Conferral of powers on Commonwealth Minister and Commonwealth
bodies to act in this State
(1) The Commonwealth Minister and the Commonwealth bodies have power to do acts in
or in relation to this State in the performance or exercise of a function or power
expressed to be conferred on them respectively by the national gas legislation of
15 another participating jurisdiction.
(2) In this section--
Commonwealth bodies means any of the following:
(a) AER;
(b) NCC;
20 (c) the Tribunal.
15--Conferral of powers on Ministers of participating States and Territories to
act in this State
The Minister of a participating jurisdiction has power to do acts in or in relation to this
State in the performance or exercise of a function or power expressed to be conferred
25 on the Minister by the national gas legislation of another participating jurisdiction.
16--Conferral of functions or powers on State Minister
If the national gas legislation of another participating jurisdiction confers a function or
power on the Minister, the Minister--
(a) may perform that function or exercise that power; and
30 (b) may do all things necessary or convenient to be done in connection with the
performance or exercise of that function or power.
Part 5--General
17--Exemption from taxes
(1) Any stamp duty or other tax imposed by or under a law of this State is not payable in
35 relation to--
(a) an exempt matter; or
18 HA GP 177-A OPC 169
National Gas (South Australia) Bill 2008
General--Part 5
(b) anything done (including, for example, a transaction entered into or an
instrument or document made, executed, lodged or given) because of, or
arising out of, an exempt matter.
(2) In this section--
5 exempt matter means a transfer of assets or liabilities--
(a) that is made for the purpose of ensuring that a person does not carry on a
business of producing, purchasing or selling natural gas or processable gas in
breach of any ring fencing requirements of any national gas legislation or for
the purpose of the separation of certain businesses or business activities from
10 other businesses or business activities of a person as required by an AER ring
fencing determination; and
(b) that the Minister and the Treasurer declare from time to time by notice in the
Gazette to be an exempt matter for the purposes of this section.
18--Actions in relation to cross boundary pipelines
15 (1) If a pipeline is a cross boundary pipeline, any action taken under the national gas
legislation of a participating jurisdiction in whose jurisdictional area a part of the
pipeline is situated--
(a) by, or in relation to, a relevant Minister; or
(b) by the Court within the meaning of that legislation in relation to action taken
20 by, or in relation to, a relevant Minister,
is taken also to be taken under the national gas legislation of each participating
jurisdiction in whose jurisdictional area a part of the pipeline is situated (that other
legislation)--
(c) by, or in relation to, a relevant Minister within the meaning of that other
25 legislation; or
(d) by the Court within the meaning of that other legislation,
as the case requires.
(2) Despite subsection (1), no proceeding for judicial review or for a declaration,
injunction, writ, order or remedy may be brought before the Court to challenge or
30 question any action, or purported action, of a relevant Minister taken, or purportedly
taken, in relation to a cross boundary distribution pipeline unless this jurisdiction has
been determined to be the participating jurisdiction with which the cross boundary
distribution pipeline is most closely connected.
(3) A reference in this section--
35 (a) to an action that is taken includes a reference to--
(i) a decision or determination that is made; or
(ii) an omission that is made;
(b) to a purported action that is purportedly taken includes a reference to a
purported decision or determination that is purportedly made.
HA GP 177-A OPC 169 19
National Gas (South Australia) Bill 2008
Part 5--General
(4) In this section--
cross boundary pipeline means--
(a) a cross boundary transmission pipeline; or
(b) a cross boundary distribution pipeline.
5 19--Conferral of functions and powers on Commonwealth bodies
(1) Clause 2 of Schedule 2 to the National Gas (South Australia) Law has effect in
relation to the operation of any provision of this Act, or any regulation made under
this Act, as if the provision or regulation formed part of the National Gas (South
Australia) Law.
10 (2) Subsection (1) does not limit the effect that a provision or regulation would validly
have apart from the subsection.
Part 6--Repeal of Gas Pipelines Access (South Australia)
Act 1997
20--Repeal of Gas Pipelines Access (South Australia) Act 1997
15 The Gas Pipelines Access (South Australia) Act 1997 is repealed.
Part 7--Amendment of this Act when Offshore Petroleum
Act 2006 commences
21--Amendment of this Act when Offshore Petroleum Act 2006 commences
(1) This Act is amended in the manner specified by subsection (2) (and a reference in this
20 section to a provision is a reference to a provision of this Act).
(2) Section 9(1), definitions of adjacent area of another participating jurisdiction and
adjacent area of this jurisdiction--delete these definitions and substitute:
adjacent area of another participating jurisdiction means the offshore area
of a State other than this State or of the Northern Territory within the
25 meaning given in section 7 of the Offshore Petroleum Act 2006 of the
Commonwealth;
adjacent area of this jurisdiction means the offshore area of the State within
the meaning given in section 7 of the Offshore Petroleum Act 2006 of the
Commonwealth;
30 Part 8--Amendment of Australian Energy Market Commission
Establishment Act 2004
22--Amendment of Australian Energy Market Commission Establishment
Act 2004
(1) The Australian Energy Market Commission Establishment Act 2004 is amended in the
35 manner specified by this section (and a reference in this section to a provision is a
reference to a provision of that Act).
20 HA GP 177-A OPC 169
National Gas (South Australia) Bill 2008
Amendment of Australian Energy Market Commission Establishment Act 2004--Part 8
(2) Section 3(1), definitions of Gas Pipelines Access Application Act, Gas Pipelines
Access Law and Gas Pipelines Access Regulations--delete the definitions
(3) Section 3(1), definition of National Energy Law, paragraphs (e) to (h) (inclusive)--
delete the paragraphs and substitute:
5 (e) a National Gas Application Act; or
(f) the National Gas Law; or
(g) the National Gas Regulations; or
(h) the National Gas Rules;
(4) Section 3(1), definitions of National Third Party Access Code for Natural Gas
10 Pipelines Systems and natural gas--delete the definitions and substitute:
National Gas Application Act means--
(a) the National Gas (South Australia) Act 2008; or
(b) the Australian Energy Market Act 2004 of the Commonwealth; or
(c) any other Act of a State or Territory of the Commonwealth that
15 applies the National Gas Law set out in the Schedule to the National
Gas (South Australia) Act 2008, with or without modification and
whether as in force at a particular time or as in force for the time
being, as a law of that jurisdiction;
National Gas Law means the National Gas Law set out in the Schedule to the
20 National Gas (South Australia) Act 2008 applying as a law of South Australia
or as applied, with or without modification and whether as in force at a
particular time or as in force for the time being, as a law of another
jurisdiction;
National Gas Regulations means regulations that, under a National Gas
25 Application Act, apply as regulations for the purposes of a National Gas Law;
National Gas Rules means the National Gas Rules as defined in section 2 of
the National Gas Law;
natural gas has the same meaning as in the National Gas Law;
Schedule--National Gas Law
30 Chapter 1--Preliminary
Part 1--Citation and interpretation
1--Citation
This law may be cited as the National Gas Law.
2--Definitions
35 In this Law--
15-year no-coverage determination means a determination of a relevant
Minister under Chapter 5 Part 2;
HA GP 177-A OPC 169 21
National Gas (South Australia) Bill 2008
Schedule--National Gas Law
ACCC means the Australian Competition and Consumer Commission
established by section 6A of the Trade Practices Act 1974 of the
Commonwealth;
access arrangement means an arrangement setting out terms and conditions
5 about access to pipeline services provided or to be provided by means of a
pipeline;
access determination means a determination of the dispute resolution body
under Chapter 6 Part 3 and includes a determination varied under Part 4 of
that Chapter;
10 AEMC means the Australian Energy Market Commission established by
section 5 of the Australian Energy Market Commission Establishment
Act 2004 of South Australia;
AER means the Australian Energy Regulator established by section 44AE of
the Trade Practices Act 1974 of the Commonwealth;
15 AER economic regulatory decision means a decision (however described) of
the AER under this Law or the Rules performing or exercising an AER
economic regulatory function or power;
AER economic regulatory function or power means a function or power
performed or exercised by the AER under this Law or the Rules that relates to
20 the economic regulation of pipeline services provided by a service provider--
(a) by means of; or
(b) in connection with,
a scheme pipeline and includes a function or power performed or exercised
by the AER under this Law or the Rules that relates to--
25 (c) the preparation of a service provider performance report;
(d) a ring fencing decision;
(e) an applicable access arrangement decision;
(f) an access determination (if the AER is the dispute resolution body);
AER ring fencing determination means a determination of the AER under
30 section 143(1);
applicable access arrangement means a limited access arrangement or full
access arrangement that has taken effect after being approved or made by the
AER under the Rules and includes an applicable access arrangement as
varied--
35 (a) under the Rules; or
(b) by an access determination as provided by this Law or the Rules;
applicable access arrangement decision means--
(a) a full access arrangement decision; or
(b) a limited access arrangement decision;
40 approved associate contract means an associate contract approved by the
AER under an associate contract decision;
22 HA GP 177-A OPC 169
National Gas (South Australia) Bill 2008
National Gas Law--Schedule
associate in relation to a person has the same meaning it would have under
Division 2 of Part 1.2 of the Corporations Act 2001 of the Commonwealth if
sections 13, 16(2) and 17 did not form part of that Act;
associate contract means--
5 (a) a contract, arrangement or understanding between a service provider
and an associate of the service provider in connection with the
provision of an associate pipeline service; or
(b) a contract, arrangement or understanding between a service provider
and any person in connection with the provision of an associate
10 pipeline service--
(i) that provides a direct or indirect benefit to an associate; and
(ii) that is not at arm's length;
associate contract decision means a decision of the AER under the Rules that
approves or does not approve an associate contract for the purposes of
15 Chapter 4 Part 2 Division 5;
associate pipeline service means a pipeline service provided by means of a
pipeline other than a pipeline to which a 15-year no coverage determination
applies;
Bulletin Board information means information that--
20 (a) a person gives to the Bulletin Board operator to comply with
section 223(1); or
(b) a person gives to the Bulletin Board operator in circumstances
expressly permitted by the Rules;
Bulletin Board operator means the person prescribed by the Regulations for
25 the purposes of section 217;
charge, in relation to a pipeline service, means the amount that is payable by
a user to a service provider for the provision of the pipeline service to that
user;
civil penalty means--
30 (a) in the case of a breach of a civil penalty provision by a natural
person--
(i) an amount not exceeding $20 000; and
(ii) an amount not exceeding $2 000 for every day during which
the breach continues;
35 (b) in the case of a breach of a civil penalty provision by a body
corporate--
(i) an amount not exceeding $100 000; and
(ii) an amount not exceeding $10 000 for every day during
which the breach continues;
40 civil penalty provision has the meaning given by section 3;
HA GP 177-A OPC 169 23
National Gas (South Australia) Bill 2008
Schedule--National Gas Law
classification decision under the Rules means a decision of the NCC under
the Rules that classifies either of the following pipelines as a cross boundary
transmission pipeline, cross boundary distribution pipeline, transmission
pipeline or a distribution pipeline:
5 (a) a pipeline in respect of which a tender approval decision becomes
irrevocable by operation of the Rules;
(b) a pipeline--
(i) by means of which a service provider intends to provide
pipeline services to which a full access arrangement
10 voluntarily submitted to the AER for approval by that
provider will apply, if approved; and
(ii) in respect of which the NCC has not previously made an
initial classification decision;
commission, in relation to a pipeline, has the meaning given by section 12;
15 Commonwealth Minister means the Minister of the Commonwealth
administering the Australian Energy Market Act 2004 of the Commonwealth;
conduct provision has the meaning given by section 4;
coverage determination means a determination of a relevant Minister under
Chapter 3 Part 1 Division 1;
20 coverage recommendation means a recommendation of the NCC under
Chapter 3 Part 1 Division 1;
coverage revocation determination means a determination of a relevant
Minister under Chapter 3 Part 1 Division 2;
coverage revocation recommendation means a recommendation of the NCC
25 under Chapter 3 Part 1 Division 2;
covered pipeline means a pipeline--
(a) to which a coverage determination applies; or
(b) deemed to be a covered pipeline by operation of section 126 or 127;
covered pipeline service provider means a service provider that provides or
30 intends to provide pipeline services by means of a covered pipeline;
cross boundary distribution pipeline means a distribution pipeline that is
partly situated in the jurisdictional areas of 2 or more participating
jurisdictions;
cross boundary transmission pipeline means a transmission pipeline that is
35 partly situated in the jurisdictional areas of 2 or more participating
jurisdictions;
designated pipeline means a pipeline prescribed by the Regulations to be a
designated pipeline;
Note--
40 A light regulation determination cannot be made in respect of pipeline services
provided by means of a designated pipeline: see sections 109 and 111.
24 HA GP 177-A OPC 169
National Gas (South Australia) Bill 2008
National Gas Law--Schedule
developable capacity means the difference between the current capacity of a
covered pipeline and the capacity of a covered pipeline which would be
available if a new facility was constructed, but does not include any new
capacity of a covered pipeline resulting from an extension to the geographic
5 range of a covered pipeline;
dispute resolution body means the AER;
distribution pipeline means a pipeline that is classified in accordance with
this Law or the Rules as a distribution pipeline and includes any extension to,
or expansion of the capacity of, such a pipeline when it is a covered pipeline
10 that, by operation of an applicable access arrangement or under this Law, is to
be treated as part of the pipeline;
Note--
See also sections 18 and 19.
draft Rule determination means a determination of the AEMC under
15 section 308;
end user means a person who acquires natural gas or proposes to acquire
natural gas for consumption purposes;
ERA means the Economic Regulation Authority established by section 4 of
the Economic Regulation Authority Act 2003 of Western Australia;
20 extension and expansion requirements means--
(a) the requirements contained in an access arrangement that, in
accordance with the Rules, specify--
(i) the circumstances when an extension to, or expansion of the
capacity of, a covered pipeline is to be treated as forming
25 part of the covered pipeline; and
(ii) whether the pipeline services provided or to be provided by
means of, or in connection with, spare capacity arising out
of an extension to, or expansion of the capacity of, a covered
pipeline will be subject to the applicable access arrangement
30 applying to the pipeline services to which that arrangement
applies; and
(iii) whether an extension to, or expansion of the capacity of, a
covered pipeline will affect a reference tariff, and if so, the
effect on the reference tariff; and
35 (b) any other requirements specified by the Rules as extension and
expansion requirements;
Note--
See also sections 18 and 19.
final Rule determination means a determination of the AEMC under
40 section 311;
foreign company has the same meaning as in the Corporations Act 2001 of
the Commonwealth;
HA GP 177-A OPC 169 25
National Gas (South Australia) Bill 2008
Schedule--National Gas Law
foreign source means--
(a) a source beyond the outer limits of all of the following:
(i) the adjacent area of this jurisdiction;
(ii) the adjacent area of another participating jurisdiction; or
5 (b) a source within the joint petroleum development area (within the
meaning of the Petroleum (Timor Sea Treaty) Act 2003 of the
Commonwealth);
form of regulation factors has the meaning given by section 16;
full access arrangement means an access arrangement that--
10 (a) provides for price or revenue regulation as required by the Rules; and
(b) deals with all other matters for which the Rules require provision to
be made in an access arrangement;
full access arrangement decision means a decision of the AER under the
Rules that--
15 (a) approves or does not approve a full access arrangement or revisions
to an applicable access arrangement submitted to the AER under
section 132 or the Rules; or
(b) makes a full access arrangement--
(i) in place of a full access arrangement the AER does not
20 approve in that decision; or
(ii) because a service provider does not submit a full access
arrangement in accordance with section 132 or the Rules;
(c) makes revisions to an access arrangement--
(i) in place of revisions submitted to the AER under section 132
25 that the AER does not approve in that decision; or
(ii) because a service provider does not submit revisions to the
AER under section 132;
Gas Code means the National Third Party Access Code for Natural Gas
Pipeline Systems set out in Schedule 2 to the Gas Pipelines Access (South
30 Australia) Act 1997 of South Australia as in force from time to time before
the commencement of section 20 of the National Gas (South Australia) Act
2008 of South Australia;
gas market operator means VENCorp or any other person or body prescribed
by the Regulations to be a gas market operator;
35 general regulatory information order has the meaning given by section 45;
greenfields pipeline incentive means--
(a) a 15-year no-coverage determination; or
(b) a price regulation exemption;
haulage, in relation to natural gas, includes conveyance or reticulation of
40 natural gas;
26 HA GP 177-A OPC 169
National Gas (South Australia) Bill 2008
National Gas Law--Schedule
initial classification decision means a decision of the NCC under section 98
or 155;
initial National Gas Rules means the National Gas Rules made under
section 294;
5 international pipeline means a pipeline for the haulage of gas from a foreign
source;
jurisdictional determination criteria, in relation to a cross boundary
distribution pipeline, has the meaning given by section 14;
jurisdictional gas legislation means an Act of a participating jurisdiction
10 (other than national gas legislation), or any instrument made or issued under
or for the purposes of that Act, that regulates the haulage of gas in that
jurisdiction;
light regulation determination means a determination of the NCC under
Chapter 3 Part 2 Division 1;
15 light regulation services means pipeline services to which a light regulation
determination applies;
limited access arrangement means an access arrangement that, under this
Law and the Rules, is not required to make provision for price or revenue
regulation but deals with the matters for which this Law and the Rules require
20 provision to be made in an access arrangement;
limited access arrangement decision means a decision of the AER under the
Rules that approves or does not approve--
(a) a limited access arrangement submitted to the AER under
section 116 or 168; or
25 (b) revisions to a limited access arrangement submitted to the AER
under section 116(3) or 168(3) or the Rules;
MCE means the Ministerial Council on Energy established on 8 June 2001,
being the Council of Ministers with primary carriage of energy matters at a
national level comprising the Ministers representing the Commonwealth, the
30 States, the Australian Capital Territory and the Northern Territory, acting in
accordance with its own procedures;
MCE directed review means a review conducted by the AEMC under Chapter
2 Part 2 Division 4;
MCE statement of policy principles means a statement of policy principles
35 issued by the MCE under section 25;
minimum ring fencing requirement means a requirement under Chapter 4
Part 2 Division 2;
Minister of a participating jurisdiction means a Minister who is a Minister of
a participating jurisdiction within the meaning of section 22;
40 Ministerial coverage decision means--
(a) a decision of a relevant Minister under section 99, 106 or 156; or
(b) a decision of the Commonwealth Minister under section 164;
HA GP 177-A OPC 169 27
National Gas (South Australia) Bill 2008
Schedule--National Gas Law
national gas legislation means--
(a) the National Gas (South Australia) Act 2008 of South Australia and
Regulations in force under that Act; and
(b) the National Gas (South Australia) Law; and
5 (c) the National Gas Access (Western Australia) Act 2008 of Western
Australia; and
(d) the National Gas Access (Western Australia) Law (within the
meaning given in the National Gas Access (Western Australia) Act
2008 of Western Australia; and
10 (e) Regulations made under the National Gas Access (Western
Australia) Act 2008 of Western Australia for the purposes of the
National Gas Access (Western Australia) Law; and
(f) an Act of a participating jurisdiction (other than South Australia or
Western Australia) that applies, as a law of that jurisdiction, any part
15 of--
(i) the Regulations referred to in paragraph (a); or
(ii) the National Gas Law set out in the Schedule to the National
Gas (South Australia) Act 2008 of South Australia; and
(g) the National Gas Law set out in the Schedule to the National Gas
20 (South Australia) Act 2008 of South Australia as applied as a law of
a participating jurisdiction (other than South Australia or Western
Australia); and
(h) the Regulations referred to in paragraph (a) as applied as a law of a
participating jurisdiction (other than South Australia or Western
25 Australia);
national gas objective means the objective set out in section 23;
National Gas Rules or Rules means--
(a) the initial National Gas Rules; and
(b) Rules made by the AEMC under this Law, including Rules that
30 amend or revoke--
(i) the initial National Gas Rules; or
(ii) Rules made by it;
natural gas means a substance that--
(a) is in a gaseous state at standard temperature and pressure; and
35 (b) consists of naturally occurring hydrocarbons, or a naturally occurring
mixture of hydrocarbons and non-hydrocarbons, the principal
constituent of which is methane; and
(c) is suitable for consumption;
natural gas service means--
40 (a) a pipeline service; or
28 HA GP 177-A OPC 169
National Gas (South Australia) Bill 2008
National Gas Law--Schedule
(b) the supply of natural gas; or
(c) a service ancillary to the service described in paragraph (b);
Natural Gas Services Bulletin Board means the website maintained by the
Bulletin Board operator that contains information of the kind specified in the
5 Rules in relation to natural gas services;
NCC means the National Competition Council established by section 29A of
the Trade Practices Act 1974 of the Commonwealth;
NCC recommendation or decision means--
(a) a coverage recommendation; or
10 (b) a coverage revocation recommendation; or
(c) a no-coverage recommendation; or
(d) a price regulation exemption recommendation; or
(e) a reclassification decision; or
(f) a light regulation determination; or
15 (g) a decision of the NCC under Chapter 3 Part 2 Division 2 to revoke a
light regulation determination; or
(h) a decision of the NCC not to make a decision referred to in
paragraph (f) or (g); or
(i) advice under section 172;
20 new facility means an extension to, or expansion of the capacity of, a covered
pipeline which is to be treated as part of the covered pipeline--
(a) in accordance with the extension and expansion requirements
contained in an applicable access arrangement applying to the
pipeline services provided by means of that covered pipeline; or
25 (b) under this Law;
Note--
See also sections 18 and 19.
no-coverage recommendation means a recommendation of the NCC under
Chapter 5 Part 2;
30 non scheme pipeline user means a person who--
(a) is a party to a contract with a service provider under which the
service provider provides or intends to provide a pipeline service to
that person by means of a pipeline that is not a scheme pipeline; or
(b) has a right under an access determination to be provided with a
35 pipeline service by means of a pipeline that is not a scheme pipeline;
offence provision means a provision of this Law the breach or contravention
of which by a person exposes that person to a finding of guilt by a court;
officer has the same meaning as officer has in relation to a corporation under
section 9 of the Corporations Act 2001 of the Commonwealth;
HA GP 177-A OPC 169 29
National Gas (South Australia) Bill 2008
Schedule--National Gas Law
old access law means Schedule 1 to the Gas Pipelines Access (South
Australia) Act 1997 of South Australia as in force from time to time before
the commencement of section 20 of the National Gas (South Australia) Act
2008 of South Australia;
5 old scheme classification or determination means a classification or
determination under section 10 or 11 of the old access law in force at any
time before the repeal of the old access law;
old scheme distribution pipeline means a pipeline that was, at any time
before the repeal of the old access law--
10 (a) a distribution pipeline as defined in that law; and
(b) a covered pipeline as defined in the Gas Code;
old scheme transmission pipeline means a pipeline that was, at any time
before the repeal of the old access law--
(a) a transmission pipeline as defined in that law; and
15 (b) a covered pipeline as defined in the Gas Code;
participating jurisdiction means a jurisdiction that is a participating
jurisdiction by reason of section 21;
pipeline means--
(a) a pipe or system of pipes for the haulage of natural gas, and any
20 tanks, reservoirs, machinery or equipment directly attached to that
pipe or system of pipes; or
(b) a proposed pipe or system of pipes for the haulage of natural gas, and
any proposed tanks, reservoirs, machinery or equipment proposed to
be directly attached to the proposed pipe or system of pipes; or
25 (c) a part of a pipe or system of pipes or proposed pipe or system of
pipes referred to in paragraph (a) or (b),
but does not include--
(d) unless paragraph (e) applies, anything upstream of a prescribed exit
flange on a pipeline conveying natural gas from a prescribed gas
30 processing plant; or
(e) if a connection point upstream of an exit flange on such a pipeline is
prescribed, anything upstream of that point; or
(f) a gathering system operated as part of an upstream producing
operation; or
35 (g) any tanks, reservoirs, machinery or equipment used to remove or add
components to or change natural gas (other than odourisation
facilities) such as a gas processing plant; or
(h) anything downstream of a point on a pipeline from which a person
takes natural gas for consumption purposes;
40 pipeline classification criterion has the meaning given by section 13;
pipeline coverage criteria has the meaning given by section 15;
30 HA GP 177-A OPC 169
National Gas (South Australia) Bill 2008
National Gas Law--Schedule
pipeline reliability standard means a standard imposed by or under an Act of
a participating jurisdiction, or any instrument made or issued under or for the
purposes of that Act, relating to the reliable haulage of natural gas in that
jurisdiction;
5 pipeline safety duty means a duty or requirement under an Act of a
participating jurisdiction, or any instrument made or issued under or for the
purposes of that Act, relating to--
(a) the safe haulage of natural gas in that jurisdiction; or
(b) the safe operation of a pipeline in that jurisdiction;
10 pipeline service means--
(a) a service provided by means of a pipeline, including--
(i) a haulage service (such as firm haulage, interruptible
haulage, spot haulage and backhaul); and
(ii) a service providing for, or facilitating, the interconnection of
15 pipelines; and
(b) a service ancillary to the provision of a service referred to in
paragraph (a),
but does not include the production, sale or purchase of natural gas or
processable gas;
20 pipeline service standard means a standard relating to the standard of the
pipeline services provided by a service provider by means of a covered
pipeline imposed--
(a) by or under jurisdictional gas legislation; or
(b) by the AER--
25 (i) under an access arrangement decision; or
(ii) in accordance with the Rules;
price or revenue regulation means regulation of--
(a) the prices, charges or tariffs for pipeline services to be, or that are to
be, provided; or
30 (b) the revenue to be, or that is to be, derived from the provision of
pipeline services;
price regulation exemption means an exemption under Chapter 5 Part 3;
price regulation exemption recommendation means a recommendation of
the NCC under section 162;
35 processable gas means a substance that--
(a) is in a gaseous state at standard temperature and pressure; and
(b) consists of naturally occurring hydrocarbons, or a naturally occurring
mixture of hydrocarbons and non-hydrocarbons, the principal
constituent of which is methane;
40 producer means a person who carries on a business of producing natural gas;
HA GP 177-A OPC 169 31
National Gas (South Australia) Bill 2008
Schedule--National Gas Law
prospective user has the meaning given by section 5;
queuing requirements means terms and conditions providing for the priority
that a prospective user has, as against any other prospective user, to obtain
access to spare capacity and developable capacity;
5 reclassification decision means a decision of the NCC under Chapter 3 Part
5;
reference service means a pipeline service specified by, or determined or
approved by the AER under, the Rules as a reference service;
reference tariff means a tariff or charge for a reference service--
10 (a) specified in an applicable access arrangement approved or made
under a full access arrangement decision; or
(b) determined by applying the formula or methodology contained in an
applicable access arrangement approved or made under a full access
arrangement decision;
15 Regulations means the regulations made under Part 3 of the National Gas
(South Australia) Act 2008 of South Australia that apply as a law of this
jurisdiction;
regulatory information instrument means--
(a) a general regulatory information order; or
20 (b) a regulatory information notice;
regulatory information notice has the meaning given by section 46;
regulatory obligation or requirement has the meaning given by section 6;
regulatory payment has the meaning given by section 7;
relevant Minister means if, in a coverage recommendation, no-coverage
25 recommendation, classification decision under the Rules or reclassification
decision, the NCC determines the pipeline is--
(a) a cross boundary transmission pipeline--the Commonwealth
Minister;
(b) a transmission pipeline situated wholly within a participating
30 jurisdiction--the designated Minister;
Note--
The term designated Minister is defined in the Act of this jurisdiction
that applies this Law as a law of this jurisdiction.
(c) a distribution pipeline situated wholly within a participating
35 jurisdiction--the Minister of the participating jurisdiction;
(d) a cross boundary distribution pipeline--the Minister of the
participating jurisdiction determined by the NCC in the
recommendation as being the participating jurisdiction with which
the cross boundary distribution pipeline is most closely connected;
40 relevant Regulator has the same meaning as in section 2 of the old access
law;
32 HA GP 177-A OPC 169
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revenue and pricing principles means the principles set out in section 24;
ring fencing decision means--
(a) an AER ring fencing determination; or
(b) a decision under section 146 granting or not granting an exemption
5 under that section; or
(c) an associate contract decision;
scheme pipeline means--
(a) a covered pipeline; or
(b) an international pipeline to which a price regulation exemption
10 applies;
service provider has the meaning given by section 8;
service provider performance report means a report prepared by the AER
under section 64;
spare capacity means unutilised capacity of a pipeline;
15 storage provider means any person who owns, operates or controls a facility
for storing natural gas or processable gas for injection into a pipeline;
supply includes--
(a) in relation to goods--supply (including re-supply) by way of sale,
exchange, lease, hire or hire purchase; and
20 (b) in relation to services--provide, grant or confer;
tariff means a rate by which a charge for a pipeline service is calculated;
tender approval decision means a decision of the AER under the Rules under
which the AER approves a tender process for the construction and operation
of a pipeline as a competitive tender process;
25 Territory means the Australian Capital Territory or the Northern Territory;
transmission pipeline means a pipeline that is classified in accordance with
this Law or the Rules as a transmission pipeline and includes any extension
to, or expansion of the capacity of, such a pipeline when it is a covered
pipeline that, by operation of an applicable access arrangement or under this
30 Law, is to be treated as part of the pipeline;
Note--
See also sections 18 and 19.
Tribunal means the Australian Competition Tribunal referred to in the Trade
Practices Act 1974 of the Commonwealth and includes a member of the
35 Tribunal or a Division of the Tribunal performing functions of the Tribunal;
user means a person who--
(a) is a party to a contract with a service provider under which the
service provider provides or intends to provide a pipeline service to
that person by means of a scheme pipeline; or
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(b) has a right under an access determination to be provided with a
pipeline service by means of a scheme pipeline;
VENCorp means the Victorian Energy Networks Corporation continued
under Part 8 of the Gas Industry Act 2001 of Victoria.
5 3--Meaning of civil penalty provision
A civil penalty provision is--
(a) a provision of this Law specified in an item in the Table at the foot of
this section; or
(b) a provision of this Law (other than an offence provision) or the Rules
10 that is prescribed by the Regulations to be a civil penalty provision.
Table
Item Provision
1 Section 56
2 Section 57
3 Section 131
4 Section 133
5 Section 134
6 Section 135
7 Section 136
8 Section 139
9 Section 140
10 Section 141
11 Section 143(6)
12 Section 147
13 Section 148
14 Section 168
15 Section 169(3)
16 Section 170
17 Section 195
18 Section 223
19 Section 225
20 Section 227
21 Section 228
4--Meaning of conduct provision
A conduct provision is--
15 (a) a provision of this Law specified in an item in the Table at the foot of
this section; or
34 HA GP 177-A OPC 169
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(b) a provision of this Law (other than an offence provision) or the Rules
that is prescribed by the Regulations to be a conduct provision.
Table
Item Provision
1 Section 133
2 Section 134
3 Section 135
4 Section 136
5 Section 147
6 Section 148
7 Section 170
5 5--Meaning of prospective user
(1) A prospective user is a person who seeks or wishes to be provided with a
pipeline service by means of a scheme pipeline.
(2) To avoid doubt, a user is also a prospective user if the user seeks or wishes to
be provided with a pipeline service by means of a scheme pipeline other than
10 a pipeline service already provided to them under--
(a) a contract; or
(b) an access determination.
6--Meaning of regulatory obligation or requirement
(1) A regulatory obligation or requirement is--
15 (a) in relation to the provision of a pipeline service by a service
provider--
(i) a pipeline safety duty; or
(ii) a pipeline reliability standard; or
(iii) a pipeline service standard; or
20 (b) an obligation or requirement under--
(i) this Law or the Rules; or
(ii) an Act of a participating jurisdiction, or any instrument
made or issued under or for the purposes of that Act, that
levies or imposes a tax or other levy that is payable by a
25 service provider; or
(iii) an Act of a participating jurisdiction, or any instrument
made or issued under or for the purposes of that Act, that
regulates the use of land in a participating jurisdiction by a
service provider; or
30 (iv) an Act of a participating jurisdiction or any instrument made
or issued under or for the purposes of that Act that relates to
the protection of the environment; or
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(v) an Act of a participating jurisdiction, or any instrument
made or issued under or for the purposes of that Act (other
than national gas legislation or an Act of a participating
jurisdiction or an Act or instrument referred to in
5 subparagraphs (ii) to (iv)), that materially affects the
provision, by a service provider, of pipeline services to
which an applicable access arrangement applies.
(2) A regulatory obligation or requirement does not include an obligation or
requirement to pay a fine, penalty or compensation--
10 (a) for a breach of--
(i) a pipeline safety duty; or
(ii) a pipeline reliability standard; or
(iii) a pipeline service standard; or
(b) under this Law or the Rules or an Act or an instrument referred to in
15 subsection (1)(b)(ii) to (v).
Note--
See also section 24(2)(b).
7--Meaning of regulatory payment
A regulatory payment is a sum that a service provider had been required or
20 allowed to pay to a user or an end user for a breach of, as the case requires--
(a) a pipeline reliability standard; or
(b) a pipeline service standard,
because it was efficient for the service provider (in terms of the service
provider's overall business) to pay that sum.
25 Note--
See also section 24(2)(b).
8--Meaning of service provider
(1) A service provider is a person who--
(a) owns, controls or operates; or
30 (b) intends to own, control or operate,
a pipeline or scheme pipeline, or any part of a pipeline or scheme pipeline.
Note--
A service provider must not provide pipeline services by means of a scheme
pipeline unless the service provider is a legal entity of a specified kind: See
35 section 131, and section 169 where the scheme pipeline is an international
pipeline to which a price regulation exemption applies.
(2) A gas market operator that controls or operates (without at the same time
owning)--
(a) a pipeline or scheme pipeline; or
40 (b) a part of a pipeline or scheme pipeline,
36 HA GP 177-A OPC 169
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is not to be taken to be a service provider for the purposes of this Law.
9--Passive owners of scheme pipelines deemed to provide or intend to
provide pipeline services
(1) This section applies to a person who owns a scheme pipeline but does not
5 provide or intend to provide pipeline services by means of that pipeline.
(2) The person is, for the purposes of this Law, deemed to provide or intend to
provide pipeline services by means of that pipeline even if the person does
not, in fact, do so.
10--Things done by 1 service provider to be treated as being done by
10 all of service provider group
(1) This section applies if--
(a) more than 1 service provider (a service provider group) carries out a
controlling pipeline activity in respect of a pipeline (or a part of a
pipeline); and
15 (b) under this Law or the Rules a service provider is required or allowed
to do a thing.
(2) A service provider of the service provider group (the complying service
provider) may do that thing on behalf of the other service providers of the
service provider group if the complying service provider has the written
20 permission of all of the service providers of that group to do that thing on
behalf of the service provider group.
(3) Unless this Law or the Rules otherwise provide, on the doing of a thing
referred to in subsection (2) by a complying service provider, the service
providers of the service provider group on whose behalf the complying
25 service provider does that thing, must, for the purposes of this Law and the
Rules, each be taken to have done the thing done by the complying service
provider.
(4) This section does not apply to a thing required or allowed to be done under
section 131 or Chapter 4 Part 2.
30 (5) In this section--
controlling pipeline activity means own, control or operate.
11--Local agents of foreign service providers
(1) This section applies if--
(a) a service provider is a foreign company; and
35 (b) the service provider has, under the Corporations Act 2001 of the
Commonwealth, appointed a local agent within the meaning of that
Act.
(2) The local agent--
(a) is answerable for the doing of all acts, matters and things the service
40 provider is required by or under this Law to do; and
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(b) is personally liable to a penalty imposed on the service provider for a
breach of a provision of this Law or the Rules if a court hearing the
matter is satisfied that the local agent should be so liable.
12--Commissioning of a pipeline
5 A pipeline is commissioned when the pipeline is first used for the haulage of
natural gas, on a commercial basis.
13--Pipeline classification criterion
(1) The pipeline classification criterion is whether the primary function of the
pipeline is to--
10 (a) reticulate gas within a market (which is the primary function of a
distribution pipeline); or
(b) convey gas to a market (which is the primary function of a
transmission pipeline).
(2) Without limiting subsection (1), in determining the primary function of the
15 pipeline, regard must also be had to whether the characteristics of the pipeline
are those of a transmission pipeline or distribution pipeline having regard
to--
(a) the characteristics and classification of, as the case requires, an old
scheme transmission pipeline or an old scheme distribution pipeline;
20 (b) the characteristics of, as the case requires, a transmission pipeline or
a distribution pipeline classified under this Law;
(c) the characteristics and classification of pipelines specified in the
Rules (if any);
(d) the diameter of the pipeline;
25 (e) the pressure at which the pipeline is or will be designed to operate;
(f) the number of points at which gas can or will be injected into the
pipeline;
(g) the extent of the area served or to be served by the pipeline;
(h) the pipeline's linear or dendritic configuration.
30 14--Jurisdictional determination criteria--cross boundary distribution
pipelines
The pipeline jurisdictional determination criteria are--
(a) whether more gas is to be delivered by a cross boundary distribution
pipeline in the jurisdictional area of 1 participating jurisdiction than
35 in the jurisdictional area of any other participating jurisdiction;
(b) whether more customers to be served by a cross boundary
distribution pipeline are resident in the jurisdictional area of 1
participating jurisdiction than in the jurisdictional area of any other
participating jurisdiction;
38 HA GP 177-A OPC 169
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(c) whether more of the network for a cross boundary distribution
pipeline is in the jurisdictional area of 1 participating jurisdiction
than in the jurisdictional area of any other participating jurisdiction;
(d) whether 1 participating jurisdiction has greater prospects for growth
5 in the gas market served or to be served by a cross boundary
distribution pipeline than any other participating jurisdiction;
(e) whether the regional economic benefits from competition are likely
to be greater for 1 participating jurisdiction than for any other
participating jurisdiction.
10 15--Pipeline coverage criteria
The pipeline coverage criteria are--
(a) that access (or increased access) to pipeline services provided by
means of the pipeline would promote a material increase in
competition in at least 1 market (whether or not in Australia), other
15 than the market for the pipeline services provided by means of the
pipeline;
(b) that it would be uneconomic for anyone to develop another pipeline
to provide the pipeline services provided by means of the pipeline;
(c) that access (or increased access) to the pipeline services provided by
20 means of the pipeline can be provided without undue risk to human
health or safety;
(d) that access (or increased access) to the pipeline services provided by
means of the pipeline would not be contrary to the public interest.
16--Form of regulation factors
25 The form of regulation factors are--
(a) the presence and extent of any barriers to entry in a market for
pipeline services;
(b) the presence and extent of any network externalities (that is,
interdependencies) between a natural gas service provided by a
30 service provider and any other natural gas service provided by the
service provider;
(c) the presence and extent of any network externalities (that is,
interdependencies) between a natural gas service provided by a
service provider and any other service provided by the service
35 provider in any other market;
(d) the extent to which any market power possessed by a service
provider is, or is likely to be, mitigated by any countervailing market
power possessed by a user or prospective user;
(e) the presence and extent of any substitute, and the elasticity of
40 demand, in a market for a pipeline service in which a service
provider provides that service;
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Schedule--National Gas Law
(f) the presence and extent of any substitute for, and the elasticity of
demand in a market for, electricity or gas (as the case may be);
(g) the extent to which there is information available to a prospective
user or user, and whether that information is adequate, to enable the
5 prospective user or user to negotiate on an informed basis with a
service provider for the provision of a pipeline service to them by the
service provider.
17--Effect of separate and consolidated access arrangements in certain
cases
10 (1) This section applies despite anything to the contrary in this Law.
(2) If, under this Law and the Rules, separate access arrangements are approved
in an applicable access arrangement decision for pipeline services provided,
or to be provided, by means of different parts of a covered pipeline, each part
of the covered pipeline--
15 (a) by which pipeline services are provided; and
(b) to which each separate applicable access arrangement applies,
must to be taken to be a separate covered pipeline for the purposes of this
Law.
(3) If under this Law and the Rules, a single access arrangement is approved in
20 an applicable access arrangement decision for pipeline services provided, or
to be provided, by means of 2 or more covered pipelines, those pipelines must
be taken to be a single covered pipeline for the purposes of this Law.
18--Certain extensions to, or expansion of the capacity of, pipelines to
be taken to be part of a covered pipeline
25 For the purposes of this Law--
(a) an extension to, or expansion of the capacity of, a covered pipeline
must be taken to be part of the covered pipeline; and
(b) the pipeline as extended or expanded must be taken to be a covered
pipeline,
30 if, by operation of the extension and expansion requirements under an
applicable access arrangement, the applicable access arrangement will apply
to pipeline services provided by means of the covered pipeline as extended or
expanded.
19--Expansions of and extensions to covered pipeline by which light
35 regulation services are provided
For the purposes of this Law, an extension to, or expansion of the capacity of,
a covered pipeline by means of which light regulation services (and in respect
of which there is no limited access arrangement) are provided, must be taken
to be part of the covered pipeline unless the AER determines otherwise in
40 writing.
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National Gas Law--Schedule
20--Interpretation generally
Schedule 2 to this Law applies to this Law, the Regulations and the Rules and
any other statutory instrument made under this Law.
Part 2--Participating jurisdictions
5 21--Participating jurisdictions
The State of South Australia, the Commonwealth, each of the States of New
South Wales, Victoria, Queensland, Western Australia and Tasmania, and the
Australian Capital Territory and the Northern Territory are participating
jurisdictions for the purposes of this Law.
10 22--Ministers of participating jurisdictions
The Ministers of the participating jurisdictions are--
(a) the Minister of the Crown in right of South Australia administering
Part 2 of the National Gas (South Australia) Act 2008 of South
Australia; and
15 (b) the Minister of the Crown in right of Western Australia
administering the National Gas Access (Western Australia) Act 2008
of Western Australia; and
(c) the Minister of the Crown in right of the Commonwealth
administering the Australian Energy Market Act 2004 of the
20 Commonwealth; and
(d) the Ministers of the Crown in right of the other participating
jurisdictions administering the laws of those jurisdictions that
substantially correspond to Part 2 of the National Gas (South
Australia) Act 2008 of South Australia.
25 Part 3--National gas objective and principles
Division 1--National gas objective
23--National gas objective
The objective of this Law is to promote efficient investment in, and efficient
operation and use of, natural gas services for the long term interests of
30 consumers of natural gas with respect to price, quality, safety, reliability and
security of supply of natural gas.
Division 2--Revenue and pricing principles
24--Revenue and pricing principles
(1) The revenue and pricing principles are the principles set out in subsections (2)
35 to (7).
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(2) A service provider should be provided with a reasonable opportunity to
recover at least the efficient costs the service provider incurs in--
(a) providing reference services; and
(b) complying with a regulatory obligation or requirement or making a
5 regulatory payment.
(3) A service provider should be provided with effective incentives in order to
promote economic efficiency with respect to reference services the service
provider provides. The economic efficiency that should be promoted
includes--
10 (a) efficient investment in, or in connection with, a pipeline with which
the service provider provides reference services; and
(b) the efficient provision of pipeline services; and
(c) the efficient use of the pipeline.
(4) Regard should be had to the capital base with respect to a pipeline adopted--
15 (a) in any previous--
(i) full access arrangement decision; or
(ii) decision of a relevant Regulator under section 2 of the Gas
Code;
(b) in the Rules.
20 (5) A reference tariff should allow for a return commensurate with the regulatory
and commercial risks involved in providing the reference service to which
that tariff relates.
(6) Regard should be had to the economic costs and risks of the potential for
under and over investment by a service provider in a pipeline with which the
25 service provider provides pipeline services.
(7) Regard should be had to the economic costs and risks of the potential for
under and over utilisation of a pipeline with which a service provider
provides pipeline services.
Division 3--MCE policy principles
30 25--MCE statements of policy principles
(1) Subject to this section, the MCE may issue a statement of policy principles in
relation to any matters that are relevant to the exercise and performance by
the AEMC of its functions and powers in--
(a) making a Rule; or
35 (b) conducting a review under section 83.
(2) Before issuing a statement of policy principles, the MCE must be satisfied
that the statement is consistent with the national gas objective.
(3) As soon as practicable after issuing a statement of policy principles, the MCE
must give a copy of the statement to the AEMC.
42 HA GP 177-A OPC 169
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(4) The AEMC must publish the statement in the South Australian Government
Gazette and on its website as soon as practicable after it is given a copy of the
statement.
Part 4--Operation and effect of National Gas Rules
5 26--National Gas Rules to have force of law
The National Gas Rules have the force of law in this jurisdiction.
Chapter 2--Functions and powers of gas market
regulatory entities
Part 1--Functions and powers of the Australian Energy
10 Regulator
Division 1--General
27--Functions and powers of the AER
(1) The AER has the following functions and powers:
(a) to monitor compliance by persons with this Law, the Regulations and
15 the Rules, including compliance with an applicable access
arrangement, an access determination and a ring fencing decision;
and
(b) to investigate breaches or possible breaches of provisions of this
Law, the Regulations or the Rules, including offences against this
20 Law; and
(c) to institute and conduct proceedings in relation to breaches of
provisions of this Law, the Regulations or the Rules, including
offences against this Law; and
(d) to institute and conduct appeals from decisions in proceedings
25 referred to in paragraph (c); and
(e) AER economic regulatory functions or powers; and
(f) to prepare and publish reports on the financial and operational
performance of service providers in providing pipeline services by
means of covered pipelines; and
30 (g) to approve compliance programs of service providers relating to
compliance by service providers with this Law or the Rules; and
(h) any other functions and powers conferred on it under this Law or the
Rules.
(2) The AER has the power to do all things necessary or convenient to be done
35 for or in connection with the performance of its functions.
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28--Manner in which AER must perform or exercise AER economic
regulatory functions or powers
(1) The AER must, in performing or exercising an AER economic regulatory
function or power, perform or exercise that function or power in a manner
5 that will or is likely to contribute to the achievement of the national gas
objective.
(2) In addition, the AER--
(a) must take into account the revenue and pricing principles--
(i) when exercising a discretion in approving or making those
10 parts of an access arrangement relating to a reference tariff;
or
(ii) when making an access determination relating to a rate or
charge for a pipeline service; and
(b) may take into account the revenue and pricing principles when
15 performing or exercising any other AER economic regulatory
function or power, if the AER considers it appropriate to do so.
(3) For the purposes of subsection (2)(a)(ii), a reference to a "reference service"
in the revenue and pricing principles must be read as a reference to a
"pipeline service".
20 29--Delegations
Any delegation by the AER under section 44AAH of the Trade Practices Act
1974 of the Commonwealth extends to, and has effect for the purposes of, this
Law, the Regulations and the Rules.
30--Confidentiality
25 Section 44AAF of the Trade Practices Act 1974 of the Commonwealth has
effect for the purposes of this Law, the Regulations and the Rules as if it
formed part of this Law.
Note--
See also Chapter 10 Part 2 Division 1.
30 Division 2--Search warrants
31--Definitions
In this Division--
authorised person means a person authorised under section 32;
relevant provision means a provision of this Law, the Regulations or the
35 Rules.
32--Authorised person
(1) The AER may, in writing, authorise a person that the AER considers is
suitably qualified or trained to be an authorised person for the purposes of this
Division.
44 HA GP 177-A OPC 169
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(2) An authorised person must comply with any direction of the AER in
exercising powers or functions as an authorised person.
33--Identity cards
(1) The AER must issue an identity card to an authorised person.
5 (2) The identity card must contain the name, a recent photograph and the
signature of the authorised person.
(3) An authorised person must carry the identity card at all times when exercising
powers or performing functions as an authorised person.
(4) An authorised person must produce his or her identity card for inspection--
10 (a) before exercising a power as an authorised person; or
(b) at any time during the exercise of a power as an authorised person, if
asked to do so.
34--Return of identity cards
If a person to whom an identity card has been issued ceases to be an
15 authorised person, the person must return the identity card to the AER as soon
as practicable.
Maximum penalty: $500
35--Search warrant
(1) An authorised person may apply to a magistrate for the issue of a search
20 warrant in relation to a particular place if the person--
(a) believes on reasonable grounds that--
(i) there is or has been or will be a breach of a relevant
provision; and
(ii) there is or may be a thing or things of a particular kind
25 connected with that breach on or in that place; or
(b) reasonably suspects that--
(i) there may have been a breach of a relevant provision; and
(ii) there is or may be a thing or things of a particular kind
connected with that breach on or in that place.
30 (2) If a magistrate is satisfied by the evidence, on oath or by affidavit, of an
authorised person that there are reasonable grounds for suspecting that there
is, or may be within the next 7 days, a thing or things of a particular kind
connected with a breach or possible breach of a relevant provision on or in a
place, the magistrate may issue a search warrant authorising an authorised
35 person named in the warrant--
(a) to enter the place specified in the warrant, with such assistance and
by the use of such force as is necessary and reasonable;
(b) to search the place or any part of the place;
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(c) to search for and seize a thing named or described in the warrant and
which the person believes on reasonable grounds to be connected
with the breach or possible breach of the relevant provision;
(d) to inspect, examine or record an image of anything in the place;
5 (e) to take extracts from, and make copies of, any documents in the
place;
(f) to take into the place such equipment and materials as the person
requires for exercising the powers.
(3) A search warrant issued under this section must state--
10 (a) the purpose for which the search is required and the nature of the
suspected breach of the relevant provision; and
(b) any conditions to which the warrant is subject; and
(c) whether entry is authorised to be made at any time of the day or night
or during stated hours of the day or night; and
15 (d) a day, not later than 7 days after the issue of the warrant, on which
the warrant ceases to have effect.
(4) Except as provided by this Law, the rules to be observed with respect to
search warrants mentioned in any relevant laws of this jurisdiction extend and
apply to warrants under this section.
20 36--Announcement of entry and details of warrant to be given to
occupier or other person at premises
(1) This section applies if the occupier or another person who apparently
represents the occupier is present at premises when a search warrant is being
executed.
25 (2) The authorised person executing the warrant must--
(a) identify himself or herself to that person; and
(b) announce that he or she is authorised by the warrant to enter the
place; and
(c) before using force to enter, give the person an opportunity to allow
30 entry; and
(d) give the person a copy of the warrant.
(3) The authorised person executing the warrant is not entitled to exercise any
powers under the warrant in relation to premises if the authorised person does
not comply with subsection (2).
35 37--Immediate entry permitted in certain cases
An authorised person executing a warrant need not comply with section 36 if
he or she believes on reasonable grounds that immediate entry to premises is
required to ensure--
(a) the safety of any person; or
40 (b) that the effective execution of the search warrant is not frustrated.
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38--Copies of seized documents
(1) If an authorised person executing a warrant retains possession of a document
seized from a person in accordance with the warrant, the authorised person
must give that other person, within 21 days of the seizure, a copy of the
5 document certified as correct by the authorised person executing the warrant.
(2) A copy of a document certified under subsection (1) shall be received in all
courts and all tribunals as evidence of equal validity to the original.
39--Retention and return of seized documents or things
(1) If an authorised person executing a warrant seizes a document or other thing
10 in accordance with the warrant, the authorised person must if he or she is not
a person employed by the AER, give the document or other thing seized to
the AER.
(2) The AER must take reasonable steps to return the document or thing to the
person from whom it was seized if the reason for its seizure no longer exists.
15 (3) If the document or thing seized has not been returned within 3 months after it
was seized, the AER must take reasonable steps to return it unless--
(a) proceedings for the purpose for which the document or thing was
retained have commenced within that 3 month period and those
proceedings (including any appeal) have not been completed; or
20 (b) a magistrate makes an order under section 40 extending the period
during which the document or thing may be retained.
40--Extension of period of retention of documents or things seized
(1) The AER may apply to a magistrate--
(a) within 3 months after a document or other thing was seized in
25 accordance with a warrant; or
(b) if an extension has been granted under this section, before the end of
the period of the extension,
for an extension of the period for which the AER may retain the document or
thing but so that the total period of retention does not exceed 12 months.
30 (2) An application must be made before proceedings for the purpose for which
the document or thing was retained have been commenced.
(3) A magistrate may order such an extension if he or she is satisfied that--
(a) it is in the interests of justice; and
(b) the total period of retention does not exceed 12 months; and
35 (c) retention of the document or other thing is necessary--
(i) for the purposes of an investigation into whether a breach of
a relevant provision has occurred; or
(ii) to enable evidence of a breach of a relevant provision to be
obtained for the purposes of a proceeding under this Law.
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(4) If proceedings are commenced for the purpose for which the document or
thing was retained at any time before the expiry of the period specified in an
order under this section, the document or thing may be retained until those
proceedings (including any appeal) have been completed despite those
5 proceedings being completed after the period specified in the order.
(5) At least 7 days prior to the hearing of an application under this section by a
magistrate, notice of the application must be sent to the owner of the
document or thing described in the application.
41--Obstruction of persons authorised to enter
10 A person must not, without reasonable excuse, obstruct or hinder an
authorised person in the exercise of a power under a search warrant under this
Division.
Maximum penalty:
(a) in the case of a natural person--$2 000;
15 (b) in the case of a body corporate--$10 000.
Division 3--General information gathering powers
42--Power to obtain information and documents in relation to
performance and exercise of functions and powers
(1) If the AER has reason to believe that a person is capable of providing
20 information or producing a document that the AER requires for the
performance or exercise of a function or power conferred on it under this Law
or the Rules, the AER may, by notice in writing, serve on that person a notice
(a relevant notice).
(2) A relevant notice may require the person to--
25 (a) provide to the AER, by writing signed by that person or, in the case
of a body corporate, by a competent officer of the body corporate,
within the time and in the manner specified in the notice, any
information of the kind referred to in subsection (1); or
(b) produce to the AER, or to a person specified in the notice acting on
30 its behalf, in accordance with the notice, any documents of the kind
referred to in subsection (1).
(3) A person on whom a relevant notice is served must comply with the relevant
notice unless the person has a reasonable excuse.
Maximum penalty:
35 (a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
(4) A person must not, in purported compliance with a relevant notice, provide
information that the person knows is false or misleading in a material
particular.
40 Maximum penalty:
(a) in the case of a natural person--$2 000;
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(b) in the case of a body corporate--$10 000.
(5) It is a reasonable excuse for the purposes of subsection (3) if the person
served the relevant notice is not capable of complying with that notice.
(6) It is a reasonable excuse for a natural person to--
5 (a) fail to provide information of the kind referred to in subsection (1) to
the AER; or
(b) fail to produce a document of the kind referred to in subsection (1) to
the AER, or to a person specified in a relevant notice acting on
behalf of the AER,
10 if to do so might tend to incriminate the person, or make the person liable to a
criminal penalty, under a law of this jurisdiction or a law of another
participating jurisdiction.
(7) It is not a reasonable excuse for a person to--
(a) fail to provide information of the kind referred to in subsection (1) to
15 the AER; or
(b) fail to produce a document of the kind referred to in subsection (1) to
the AER, or to a person specified in a relevant notice acting on
behalf of the AER,
on the ground of any duty of confidence.
20 (8) This section does not require a person to--
(a) provide information that is the subject of legal professional privilege;
or
(b) produce a document the production of which would disclose
information that is the subject of legal professional privilege.
25 (9) This section does not require a person to--
(a) provide information that would disclose the contents of a document
prepared for the purposes of a meeting of the Cabinet or a committee
of the Cabinet of the Commonwealth or of a State or a Territory; or
(b) produce a document prepared for the purposes of a meeting of the
30 Cabinet or a committee of the Cabinet of the Commonwealth or of a
State or a Territory; or
(c) provide information, or produce a document, that would disclose the
deliberations of the Cabinet or a committee of the Cabinet of the
Commonwealth or of a State or a Territory.
35 (10) A person incurs, by complying with a relevant notice, no liability for breach
of contract, breach of confidence or any other civil wrong.
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Division 4--Regulatory information notices and general
regulatory information orders
Subdivision 1--Interpretation
43--Definitions
5 In this Division--
contributing service has the meaning given by section 44;
scheme pipeline service provider means--
(a) a covered pipeline service provider; or
(b) a service provider who provides or intends to provide pipeline
10 services by means of an international pipeline to which a price
regulation exemption applies;
related provider means a person who supplies a contributing service to a
scheme pipeline service provider.
44--Meaning of contributing service
15 (1) A contributing service is a service that the AER, in accordance with this
section, decides is a service that contributes in a material way to the provision
of a pipeline service by a scheme pipeline service provider.
(2) In deciding whether a service is a service that contributes in a material way to
the provision of a pipeline service by a scheme pipeline service provider, the
20 AER must have regard to--
(a) the nature and kind of the service;
(b) when the service was first supplied;
(c) the nature and extent of the contribution of the service relative to--
(i) the pipeline service; and
25 (ii) all other services supplied by the scheme pipeline service
provider;
(d) whether the service was previously supplied--
(i) by the scheme pipeline service provider; or
(ii) directly or indirectly by an associate of the scheme pipeline
30 service provider;
(e) whether the service, together with other services, contributes in a
material way to the provision of pipeline services;
(f) any other matter specified under the Rules.
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45--Meaning of general regulatory information order
A general regulatory information order is an order made by the AER in
accordance with this Division that requires each scheme pipeline service
provider of a specified class, or each related provider of a specified class, to
5 do either or both of the following:
(a) provide to the AER the information specified in the order;
(b) prepare, maintain or keep information specified in the notice in a
manner and form specified in the order.
46--Meaning of regulatory information notice
10 A regulatory information notice is a notice prepared and served by the AER
in accordance with this Division that requires the scheme pipeline service
provider, or a related provider, named in the notice to do either or both of the
following:
(a) provide to the AER the information specified in the notice;
15 (b) prepare, maintain or keep information specified in the notice in a
manner and form specified in the notice.
47--Division does not limit operation of information gathering powers
under Division 3
This Division does not limit the operation of Division 3.
20 Subdivision 2--Serving and making of regulatory information
instruments
48--Service and making of regulatory information instrument
(1) Subject to this Division, the AER, if it considers it reasonably necessary for
the performance or exercise of its functions or powers under this Law or the
25 Rules, may--
(a) serve a regulatory information notice on a scheme pipeline service
provider or a related provider; or
(b) make a general regulatory information order.
(2) In considering whether it is reasonably necessary to serve a regulatory
30 information notice, or make a general regulatory information order, the AER
must have regard to--
(a) the matter to be addressed by--
(i) the service of the regulatory information notice; or
(ii) the making of the general regulatory information order; and
35 (b) the likely costs that may be incurred by an efficient scheme pipeline
service provider or efficient related provider in complying with the
notice or order.
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Note--
The AER must also exercise its powers under this section in a manner that will
or is likely to contribute to the achievement of the national gas objective: see
section 28.
5 (3) A regulatory information notice must not be served, or a general regulatory
information order must not be made, solely for the purpose of--
(a) investigating breaches or possible breaches of provisions of this Law,
the Regulations or the Rules, including offences against this Law; or
(b) instituting and conducting proceedings in relation to breaches of
10 provisions of this Law, the Regulations or the Rules, including
offences against this Law; or
(c) instituting and conducting appeals from decisions in proceedings
referred to in paragraph (b); or
(d) collecting information for the preparation of a service provider
15 performance report; or
(e) any application for review of a decision of the AER under Chapter 8
Part 5.
49--Additional matters to be considered for related provider
regulatory information instruments
20 (1) This section applies if the AER is intending to--
(a) serve a regulatory information notice on a related provider; or
(b) make a general regulatory information order that will apply to a class
of related providers.
(2) In addition to the matters set out in section 48(2), the AER, in considering
25 whether it is reasonably necessary to serve the regulatory information notice,
or make the general regulatory information order, must have regard to--
(a) whether the scheme pipeline service provider being supplied a
contributing service by the related provider or related providers to
which the intended regulatory information instrument will apply
30 can--
(i) provide the information to be specified in that instrument; or
(ii) prepare, maintain or keep the information to be specified in
the particular manner and form to be specified in that
instrument; and
35 (b) the extent to which the related provider or related providers to which
the intended regulatory information instrument will apply is, or are,
supplying a contributing service on a genuinely competitive basis;
and
(c) the nature of any ownership or control between--
40 (i) the scheme pipeline service provider being supplied a
contributing service by a related provider to which the
intended regulatory information instrument will apply; and
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(ii) that related provider; and
(d) the nature of any ownership or control as between different related
providers supplying the contributing service to the scheme pipeline
service provider; and
5 (e) any other matter the AER considers relevant.
(3) For the purposes of subsection (2)(b), in considering whether a contributing
service is being supplied on a genuinely competitive basis, the AER may take
into account--
(a) whether there is effective competition in the market for the supply of
10 the contributing service; and
(b) whether the related provider supplies the contributing service to a
scheme pipeline service provider under a contract, arrangement or
understanding entered into with that scheme pipeline service
provider following a competitive process for the awarding of the
15 right to enter into that contract, arrangement or understanding
involving persons who were not associates of the scheme pipeline
service provider.
50--AER must consult before publishing a general regulatory
information order
20 The AER must, in accordance with the Rules, consult with the public on the
general regulatory information order it intends to make before it makes that
order.
Note--
See also section 65 about what the AER must and may do after receiving submissions.
25 51--Publication requirements for general regulatory information
orders
(1) A general regulatory information order made under section 48(1)(b) must be
published on the AER's website as soon as practicable after it is made.
(2) Notice of the making of a general regulatory information order must be
30 published in a newspaper circulating generally throughout Australia as soon
as practicable after it is made.
52--Opportunity to be heard before regulatory information notice is
served
(1) The AER, before serving a regulatory information notice, must--
35 (a) notify, in writing, the scheme pipeline service provider, or the related
provider, on whom the AER intends to serve the regulatory
information notice of its intention to do so; and
(b) give the scheme pipeline service provider, or the related provider, a
draft of the regulatory information notice it intends to serve.
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(2) If the regulatory information notice to be served is an urgent notice, the AER
must, in a notice under subsection (1)--
(a) identify the regulatory information notice to be served as an urgent
notice; and
5 (b) give its reasons, in writing, why the regulatory information notice to
be served is an urgent notice.
(3) A regulatory information notice is an urgent notice if--
(a) under the notice the AER will require the scheme pipeline service
provider or related provider to provide information to the AER; and
10 (b) that requirement has arisen because the AER considers it must deal
with or address a particular matter or thing in order for it to make an
AER economic regulatory decision; and
(c) the AER considers that, having regard to the time within which it
must make that AER economic regulatory decision, the time within
15 which the AER requires the information is of the essence.
(4) A notice under subsection (1) must--
(a) invite the scheme pipeline service provider, or the related provider,
to make written representations to the AER as to whether the AER
should serve the regulatory information notice on them; and
20 (b) specify the period within which the scheme pipeline service provider,
or the related provider, may make the representations.
(5) The period that must be specified in accordance with subsection (4) must
be--
(a) in the case of an urgent notice to be served--a period of not less than
25 5 business days and not more than 10 business days calculated from
the date of the notice under subsection (1);
(b) in all other cases--a period of at least 20 business days calculated
from the date of the notice under subsection (1).
(6) The AER must consider the written representations made in accordance with
30 a notice under subsection (1) before making its decision in accordance with
this Division to serve the regulatory information notice.
Subdivision 3--Form and content of regulatory information
instruments
53--Form and content of regulatory information instrument
35 (1) A regulatory information instrument--
(a) must specify the information required to be--
(i) provided to the AER;
(ii) prepared, maintained or kept in the particular manner and
form specified in the instrument; and
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(b) may specify the manner and form in which the information described
in the instrument is required to be--
(i) provided to the AER;
(ii) prepared, maintained or kept; and
5 (c) must state the reasons of the AER for requiring the information
described in the instrument to be--
(i) provided to the AER;
(ii) prepared, maintained or kept in the particular manner and
form specified in the instrument; and
10 (d) in the case of an instrument requiring information to be provided to
the AER, must specify when the information must be provided.
(2) In the case of a regulatory information notice, the notice must name the
scheme pipeline service provider or the related provider to whom it applies.
(3) In the case of a general regulatory information order, the order must specify
15 the class of scheme pipeline service provider, or related provider, to whom
the order applies.
54--Further provision about the information that may be described in
a regulatory information instrument
Without limiting section 53(1)(a), the information that may be required to be
20 provided to the AER, or to be prepared, maintained or kept, may include--
(a) historic, current and forecast information (including financial
information);
(b) information that is or may be derived from other information in the
possession or control of the scheme pipeline service provider or the
25 related provider to whom the instrument applies;
(c) information to enable the AER to verify whether the scheme pipeline
service provider to whom the instrument applies is or has been
complying with Chapter 4;
(d) information to enable the AER to verify compliance with any
30 requirements for the allocation of costs between natural gas services
under--
(i) the Rules; or
(ii) an applicable access arrangement.
55--Further provision about manner in which information must be
35 provided to AER or kept
Without limiting section 53(1)(b), a regulatory information instrument may
specify the information specified in the instrument--
(a) be provided to the AER, or prepared, maintained or kept, on an
annual basis or some other basis, including on the occurrence of a
40 specified event or state of affairs;
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(b) be provided to the AER, or prepared, maintained or kept, in
accordance with specified Rules;
(c) be provided to the AER, or prepared, maintained or kept, in
accordance with any document, code, standard, rule, specification or
5 method formulated, issued, prescribed or published by the AER or
any person, authority or body whether--
(i) wholly or partially or as amended by the instrument; or
(ii) as formulated, issued, prescribed or published at the time the
instrument is served or published or at any time before the
10 instrument is served or published; or
(iii) as amended from time to time;
Example--
The AER may require a scheme pipeline service provider to
provide information in a form and manner that complies
15 with relevant accounting standards.
(d) be verified by way of statutory declaration by an officer of the
scheme pipeline service provider, or of a related provider, to whom
the instrument applies;
(e) be audited--
20 (i) by a class of person specified in the instrument before it is
provided to the AER; and
(ii) at the expense of the scheme pipeline service provider or
related provider to whom the instrument applies.
Subdivision 4--Compliance with regulatory information instruments
25 56--Compliance with regulatory information notice that is served
On being served a regulatory information notice, a person named in the notice
must comply with the notice.
57--Compliance with general regulatory information order
(1) On publication of a general regulatory information order in accordance with
30 section 51(1), a person who is a member of the class of person to which a
general regulatory information order applies must comply with the order.
(2) Subsection (1) does not apply to a person who has been given an exemption
under section 58.
58--Exemptions from compliance with general regulatory information
35 order
(1) The AER may exempt a person, or a class of person, from complying with
section 57--
(a) unconditionally or on specified conditions; or
(b) wholly or to the extent as is specified in the exemption.
40 (2) An exemption under this section must be in writing.
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59--Assumptions where there is non-compliance with regulatory
information instrument
(1) This section applies if--
(a) under a regulatory information instrument the AER--
5 (i) requires a scheme pipeline service provider to provide
information to the AER for the purpose of enabling the AER
to make an AER economic regulatory decision relating to
the scheme pipeline service provider; or
(ii) requires a related provider to provide information to the
10 AER that is relevant to the making of an AER economic
regulatory decision relating to a scheme pipeline service
provider; and
(b) the scheme pipeline service provider or related provider--
(i) does not provide the information to the AER in accordance
15 with the applicable regulatory information instrument; or
(ii) provides information that is insufficient (when compared to
what was requested under the applicable regulatory
information instrument).
(2) Without limiting sections 56 and 57 and despite anything to the contrary in
20 this Law or the Rules, the AER--
(a) may make the AER economic regulatory decision on the basis of the
information the AER has at the time it makes that decision; and
(b) in making that decision, may make reasonable assumptions
(including assumptions adverse to the interests of the scheme
25 pipeline service provider) in respect of the matters the information
required under the regulatory information instrument would have
addressed had that information been provided as required.
Subdivision 5--General
60--Providing to AER false and misleading information
30 A person must not, in purported compliance with a regulatory information
instrument requiring the person to provide information to the AER, provide
information to the AER that the person knows is false or misleading in a
material particular.
Maximum penalty:
35 (a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
61--Person cannot rely on duty of confidence to avoid compliance with
regulatory information instrument
(1) A person must not refuse to comply with a regulatory information instrument
40 on the ground of any duty of confidence.
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(2) A person incurs, by complying with a regulatory information instrument, no
liability for breach of contract, breach of confidence or any other civil wrong.
62--Legal professional privilege not affected
A regulatory information instrument, and sections 56 and 57, are not to be
5 taken as requiring a person to--
(a) provide to the AER information that is the subject of legal
professional privilege; or
(b) produce a document to the AER the production of which would
disclose information that is the subject of legal professional
10 privilege.
63--Protection against self-incrimination
(1) It is a reasonable excuse for a natural person to whom section 56 applies not
to comply with a regulatory information notice served on the person requiring
the person to provide information to the AER if to do so might tend to
15 incriminate the person, or make the person liable to a criminal penalty, under
a law of this jurisdiction or another participating jurisdiction.
(2) It is a reasonable excuse for a natural person to whom section 57 applies not
to comply with a general regulatory information order made requiring the
person to provide information to the AER if to do so might tend to
20 incriminate the person, or make the person liable to a criminal penalty, under
a law of this jurisdiction or another participating jurisdiction.
Division 5--Service provider performance reports
64--Preparation of service provider performance reports
(1) Subject to this section, the AER may prepare a report on the financial
25 performance or operational performance of 1 or more scheme pipeline service
providers in providing pipeline services by means of a scheme pipeline.
Note--
The AER may only prepare a report under subsection (1) if the preparation of
the report will or is likely to contribute to the achievement of the national gas
30 objective: see section 28.
(2) A report prepared under this section may--
(a) deal with the financial or operational performance of the scheme
pipeline service provider in relation to--
(i) complying with pipeline service standards; and
35 (ii) standards relating to the provision of pipeline services to
users or end users; and
(iii) the profitability of scheme pipeline service providers in
providing pipeline services; and
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(b) if the AER considers it appropriate, deal with the performance of the
scheme pipeline service provider in relation to other matters or things
if that performance is directly related to the performance or exercise
by the AER of an AER economic regulatory function or power.
5 (3) A report prepared under this section may include--
(a) information provided to the AER by a person in compliance with a
regulatory information instrument; and
(b) in the case of a report dealing with the financial performance of 1 or
more scheme pipeline service providers, a comparison of the
10 profitability of the scheme pipeline service providers to which the
report relates from the provision of pipeline services by them.
(4) Before preparing a report under this section, the AER must, in accordance
with the Rules, consult with the persons or bodies specified by the Rules.
(5) The AER may publish a report prepared under this section on its website.
15 Division 6--Miscellaneous matters
65--Consideration by the AER of submissions or comments made to it
under this Law or the Rules
If, under this Law or the Rules, the AER publishes a notice inviting
submissions in relation to the making of an AER economic regulatory
20 decision, the AER, in making the decision--
(a) must consider every submission it receives within the period
specified in the notice; and
(b) may, but need not, consider a submission it receives after the period
specified in the notice expires.
25 66--Use of information provided under a notice under Division 3 or a
regulatory information instrument
The AER may use information provided to it by a person in compliance with
a notice under section 42 or a regulatory information instrument for any
purpose connected with the performance or exercise of a function or power of
30 the AER under this Law or the Rules.
67--AER to inform certain persons of decisions not to investigate
breaches, institute proceedings or serve infringement notices
(1) If the AER is given information by any person in relation to a breach or a
possible breach of this Law, the Regulations or the Rules by a person but--
35 (a) decides not to investigate that breach or possible breach; or
(b) following an investigation, decides not to--
(i) institute any proceedings under Chapter 8 in respect of that
breach or possible breach; or
(ii) serve an infringement notice in accordance with Chapter 8
40 Part 7 in respect of that breach or possible breach,
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the AER must notify that person of that decision in writing.
(2) This section does not apply if the person gave the information to the AER
anonymously.
68--AER enforcement guidelines
5 (1) The AER may prepare guidelines about the matters it will have regard to
before--
(a) making an application under section 231; or
(b) serving an infringement notice under section 277.
(2) The AER must publish guidelines prepared under subsection (1) on its
10 website.
Part 2--Functions and powers of the Australian Energy
Market Commission
Division 1--General
69--Functions and powers of the AEMC
15 (1) The AEMC has the following functions and powers:
(a) the Rule making functions and powers conferred on it under this Law
and the Regulations;
(b) the market development functions conferred on it under this Law and
the Rules;
20 (c) any other functions and powers conferred on it under this Law and
the Rules.
(2) The AEMC has power to do all things necessary or convenient to be done for
or in connection with the performance of its functions.
70--Delegations
25 Any delegation by the AEMC under section 20 of the Australian Energy
Market Commission Establishment Act 2004 of South Australia extends to,
and has effect for the purposes of, this Law, the Regulations and the Rules.
71--Confidentiality
Section 24 of the Australian Energy Market Commission Establishment
30 Act 2004 of South Australia has effect for the purposes of this Law, the
Regulations and the Rules as if it formed part of this Law.
Note--
See also Chapter 10 Part 2 Division 2.
72--AEMC must have regard to national gas objective
35 In performing or exercising any function or power under this Law, the
Regulations or the Rules, the AEMC must have regard to the national gas
objective.
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73--AEMC must have regard to MCE statements of policy principles in
relation to Rule making and reviews
The AEMC must have regard to any relevant MCE statement of policy
principles--
5 (a) in making a Rule; or
(b) in conducting a review under section 83.
Division 2--Rule making functions and powers of the AEMC
74--Subject matter for National Gas Rules
(1) Subject to this Division, the AEMC, in accordance with this Law and the
10 Regulations, may make Rules, to be known, collectively, as the "National Gas
Rules", for or with respect to--
(a) regulating--
(i) access to pipeline services;
(ii) the provision of pipeline services;
15 (iii) the collection, use, disclosure, copying, recording,
management and publication of information in relation to
natural gas services;
(b) any matter or thing contemplated by this Law, or is necessary or
expedient for the purposes of this Law.
20 Note--
The procedure for the making of a Rule by the AEMC is set out in Chapter 9
Part 3.
(2) Without limiting subsection (1), the AEMC, in accordance with this Law and
the Regulations, may make Rules for or with respect to any matter or thing
25 specified in Schedule 1 to this Law.
(3) Rules made by the AEMC in accordance with this Law and the Regulations
may--
(a) be of general or limited application;
(b) vary according to the persons, times, places or circumstances to
30 which they are expressed to apply;
(c) confer functions or powers on, or leave any matter or thing to be
decided or determined by--
(i) the AER, the AEMC or the Bulletin Board operator; or
(ii) any panel or committee established by the AEMC; or
35 (iii) any other body established, or person appointed, in
accordance with the Rules;
(d) confer rights or impose obligations on any person or a class of person
(other than the AER or the AEMC);
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(e) confer a function on the AER, the AEMC or the Bulletin Board
operator to make or issue guidelines, tests, standards, procedures or
any other document (however described) in accordance with the
Rules, including guidelines, tests, standards, procedures or any other
5 document (however described) that leave any matter or thing to be
determined by the AER, the AEMC or the Bulletin Board operator;
(f) empower or require any person (other than a person referred to in
paragraph (e)) or body to make or issue guidelines, tests, standards,
procedures or any other document (however described) in
10 accordance with the Rules;
(g) apply, adopt or incorporate wholly or partially, or as amended by the
Rules, the provisions of any standard, rule, specification, method or
document (however described) formulated, issued, prescribed or
published by any person, authority or body whether--
15 (i) as formulated, issued, prescribed or published at the time the
Rules are made or at any time before the Rules are made; or
(ii) as amended from time to time;
(h) confer a power of direction on the AER, the AEMC or the Bulletin
Board operator to require a person conferred a right, or on whom an
20 obligation is imposed, under the Rules to comply with--
(i) a guideline, test, standard, procedure or other document
(however described) referred to in paragraph (e) or (f); or
(ii) a standard, rule, specification, method or document
(however described) referred to in paragraph (g);
25 (i) if this section authorises or requires Rules that regulate any matter or
thing, prohibit that matter or thing or any aspect of that matter of
thing;
(j) provide for the review of, or a right of appeal against, a decision or
determination made under the Rules and for that purpose, confer
30 jurisdiction on the Court;
(k) require a form prescribed by or under the Rules, or information or
documents included in, attached to or given with the form, to be
verified by statutory declaration;
(l) in a specified case or class of case, exempt a person or body
35 performing or exercising a function or power, or conferred a right, or
on whom an obligation is imposed, under the Rules or a class of any
such person or body from complying with a provision, or a part of a
provision, of the Rules;
(m) provide for the modification or variation of a provision of the Rules
40 (with or without substitution of a provision of the Rules or a part of a
provision of the Rules) as it applies to a person or body performing
or exercising a function or power, or conferred a right, or on whom
an obligation is imposed, under the Rules or a class of any such
person or body;
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(n) confer an immunity on, or limit the liability of, any person or body
performing or exercising a function or power, or conferred a right, or
on whom an obligation is imposed under the Rules;
(o) contain provisions of a savings or transitional nature consequent on
5 the amendment or revocation of a Rule.
75--Rules relating to MCE or Ministers of participating jurisdictions
require MCE consent
The AEMC must not, without the consent of the MCE, make a Rule that
confers a right or function, or imposes an obligation, on the MCE or a
10 Minister of a participating jurisdiction.
Note--
The term function is defined in clause 10 of Schedule 2 to this Law to include "duty".
76--AEMC must not make Rules that create criminal offences or
impose civil penalties for breaches
15 The AEMC must not make a Rule that--
(a) creates an offence for a breach of a provision of the Rules; or
(b) provides for a criminal penalty or civil penalty for a breach of a
provision of the Rules.
77--Documents etc applied, adopted and incorporated by Rules to be
20 publicly available
(1) The AEMC must make publicly available--
(a) every standard, rule, specification, method or document (however
described) formulated, issued, prescribed or published by any person,
authority or body that is applied, adopted or incorporated by a Rule;
25 and
(b) if a standard, rule, specification, method or document (however
described) formulated, issued, prescribed or published by any person,
authority or body is applied, adopted or incorporated by a Rule as
amended from time to time--any amendment to that standard, rule,
30 specification, method or document.
(2) For the purposes of subsection (1), the AEMC makes a standard, rule,
specification, method or document (however described) formulated, issued,
prescribed or published by any person, authority or body applied, adopted or
incorporated by any Rule publicly available if the AEMC--
35 (a) publishes the standard, rule, specification, method or document on
the AEMC's website; or
(b) specifies a place from which the standard, rule, specification, method
or document may be obtained or purchased (as the case requires).
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Division 3--Committees, panels and working groups of the AEMC
78--Establishment of committees, panels and working groups
The AEMC may establish committees, panels and working groups to--
(a) provide advice on specified aspects of the AEMC's functions; or
5 (b) undertake any other activity in relation to the AEMC's functions as is
specified by the AEMC.
Division 4--MCE directed reviews
79--MCE directions
(1) The MCE may give a written direction to the AEMC that the AEMC conduct
10 a review into--
(a) any matter relating to a market for gas (including services provided
in a market for gas); or
(b) any matter relating to access to pipelines or to pipeline services
provided by means of pipelines; or
15 (c) the operation and effectiveness of the Rules; or
(d) any matter relating to the Rules; or
(e) the effectiveness of competition in a market for gas for the purpose
of giving advice about whether to retain, remove or reintroduce price
controls on prices for retail gas services.
20 (2) A direction given to the AEMC under this section is binding on the AEMC
and must be complied with despite anything to the contrary in the Rules.
(3) A direction given under this section must be published in the South
Australian Government Gazette.
(4) The AEMC must cause a direction given under this section to be published on
25 its website.
80--Terms of reference
(1) The terms of reference of a MCE directed review will be as specified in the
direction given by the MCE.
Example--
30 The terms of reference may require a MCE directed review to be conducted--
(a) about a specific matter within a specified time; or
(b) whenever a specified event occurs; or
(c) on an annual basis.
(2) Without limiting subsection (1), the MCE may in its direction to the AEMC
35 do 1 or more of the following:
(a) require the AEMC to give a report on a MCE directed review to the
MCE within a specified period;
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(b) require the AEMC to make the report on a MCE directed review
publicly available or available to specified persons or bodies;
(c) require the AEMC to make a draft report publicly available or
available to specified persons or bodies during a MCE directed
5 review;
(d) require the AEMC to consider specified matters in the conduct of a
MCE directed review;
(e) require the AEMC to have specified objectives in the conduct of a
MCE directed review which need not be limited by the national gas
10 objective;
(f) require the AEMC to assess a particular matter in relation to services
provided in a market for gas against specified criteria or a specified
methodology;
(g) require the AEMC--
15 (i) to assess a particular matter in relation to services provided
in a market for gas; and
(ii) to develop appropriate and relevant criteria, or an
appropriate and relevant methodology, for the purpose of the
required assessment;
20 (h) give the AEMC other specific directions in respect of the conduct of
a MCE directed review.
81--Notice of MCE directed review
(1) The AEMC must publish notice of a MCE directed review on its website and
in a newspaper circulating generally throughout Australia.
25 (2) The AEMC must publish a further such notice if a term of reference or a
requirement or direction relating to the MCE directed review is varied.
82--Conduct of MCE directed review
Subject to any requirement or direction of the MCE, a MCE directed
review--
30 (a) may be conducted in such manner as the AEMC considers
appropriate; and
(b) may (but need not) involve public hearings.
Division 5--Other reviews
83--Rule reviews by the AEMC
35 (1) The AEMC may conduct a review into--
(a) the operation and effectiveness of the Rules; or
(b) any matter relating to the Rules.
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(2) A review--
(a) may be conducted in such manner as the AEMC considers
appropriate; and
(b) may (but need not) involve public hearings.
5 (3) During the course of a review, the AEMC may--
(a) consult with any person or body that it considers appropriate;
(b) establish working groups to assist it in relation to any aspect, or any
matter or thing that is the subject of, the review;
(c) commission reports by other persons on its behalf on any aspect, or
10 matter or thing that is the subject of, the review;
(d) publish discussion papers or draft reports.
(4) At the completion of a review, the AEMC must--
(a) give a copy of the report to the MCE; and
(b) publish a report or a version of a report from which confidential
15 information has been omitted in accordance with section 331.
Division 6--Miscellaneous matters
84--AEMC must publish and make available up to date versions of
Rules
The AEMC must, at all times--
20 (a) maintain, on its website, a copy of the National Gas Rules, as in
force from time to time; and
(b) make copies of the National Gas Rules, as in force from time to time,
available to the public for inspection at its offices during business
hours.
25 85--Fees
(1) The AEMC may charge a fee specified, or a fee calculated in accordance with
a formula or methodology specified, in the Regulations for services provided
by it in performing or exercising any of its functions or powers under this
Law, the Regulations or the Rules.
30 (2) The fee must not be such as to amount to taxation.
86--Immunity from personal liability of AEMC officials
(1) No personal liability attaches to an AEMC official for an act or omission in
good faith in the performance or exercise, or purported performance or
exercise of a function or power under this Law, the Regulations or the Rules.
35 (2) A liability that would, but for subsection (1), lie against an AEMC official
lies instead against the AEMC.
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(3) In this section--
AEMC official means--
(a) a member of the AEMC;
(b) the chief executive of the AEMC;
5 (c) a member of staff appointed by the AEMC.
Part 3--Functions and powers of Ministers of
participating jurisdictions
87--Functions and powers of Minister of this participating jurisdiction
under this Law
10 (1) The Minister of this participating jurisdiction has the functions and powers
conferred on him or her under this Law, the Regulations or the Rules.
(2) The Minister of this participating jurisdiction has power to do all things
necessary or convenient to be done for or in connection with the performance
of his or her functions.
15 (3) In this section--
Minister of this participating jurisdiction means the Minister that
administers the Act of this jurisdiction that applies this Law as a law of this
jurisdiction.
88--Functions and powers of Commonwealth Minister under this Law
20 (1) The Commonwealth Minister has the functions and powers conferred on him
or her under this Law, the Regulations or the Rules.
(2) The Commonwealth Minister has power to do all things necessary or
convenient to be done for or in connection with the performance of his or her
functions.
25 Part 4--Functions and powers of the NCC
89--Functions and powers of NCC under this Law
(1) The NCC has the functions and powers conferred on it under this Law, the
Regulations or the Rules.
(2) The NCC has power to do all things necessary or convenient to be done for or
30 in connection with the performance of its functions.
90--Confidentiality
(1) The NCC must take all reasonable measures to protect from unauthorised use
or disclosure information given to it in confidence in, or in connection with,
the performance of its functions or the exercise of its powers under this Law,
35 the Regulations or the Rules.
(2) For the purposes of subsection (1), the disclosure of information as required
or permitted by this Law, a law of the Commonwealth, a State or Territory is
taken to be authorised use and disclosure of the information.
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(3) Disclosing information to 1 of the following is authorised use and disclosure
of the information:
(a) the ACCC;
(b) the AER;
5 (c) the ERA;
(d) the AEMC;
(e) any staff or consultant assisting a body mentioned in paragraph (a) to
(d) in performing its functions or exercising its powers;
(f) any other person or body prescribed by the Regulations for the
10 purpose of this paragraph.
(4) A person or body to whom information is disclosed under subsection (3) may
use the information for any purpose connected with the performance of the
functions, or the exercise of the powers, of the person or body.
(5) The NCC may impose conditions to be complied with in relation to
15 information disclosed under subsection (3).
(6) For the purposes of subsection (1), the use or disclosure of information by a
person for the purposes of performing the person's functions, or exercising
the person's powers, as--
(a) a Councillor or a person referred to in section 29M of the Trade
20 Practices Act 1974 of the Commonwealth; or
(b) a person who is authorised to perform or exercise a function or
power of, or on behalf of, the NCC,
is taken to be authorised use and disclosure of the information.
(7) Regulations made for the purposes of this section may specify uses of
25 information and disclosures of information that are authorised uses and
authorised disclosures for the purposes of this section.
(8) Nothing in any of the above subsections limits--
(a) anything else in any of those subsections; or
(b) what may otherwise constitute, for the purposes of subsection (1),
30 authorised use or disclosure of information.
(9) In this section--
Councillor has the same meaning as in the Trade Practices Act 1974 of the
Commonwealth.
Note--
35 See also Chapter 10 Part 2 Division 2.
Part 5--Functions and powers of Tribunal
91--Functions and powers of Tribunal under this Law
(1) The Tribunal has the functions and powers conferred on it under Chapter 8
Part 5 and any Regulations made for the purposes of that Division.
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(2) The Tribunal has power to do all things necessary or convenient to be done
for or in connection with the performance of its functions.
Chapter 3--Coverage and classification of pipelines
Part 1--Coverage of pipelines
5 Division 1--Coverage determinations
92--Application for recommendation that a pipeline be a covered
pipeline
(1) Any person may apply for a determination that a pipeline be a covered
pipeline (a coverage determination).
10 (2) An application for a coverage determination--
(a) is to be made to the NCC in accordance with the Rules; and
(b) must contain the information required by the Rules; and
(c) must be accompanied by the fee prescribed by the Regulations (if
any).
15 93--Application to be dealt with in accordance with the Rules
Subject to section 94, on receiving an application under section 92 the NCC
must deal with it in accordance with the Rules.
94--NCC may defer consideration of application in certain cases
(1) This section applies if an application under section 92 is made in relation to a
20 proposed pipeline after--
(a) an application has been made to the AER under the Rules for the
approval, by the AER, of the tender process for the construction and
operation of the proposed pipeline as a competitive tender process; or
(b) a tender approval decision has been made in respect of the tender
25 process for the construction and operation of the proposed pipeline.
(2) The NCC may defer consideration of whether to make a recommendation in
respect of the application until--
(a) the application for the approval, by the AER, of the tender process
for the construction and operation of the proposed pipeline as a
30 competitive tender process has been rejected by the AER under the
Rules; or
(b) the tender approval decision--
(i) has been revoked under the Rules; or
(ii) has lapsed as provided under the Rules.
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95--NCC coverage recommendation
(1) Subject to sections 94 and 96, the NCC must recommend to the relevant
Minister that the pipeline the subject of the application--
(a) be a covered pipeline; or
5 (b) not be a covered pipeline.
Note--
See also Chapter 3 Part 2 Division 1 Subdivision 1.
(2) A recommendation under this section must--
(a) be made in accordance with this Law and the Rules; and
10 (b) be made within the time specified by the Rules; and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the Rules.
(3) A recommendation under this section may recommend an outcome different
15 from the outcome sought in the application under section 92.
Example--
An applicant may apply for a determination that the whole of a pipeline be a
covered pipeline. The NCC may recommend that only a part of the pipeline the
subject of the application be covered or may recommend that the pipeline not
20 be covered.
(4) A recommendation under this section must be delivered to the relevant
Minister without delay.
96--NCC must not make coverage recommendation if tender approval
decision becomes irrevocable
25 Despite anything to the contrary in this Division, the NCC--
(a) must not make a recommendation under section 95 if the pipeline is
the subject of a tender approval decision that--
(i) has not lapsed as provided under the Rules; or
(ii) is not revoked under the Rules; and
30 (b) must, for the purposes of paragraph (a), treat the application as
having never been made.
97--Principles governing the making of a coverage recommendation
(1) In making a coverage recommendation, the NCC--
(a) must give effect to the pipeline coverage criteria; and
35 (b) in deciding whether or not the pipeline coverage criteria are satisfied
must have regard to the national gas objective.
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(2) The NCC gives effect to the pipeline coverage criteria as follows:
(a) if the NCC is satisfied that all the pipeline coverage criteria are
satisfied in relation to the pipeline--the recommendation must be in
favour of the pipeline being a covered pipeline;
5 (b) if the NCC is not satisfied that all the pipeline coverage criteria are
satisfied in relation to the pipeline--the recommendation must be
against the pipeline being a covered pipeline.
98--Initial classification decision to be made as part of
recommendation
10 (1) The NCC must, as part of a coverage recommendation, classify the pipeline
the subject of an application under section 92 as a transmission pipeline or a
distribution pipeline (an initial classification decision). In doing so, the NCC
must apply the pipeline classification criterion.
(2) The NCC must as part of an initial classification decision--
15 (a) if it classifies the pipeline the subject of the application as a
transmission pipeline--determine whether the transmission pipeline
is also a cross boundary transmission pipeline;
(b) if it classifies the pipeline the subject of the application as a
distribution pipeline--determine whether the distribution pipeline is
20 also a cross boundary distribution pipeline.
(3) The NCC must also determine, as part of an initial classification decision, the
participating jurisdiction with which the pipeline the subject of the
application under section 92 is most closely connected if the NCC determines
the pipeline is also a cross boundary distribution pipeline. In doing so, the
25 NCC must apply the pipeline classification criterion.
99--Relevant Minister's determination on application
(1) On receiving a coverage recommendation, the relevant Minister must decide
whether to make a coverage determination in respect of the pipeline to which
the recommendation relates.
30 (2) The relevant Minister must use his or her best endeavours to make the
decision within 20 business days after receiving the coverage
recommendation.
(3) If the relevant Minister is unable to make the decision within the period
specified under subsection (2), he or she must make the decision as soon as
35 reasonably practicable after the end of the specified period.
(4) The relevant Minister, for the purpose of making the decision, may request
submissions or comments in relation to an application under section 92.
(5) A coverage determination or a decision not to make a coverage determination
must--
40 (a) be made in accordance with this Law and the Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
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(d) be made publicly available in accordance with the Rules.
(6) In the case of a coverage determination, the determination must specify the
date the determination takes effect.
(7) A coverage determination may have an outcome different to the outcome--
5 (a) sought in the application under section 92; or
(b) of the coverage recommendation.
Example--
An applicant may apply for a determination that the whole of a pipeline be a
covered pipeline. The NCC may recommend that only a part of the pipeline the
10 subject of the application be covered. The relevant Minister may determine that
different parts of the pipeline to those recommended by the NCC be covered.
100--Principles governing the making of a coverage determination or
decision not to do so
(1) In deciding whether to make a coverage determination under this Division,
15 the relevant Minister--
(a) must give effect to the pipeline coverage criteria; and
(b) in deciding whether or not the pipeline coverage criteria are satisfied
in relation to the pipeline--
(i) must have regard to the national gas objective; and
20 (ii) must have regard to the coverage recommendation; and
(iii) must take into account any submissions or comments he or
she receives on a request under section 99(4); and
(iv) may take into account any relevant submissions and
comments made to the NCC by the public under the Rules in
25 relation to the application.
(2) The relevant Minister gives effect to the pipeline coverage criteria as follows:
(a) if the relevant Minister is satisfied that all the pipeline coverage
criteria are satisfied in relation to the pipeline--the Minister must
make a coverage determination;
30 (b) if the relevant Minister is not satisfied that all the pipeline coverage
criteria are satisfied in relation to the pipeline--the Minister must not
make a coverage determination.
101--Operation and effect of coverage determination
The pipeline the subject of a coverage determination becomes a covered
35 pipeline--
(a) when the coverage determination takes effect; and
(b) continues to be a covered pipeline while the coverage determination
remains in effect.
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Division 2--Coverage revocation determinations
102--Application for a determination that a pipeline no longer be a
covered pipeline
(1) Any person may apply for a determination that a covered pipeline no longer
5 be a covered pipeline (a coverage revocation determination).
(2) An application for a coverage revocation determination--
(a) is to be made to the NCC in accordance with the Rules; and
(b) must contain the information required by the Rules; and
(c) must be accompanied by the fee prescribed by the Regulations (if
10 any).
103--Application to be dealt with in accordance with the Rules
On receiving an application under section 102, the NCC must deal with it in
accordance with the Rules.
104--NCC coverage revocation recommendation
15 (1) The NCC must make a recommendation to the relevant Minister as to
whether the covered pipeline the subject of the application should continue to
be a covered pipeline.
Note--
See also section 119.
20 (2) A recommendation under this section must--
(a) be made in accordance with this Law and the Rules; and
(b) be made within the time specified by the Rules; and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
25 (e) be made publicly available in accordance with the Rules.
(3) A recommendation under this section may recommend an outcome different
from the outcome sought in the application under section 102.
Example--
A service provider may apply for a determination that revokes the coverage of
30 the covered pipeline by means of which the provider provides pipeline services.
The NCC may recommend that the coverage of the covered pipeline be only
partly revoked or not be revoked.
(4) A recommendation under this section must be delivered to the relevant
Minister without delay.
35 105--Principles governing the making of a coverage revocation
recommendation
(1) In making a coverage revocation recommendation, the NCC--
(a) must give effect to the pipeline coverage criteria; and
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(b) in deciding whether or not the pipeline coverage criteria are satisfied
must have regard to the national gas objective.
(2) The NCC gives effect to the pipeline coverage criteria as follows:
(a) if the NCC is satisfied that all the pipeline coverage criteria are
5 satisfied in relation to the pipeline--the recommendation must be in
favour of the pipeline continuing to be a covered pipeline;
(b) if the NCC is not satisfied that all the pipeline coverage criteria are
satisfied in relation to the pipeline--the recommendation must be in
favour of the pipeline no longer being a covered pipeline.
10 106--Relevant Minister's determination on application
(1) On receiving a coverage revocation recommendation, the relevant Minister
must decide whether to make a coverage revocation determination in respect
of the pipeline to which the recommendation relates.
(2) The relevant Minister must use his or her best endeavours to make the
15 decision within 20 business days after receiving the coverage revocation
recommendation.
(3) If the relevant Minister is unable to make the decision within the period
specified under subsection (2), he or she must make the decision as soon as
reasonably practicable after the end of the specified period.
20 (4) The relevant Minister, for the purpose of making the decision, may request
submissions or comments in relation to an application under section 102.
(5) A coverage revocation determination or a decision not to make a coverage
revocation determination must--
(a) be made in accordance with this Law and the Rules; and
25 (b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
(6) In the case of a coverage revocation determination, the determination must
specify the date the determination takes effect.
30 (7) A coverage revocation determination may have an outcome different to the
outcome--
(a) sought in the application under section 102; or
(b) of the coverage revocation recommendation.
Example--
35 A service provider may apply for a determination that revokes the coverage of
the covered pipeline by means of which the provider provides pipeline services.
The NCC may recommend that the coverage of the covered pipeline be only
partly revoked. The relevant Minister may make a determination that revokes
coverage of different parts of the covered pipeline to those parts in relation to
40 which the NCC recommended coverage be revoked.
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107--Principles governing the making of a coverage revocation
determination or decision not to do so
(1) In deciding whether to make a coverage revocation determination under this
Division, the relevant Minister--
5 (a) must give effect to the pipeline coverage criteria; and
(b) in deciding whether or not the pipeline coverage criteria are satisfied
in relation to the pipeline--
(i) must have regard to the national gas objective; and
(ii) must have regard to the coverage revocation
10 recommendation; and
(iii) must take into account any submissions or comments he or
she receives on a request under section 106(4); and
(iv) may take into account any relevant submissions and
comments made to the NCC by the public under the Rules in
15 relation to the application.
(2) The relevant Minister gives effect to the pipeline coverage criteria as follows:
(a) if the relevant Minister is satisfied that all the pipeline coverage
criteria are satisfied in relation to the pipeline--the Minister must not
make a coverage revocation determination;
20 (b) if the relevant Minister is not satisfied that all the pipeline coverage
criteria are satisfied in relation to the pipeline--the Minister must
make a coverage revocation determination.
108--Operation and effect of coverage revocation determination
The pipeline the subject of a coverage revocation determination ceases to be a
25 covered pipeline when the coverage revocation determination takes effect.
Part 2--Light regulation of covered pipeline services
Division 1--Making of light regulation determinations
Subdivision 1--Decisions when pipeline is not a covered pipeline
109--Application of Subdivision
30 This Subdivision applies if--
(a) an application has been made under section 92 for a coverage
determination; and
(b) the pipeline the subject of the application is not a designated
pipeline.
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110--NCC's decision on light regulation of pipeline services
(1) The NCC must decide whether to make a determination that the pipeline
services provided or to be provided by means of the pipeline are light
regulation services (a light regulation determination).
5 (2) The NCC must make its decision under subsection (1)--
(a) at the same time as it makes the coverage recommendation; and
(b) within the time it must make the coverage recommendation.
(3) A light regulation determination or a decision not to make a light regulation
determination must--
10 (a) be made in accordance with this Law and the Rules; and
Note--
For example, see section 122.
(b) be attached to the coverage recommendation; and
(c) contain the information required by the Rules.
15 Note--
If the NCC makes a light regulation determination, and the relevant Minister makes the
coverage determination, the service provider may submit a limited access arrangement in
respect of the light regulation services to the AER for approval: see section 116.
Subdivision 2--Decisions when pipeline is a covered pipeline
20 111--Application of Subdivision
This Subdivision applies if a service provider provides pipelines services--
(a) by means of a covered pipeline that is not a designated pipeline; and
(b) to which an applicable access arrangement approved or made under a
full access arrangement decision applies.
25 112--Application
(1) A service provider may apply to the NCC for a determination that pipeline
services provided by the service provider by means of a covered pipeline be
light regulation services (a light regulation determination).
(2) An application must--
30 (a) be in accordance with the Rules; and
(b) contain the information required by the Rules.
(3) An application may only be made in respect of all of the pipeline services
provided by means of the covered pipeline.
113--Application to be dealt with in accordance with the Rules
35 On receiving an application under section 112, the NCC must deal with it in
accordance with the Rules.
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114--NCC's decision on light regulation of pipeline services
(1) The NCC must decide whether to make a light regulation determination
within--
(a) 4 months after receiving an application under section 112; or
5 (b) if the Rules specify a later period, that period.
(2) A light regulation determination or a decision not to make a light regulation
determination must--
(a) be made in accordance with this Law and the Rules; and
Note--
10 For example, see section 122.
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
Note--
15 If the NCC makes a light regulation determination, the service provider may submit a
limited access arrangement in respect of the light regulation services to the AER for
approval: see section 116.
Subdivision 3--Operation and effect of light regulation determinations
115--When light regulation determinations take effect
20 (1) A light regulation determination takes effect--
(a) in the case of a light regulation determination made under
Subdivision 1--on the day the relevant coverage determination takes
effect;
(b) in the case of a light regulation determination made under
25 Subdivision 2--60 business days after the light regulation
determination is made.
(2) A light regulation determination continues in operation until--
(a) it is revoked by operation of section 117(5); or
(b) a decision under section 119(2) or 120 takes effect; or
30 (c) it is revoked by operation of section 123(2); or
(d) it is revoked by operation of section 124.
116--Submission of limited access arrangement for light regulation
services
(1) A service provider may, in respect of light regulation services the service
35 provider provides or intends to provide, submit a limited access arrangement
to the AER for approval by the AER under the Rules.
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(2) If the service provider chooses to submit a limited access arrangement in
accordance with subsection (1), the limited access arrangement must--
(a) be submitted in accordance with the Rules; and
(b) contain the information required by the Rules.
5 (3) A service provider must submit to the AER, for approval by the AER under
the Rules, revisions to an applicable access arrangement that is a limited
access arrangement and that applies to the light regulation services the
provider provides--
(a) in accordance with the Rules; and
10 (b) within the period specified by the Rules.
Division 2--Revocation of light regulation determinations
Subdivision 1--On advice from service providers
117--Advice by service provider that light regulation services should
cease to be light regulation services
15 (1) A service provider may advise the NCC that it wishes that the pipeline
services it provides cease to be light regulation services.
(2) An advice under subsection (1) must be in writing.
(3) On receiving an advice under subsection (1), the NCC must, without delay,
publish notice of receipt of that advice--
20 (a) on its website; and
(b) in a newspaper circulating generally throughout Australia.
(4) On publication of a notice under subsection (3) the service provider must
comply with section 132.
(5) The light regulation determination applying to the pipeline services is, by
25 force of this section, revoked on the same day that an access arrangement that
applies to the pipeline services provided by that service provider is, as the
case requires, approved or made under a full access arrangement decision.
(6) On the revocation of the light regulation determination the pipeline services
to which the light regulation determination applied cease to be light
30 regulation services.
Subdivision 2--On application by persons other than service providers
118--Application (other than by service provider) for revocation of
light regulation determinations
(1) A person (other than the service provider who provides light regulation
35 services) may apply to the NCC for the revocation of a light regulation
determination relating to those services.
(2) An application under subsection (1) must--
(a) be in accordance with the Rules; and
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(b) contain the information required by the Rules.
119--Decisions on applications made around time of applications for
coverage revocation determinations
(1) This section applies if an application is made under section 118 and--
5 (a) there is an application for a coverage revocation determination under
section 102 under consideration--
(i) in respect of the covered pipeline by means of which the
light regulation services the subject of the application under
section 118 are provided; and
10 (ii) in respect of which the NCC has not made a coverage
revocation recommendation; or
(b) an application for a coverage revocation determination is made under
section 102 in respect of the covered pipeline by means of which the
light regulation services the subject of the application under
15 section 118 are provided--
(i) after the application under section 118; but
(ii) before the NCC makes its decision in respect of the
application under section 118.
(2) Despite anything to the contrary in this Part, the NCC must make its decision
20 in respect of the application under this section.
(3) On receiving the application under section 118, the NCC must decide whether
to revoke the light regulation determination.
(4) The NCC must make its decision under subsection (3)--
(a) at the same time as it makes the coverage revocation
25 recommendation; and
(b) within the time it must make the coverage revocation
recommendation.
(5) A decision under subsection (3) must--
(a) be made in accordance with this Law and the Rules; and
30 Note--
For example, see section 122.
(b) be attached to the coverage revocation recommendation; and
(c) contain the information required by the Rules.
120--NCC decision on application where no application for a coverage
35 revocation recommendation
(1) This section applies if--
(a) an application is made under section 118; and
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(b) no application for a coverage revocation determination in respect of
the covered pipeline (by means of which the light regulation services
the subject of the application under section 118) are provided is
made before the NCC makes its decision in respect of the application
5 under section 118.
(2) Subject to this section, on receiving an application under section 118 the NCC
must deal with it in accordance with the Rules.
(3) The NCC must decide whether to revoke a light regulation determination
within--
10 (a) 4 months after receiving an application under section 118; or
(b) if the Rules specify a later period, that period.
(4) A decision under this section must--
(a) be made in accordance with this Law and the Rules; and
Note--
15 For example, see section 122.
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
121--Operation and effect of decision of NCC under this Division
20 (1) Subject to section 124, on the making of a decision under section 119(2) or
120 revoking a light regulation determination, the service provider must
comply with section 132.
(2) However, the decision under section 119(2) or 120 revoking a light regulation
determination does not take effect until an access arrangement that applies to
25 the pipeline services provided by that service provider is approved or made
under a full access arrangement decision.
(3) The effect of a decision under section 119(2) or 120 revoking a light
regulation determination is that the pipeline services to which the light
regulation determination applied cease to be light regulation services.
30 Division 3--Principles governing light regulation determinations
122--Principles governing the making or revoking of light regulation
determinations
(1) In deciding whether to make a light regulation determination under Division 1
or to revoke a light regulation determination under Division 2, the NCC must
35 consider--
(a) the likely effectiveness of the forms of regulation provided for under
this Law and the Rules to regulate the provision of the pipeline
services (the subject of the application) to promote access to pipeline
services; and
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(b) the effect of the forms of regulation provided for under this Law and
the Rules on--
(i) the likely costs that may be incurred by an efficient service
provider; and
5 (ii) the likely costs that may be incurred by efficient users and
efficient prospective users; and
(iii) the likely costs of end users.
Note--
The forms of regulation provided for under this Law and the Rules to regulate
10 the provision of the pipeline services by means of a covered pipeline are--
(a) making a light regulation determination so that those services become
light regulation services;
(b) not making a light regulation determination so that those services are
regulated under a full access arrangement decision that approves or
15 makes the applicable access arrangement that applies to those
services.
(2) In doing so, the NCC--
(a) must have regard to the national gas objective; and
(b) must have regard to the form of regulation factors; and
20 (c) may have regard to any other matters it considers relevant.
Division 4--Revocation if coverage determination not made
123--Light regulation determination revoked if coverage determination
not made
(1) This section applies if--
25 (a) a light regulation determination has been made in respect of pipeline
services; but
(b) the pipeline by means of which those services will be provided does
not become a covered pipeline because the relevant Minister,
contrary to a coverage recommendation recommending coverage,
30 makes a decision not to make a coverage determination.
(2) The light regulation determination is, by force of this section, revoked on the
same day as the relevant Minister's decision not to make a coverage
determination takes effect.
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Division 5--Effect of pipeline ceasing to be covered pipeline
124--Light regulation services cease to be such services on cessation of
coverage of pipeline
If a pipeline by means of which light regulation services are provided ceases
5 to be a covered pipeline because of a coverage revocation determination--
(a) the light regulation determination applying to the light regulation
services provided by means of that pipeline is, by force of this
section, revoked on the same day the coverage revocation
determination takes effect; and
10 (b) to avoid doubt, the light regulation services to which that
determination applied cease to be light regulation services on the
same day.
Division 6--AER reviews into designated pipelines
125--AER reviews
15 (1) The MCE may request the AER to conduct a review into, and report to it as
to, whether a pipeline should continue to be a designated pipeline.
(2) A service provider that provides pipeline services by means of a designated
pipeline may request the AER to conduct a review into, and report to the
MCE as to, whether that pipeline should continue to be a designated pipeline.
20 (3) A request under subsection (1) or (2) must be in writing.
(4) On receiving a request under this section, the AER must conduct a review as
to whether the pipeline the subject of the request should continue to be a
designated pipeline.
(5) In conducting a review under this section, the AER must--
25 (a) have regard to--
(i) the national gas objective; and
(ii) whether there has been a material change in competition in a
market served by the designated pipeline; and
(b) consult, in accordance with the Rules, with the public.
30 (6) On the completion of a review under this section, the AER must prepare a
report and--
(a) give the report to the MCE; and
(b) publish the report on its website.
(7) The AER must also give a copy of the report to the service provider that has
35 requested the review.
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Part 3--Coverage of pipelines the subject of tender
process
126--Tender approval pipelines deemed to be covered pipelines
(1) A pipeline to which a tender approval decision relates is deemed to be a
5 covered pipeline on and from the date the tender approval decision becomes
irrevocable by operation of the Rules.
(2) The pipeline ceases to be a covered pipeline--
(a) if there is an applicable access arrangement that applies to the
pipeline services provided, or that are to be provided by means of
10 that pipeline--when that arrangement expires; or
(b) when a coverage revocation determination made in respect of that
pipeline takes effect.
Note--
Under the Rules, the NCC will--
15 (a) classify the pipeline to be constructed and operated in accordance
with an approved tender process as a cross boundary transmission
pipeline, cross boundary distribution pipeline, transmission pipeline
or distribution pipeline; and
(b) determine the relevant Minister for the purposes of that pipeline.
20 Part 4--Coverage following approval of voluntary access
arrangement
127--Certain pipelines become covered pipelines on approval of
voluntary access arrangement
(1) This section applies if--
25 (a) a service provider voluntarily submits to the AER for approval by the
AER, under the Rules, a full access arrangement that will apply to
the pipeline services provided, or that are to be provided, by means
of a pipeline; and
(b) that pipeline is not a covered pipeline.
30 (2) The pipeline is deemed to be a covered pipeline on the day the voluntarily
submitted full access arrangement takes effect as an applicable access
arrangement.
(3) The pipeline ceases to be a covered pipeline--
(a) when the applicable access arrangement that applies to the pipeline
35 services provided, or that are to be provided, expires; or
(b) when a coverage revocation determination is made in respect of that
pipeline takes effect.
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Note--
Under the Rules, the NCC will--
(a) classify the pipeline (by means of which the pipeline services to which the
arrangement relates are provided) as a cross boundary transmission pipeline,
5 cross boundary distribution pipeline, transmission pipeline or distribution
pipeline; and
(b) determine the relevant Minister for the purposes of that pipeline.
Part 5--Reclassification of pipelines
128--Service provider may apply for reclassification of pipeline
10 (1) A service provider may, in respect of a pipeline by means of which the
service provider provides pipeline services, apply to the NCC for the pipeline
to be reclassified as--
(a) if the pipeline is a transmission pipeline--a distribution pipeline; or
(b) if the pipeline is a distribution pipeline--a transmission pipeline.
15 (2) The application must be accompanied by the fee prescribed by the
Regulations (if any).
129--Reclassification decision
(1) The NCC must make a decision (a reclassification decision) within--
(a) 4 months after receiving an application under section 128; or
20 (b) if the Rules specify a later period, that period.
(2) A reclassification decision must--
(a) be made in accordance with this Law and the Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
25 (d) be made publicly available in accordance with the Rules.
(3) In making a reclassification decision, the NCC must have regard to--
(a) the national gas objective; and
(b) the pipeline classification criterion.
(4) The NCC must also as part of the reclassification decision--
30 (a) if it reclassifies the pipeline the subject of the application as a
transmission pipeline--determine whether the transmission pipeline
is also a cross boundary transmission pipeline;
(b) if it reclassifies the pipeline the subject of the application as a
distribution pipeline--determine whether the distribution pipeline is
35 also a cross boundary distribution pipeline.
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(5) If, under subsection (4), the NCC determines that a pipeline reclassified as a
distribution pipeline is also a cross boundary distribution pipeline, the NCC
must determine the participating jurisdiction with which the cross boundary
distribution pipeline is most closely connected. In doing so, the NCC must
5 have regard to the jurisdictional determination criteria.
130--Effect of reclassification decision
On the making of a reclassification decision--
(a) the pipeline is, in accordance with the decision, reclassified as either
a transmission pipeline or distribution pipeline; and
10 (b) the relevant Minister in respect of the pipeline is the relevant
Minister as provided under this Law.
Chapter 4--General requirements for provision of
covered pipeline services
Part 1--General duties for provision of pipeline services
15 by covered pipelines
131--Service provider must be legal entity of a specified kind to
provide pipeline services by covered pipeline
A covered pipeline service provider must not provide a pipeline service by
means of a covered pipeline unless the service provider is--
20 (a) a legal entity registered under the Corporations Act 2001 of the
Commonwealth; or
(b) a foreign company; or
(c) a corporation established by or under a law of this jurisdiction or
another participating jurisdiction, whether or not that corporation has
25 been established for a public purpose; or
(d) the Crown in right of this jurisdiction or another participating
jurisdiction; or
(e) a person referred to in paragraph (a) to (d) and that person provides a
pipeline service by means of a covered pipeline together with another
30 person referred to in paragraph (a) to (d).
132--Submission of full access arrangement or revisions to applicable
full access arrangements
(1) A covered pipeline service provider must submit to the AER, for approval by
the AER under the Rules, a full access arrangement or revisions to an
35 applicable access arrangement that is a full access arrangement, in respect of
the pipeline services the provider provides or intends to provide--
(a) in the circumstances specified by the Rules; and
(b) within the period of time specified by the Rules.
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(2) Subsection (1) does not apply--
(a) if the pipeline services that are, or are intended to be, provided by the
service provider light regulation services; or
(b) to the extent the Rules provide subsection (1) is not to apply.
5 Note--
A service provider who provides or intends to provide pipeline services by means of an
international pipeline to which a price regulation applies must submit a limited access
arrangement to the AER for approval: see section 168.
133--Preventing or hindering access
10 (1) A person who is--
(a) a covered pipeline service provider; or
(b) a person who--
(i) is a party to an agreement with a service provider relating to
a pipeline service provided by means of a covered pipeline;
15 or
(ii) as a result of an access determination is entitled to a pipeline
service provided by means of a covered pipeline; or
(c) an associate of a service provider or a person referred to in
paragraph (b),
20 must not engage in conduct for the purpose of preventing or hindering the
access of another person to a pipeline service provided by means of the
covered pipeline.
(2) For the purposes of subsection (1), a person is deemed to engage in conduct
for a particular purpose if--
25 (a) the conduct is or was engaged in for that purpose or for a purpose
that includes, or included, that purpose; and
(b) that purpose is or was a substantial purpose.
(3) A person may be taken to have engaged in conduct for the purpose referred to
in subsection (1) even though, after all the evidence has been considered, the
30 existence of that purpose is ascertainable only by inference from the conduct
of the person or of any other person or from other relevant circumstances.
(4) Subsection (3) does not limit the manner in which the purpose of a person
may be established for the purpose of subsection (1).
(5) In this section--
35 (a) a reference to engaging in conduct is a reference to doing or refusing
to do any act, including refusing to supply a pipeline service or,
without reasonable grounds, limiting or disrupting a pipeline service,
or making, or giving effect to, a provision of, a contract or
arrangement, arriving at, or giving effect to, a provision of, an
40 understanding or requiring the giving of, or giving, a covenant;
(b) a reference to refusing to do an act includes a reference to--
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(i) refraining (otherwise than inadvertently) from doing that
act; or
(ii) making it known that that act will not be done.
(6) Subsection (1) does not apply to conduct engaged in in accordance with an
5 agreement, if the agreement was in force on 30 March 1995.
Example--
An example of conduct which may be prohibited if the requisite purpose is established is
refusing to supply, or limiting or disrupting the supply of, a pipeline service to a user or
prospective user for technical or safety reasons without reasonable grounds.
10 134--Supply and haulage of natural gas
(1) If a producer states terms and conditions (whether or not including the price)
(the first terms) on which the producer offers to supply natural gas through a
covered pipeline that is in operation at the time of the offer to a person at a
place other than the exit flange of the producer's processing plant, the
15 producer must, on request by the person, state terms and conditions (including
the price, if the price was included in the first terms) (the second terms) on
which the producer will supply natural gas to the person at the exit flange.
(2) If there is a difference in the price stated in the first terms and the second
terms, the producer must include in the second terms a statement of the
20 reasons for the difference.
(3) If the producer offers to supply natural gas to a person at a place other than
the exit flange of the producer's processing plant, the producer must, on
request, offer to supply the gas at the exit flange on the terms and conditions
(including price) stated in accordance with this section.
25 135--Covered pipeline service provider must comply with queuing
requirements
A covered pipeline service provider must comply with the queuing
requirements of an applicable access arrangement.
136--Covered pipeline service provider providing light regulation
30 services must not price discriminate
(1) A covered pipeline service provider must not engage in price discrimination
when providing light regulation services.
(2) Subsection (1) does not apply if the covered pipeline service provider engages
in price discrimination that is conducive to efficient service provision.
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Part 2--Structural and operational separation
requirements (ring fencing)
Division 1--Interpretation
137--Definitions
5 In this Part--
additional ring fencing requirement has the meaning given by
section 143(1);
compliance date means the date that is 6 months after the date a pipeline
becomes a covered pipeline;
10 marketing staff has the meaning given by section 138;
related business means the business of producing, purchasing or selling
natural gas or processable gas, but does not include purchasing or selling of
natural gas or processable gas to the extent necessary--
(a) for the safe and reliable operation of a covered pipeline; or
15 (b) to enable a service provider to provide balancing services in
connection with a covered pipeline.
138--Meaning of marketing staff
(1) A person is marketing staff of--
(a) a covered pipeline service provider, if the person--
20 (i) is an officer, employee, consultant or independent contractor
or agent of the covered pipeline service provider; and
(ii) is directly involved in the sale, marketing or advertising of
pipeline services (whether or not the person is also involved
in other activities);
25 (b) an associate of a covered pipeline service provider, if the person--
(i) is an officer, employee, consultant or independent contractor
or agent of the associate; and
(ii) is directly involved in the sale, marketing or advertising of
pipeline services (whether or not the person is also involved
30 in other activities).
(2) A person is not marketing staff of a covered pipeline service provider, or an
associate of a covered pipeline service provider, if--
(a) the person's function or role (as an officer, employee, consultant or
independent contractor or agent of a covered pipeline service
35 provider, or an associate of a covered pipeline service provider) is
only to provide technical, administrative, legal and accounting
services to that provider or associate; or
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(b) the sale, marketing or advertising of pipeline services is only an
incidental part of the person's function or role (as an officer,
employee, consultant or independent contractor or agent of a covered
pipeline service provider, or an associate of a covered pipeline
5 service provider).
Example--
A person in the position of general manager of marketing of a covered pipeline service
provider or an associate of a covered pipeline service provider would be marketing staff
whereas a person in the position of chief executive officer, or chief financial officer, of a
10 covered pipeline service provider or an associate of a covered pipeline service provider
would not be marketing staff.
Division 2--Minimum ring fencing requirements
139--Carrying on of related businesses prohibited
On and after the compliance date, a covered pipeline service provider must
15 not carry on a related business.
140--Marketing staff and the taking part in related businesses
(1) On and after the compliance date, a covered pipeline service provider must
ensure that none of its marketing staff are officers, employees, consultants,
independent contractors or agents of an associate of the covered pipeline
20 service provider that takes part in a related business.
(2) On and after the compliance date, a covered pipeline service provider must
ensure that none of its officers, employees, consultants, independent
contractors or agents are marketing staff of an associate of the covered
pipeline service provider that takes part in a related business.
25 141--Accounts that must be prepared, maintained and kept
On and after the compliance date, a covered pipeline service provider must
prepare, maintain and keep--
(a) separate accounts in respect of pipeline services provided by means
of every covered pipeline owned, operated or controlled by the
30 covered pipeline service provider; and
(b) a consolidated set of accounts in respect of the whole of the business
of the covered pipeline service provider.
Division 3--Additional ring fencing requirements
142--Division does not limit operation of Division 2
35 This Division does not limit Division 2.
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143--AER ring fencing determinations
(1) Subject to this Division and subject to and in accordance with the Rules, the
AER may make a determination requiring a covered pipeline service provider
or associate of a covered pipeline service provider named in the determination
5 to do, or refrain from doing, a thing specified in the determination (an
additional ring fencing requirement).
(2) In specifying an additional ring fencing requirement the AER must have
regard to the following principles:
(a) in the case where 1 part of the business of a covered pipeline service
10 provider (business unit A) is providing pipeline services to another
part of the business of the covered pipeline service provider
(business unit B), the covered pipeline service provider must ensure
that business unit A provides the pipeline services to business unit B
as if business unit B were a separate unrelated entity;
15 (b) in the case where a covered pipeline service provider is providing
pipeline services to an associate of the service provider, the covered
pipeline service provider must ensure that those services are
provided as if the associate of the covered pipeline service provider
were a separate unrelated entity;
20 (c) users and prospective users should have sufficient information in
order to understand whether a covered pipeline service provider is
complying with paragraph (a) or (b).
(3) The AER must--
(a) notify, in writing, the covered pipeline service provider or associate
25 named in the AER ring fencing determination of the making of that
determination; and
(b) give the covered pipeline service provider or associate a copy of the
AER ring fencing determination.
(4) An AER ring fencing determination must specify the date on and after which
30 the covered pipeline service provider or associate of a covered pipeline
service provider must do, or refrain from doing, a thing specified in the
determination (a notified compliance date).
(5) A notified compliance date must not be a date that is earlier than 10 business
days after the date the covered pipeline service provider or associate of a
35 covered pipeline service provider is given a copy of the AER ring fencing
determination.
(6) A covered pipeline service provider or associate of a covered pipeline service
provider must comply with every additional ring fencing requirement
specified in an AER ring fencing determination on and after the notified
40 compliance date.
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144--AER to have regard to likely compliance costs of additional ring
fencing requirements
In making an AER ring fencing determination the AER must have regard to
the likely costs that may be incurred by, as the case requires--
5 (a) an efficient covered pipeline service provider; or
(b) an efficient associate of a covered pipeline service provider,
in complying with an additional ring fencing requirement specified in the
determination.
145--Types of ring fencing requirements that may be specified in an
10 AER ring fencing determination
Without limiting what may be specified as an additional ring fencing
requirement, the AER, in an AER ring fencing determination, may require a
covered pipeline service provider to--
(a) ensure that its business and business activities are conducted,
15 structured and arranged in the particular manner specified;
Example 1--
An AER ring fencing determination may require the covered pipeline
service provider to ensure that persons employed or engaged by the
covered pipeline service provider in relation to the provision of
20 pipeline services are not also associates, or employed by associates,
of the covered pipeline service provider that take part in a related
business and how this must be effected.
Example 2--
An AER ring fencing determination may require the covered pipeline
25 service provider to put in place electronic, physical and procedural
security measures in respect of the offices and computer systems of
the covered pipeline service provider, and of the offices and computer
systems of its associates, so that certain specified employees or
persons engaged by the covered pipeline service provider do not have
30 access to certain specified information.
(b) in a specified manner, disclose, to the AER and to the public,
specified information in a specified manner about its business
operations, structure and arrangements, and its business activities.
Division 4--AER ring fencing exemptions
35 146--Exemptions from minimum ring fencing requirements
(1) A covered pipeline service provider may, in accordance with the Rules, apply
to the AER for an exemption from--
(a) the requirement under section 139; or
(b) a requirement under section 140; or
40 (c) the requirement under section 141.
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(2) On receiving an application under subsection (1), the AER, subject to and in
accordance with the Rules, may exempt a covered pipeline service provider
from--
(a) the requirement under section 139; or
5 (b) a requirement under section 140; or
(c) the requirement under section 141.
Division 5--Associate contracts
147--Service provider must not enter into or give effect to associate
contracts that have anti-competitive effect
10 A covered pipeline service provider must not--
(a) enter into an associate contract that has; or
(b) vary an associate contract so that contract, as varied, has; or
(c) give effect to a provision of an associate contract that has,
the purpose, or would have or be likely to have the effect, of substantially
15 lessening competition in a market for natural gas services unless--
(d) that associate contract is an approved associate contract; or
(e) that provision is contained in an approved associate contract.
148--Service provider must not enter into or give effect to associate
contracts inconsistent with competitive parity rule
20 (1) A covered pipeline service provider must not--
(a) enter into an associate contract that is; or
(b) vary an associate contract so that contract, as varied, is; or
(c) give effect to a provision of an associate contract that is,
inconsistent with the competitive parity rule unless--
25 (d) that associate contract is an approved associated contract; or
(e) that provision is contained in an approved associate contract.
(2) For the purposes of subsection (1), and any Rules made for the purposes of
that subsection, the competitive parity rule is the rule that a covered pipeline
service provider must ensure that any pipeline services that the covered
30 pipeline service provider provides to an associate of the covered pipeline
service provider are provided to that associate as if that associate were a
separate unrelated entity.
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Chapter 5--Greenfields pipeline incentives
Part 1--Interpretation
149--Definitions
In this Chapter--
5 excluded infrastructure, in relation to a pipeline, means tanks, reservoirs,
machinery, equipment or other infrastructure that forms part of the pipeline
but is classified by the Rules as excluded infrastructure for the purposes of
this Law;
greenfields pipeline project means a project for the construction of--
10 (a) a pipeline that is to be structurally separate from any existing
pipeline (whether or not it is to traverse a route different from the
route of an existing pipeline); or
(b) a major extension to an existing pipeline that is not a covered
pipeline; or
15 (c) a major extension to a covered pipeline by means of which light
regulation services are provided if that extension is exempted by the
AER under section 19.
150--International pipeline to be a transmission pipeline for purposes
of Chapter
20 An international pipeline is, for the purposes of this Chapter, a transmission
pipeline.
Part 2--15-year no-coverage determinations
151--Application for 15-year no-coverage determination for proposed
pipeline
25 (1) If a greenfields pipeline project is proposed, or has commenced, the service
provider may, before the pipeline is commissioned, apply for a determination
(a 15-year no-coverage determination) exempting the pipeline from being a
covered pipeline.
(2) If a price regulation exemption has been granted for an international pipeline,
30 an application for a 15-year no-coverage determination for the pipeline may
be made by the service provider--
(a) before the pipeline is commissioned; or
(b) after the pipeline is commissioned but before the term of the price
regulation exemption comes to an end.
35 (3) An application for a 15-year no-coverage determination--
(a) is to be made to the NCC; and
(b) must include a description of the pipeline that meets the requirements
specified by the Rules; and
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(c) must contain the information required by the Rules; and
(d) need not describe, or include details of, excluded infrastructure; and
(e) must be accompanied by the fee prescribed by the Regulations (if
any).
5 (4) In this section--
service provider includes a person that intends to be a service provider.
152--Application to be dealt with in accordance with the Rules
On receiving an application under section 151, the NCC must deal with it in
accordance with the Rules.
10 153--No-coverage recommendation
(1) The NCC must make a recommendation recommending to the relevant
Minister that the pipeline the subject of the application--
(a) be exempted from being a covered pipeline for a period of 15 years;
or
15 (b) not be exempted from being a covered pipeline for a period of
15 years.
(2) A recommendation under this section must--
(a) be made in accordance with this Law and the Rules; and
(b) be made within the time specified by the Rules; and
20 (c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the Rules.
(3) A recommendation under this section may recommend an outcome different
to the outcome sought in the application under section 151.
25 Example--
An applicant may apply for a 15-year no-coverage determination in relation to
the whole pipeline. The NCC may recommend that only a part of the pipeline
the subject of the application be subject to a 15-year no-coverage
determination.
30 (4) A recommendation under this section must be delivered to the relevant
Minister without delay.
154--Principles governing the making of a no-coverage
recommendation
(1) In making a no-coverage recommendation, the NCC--
35 (a) must give effect to the pipeline coverage criteria; and
(b) in deciding whether or not the pipeline coverage criteria are satisfied
must have regard to the national gas objective.
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(2) The NCC gives effect to the pipeline coverage criteria as follows:
(a) if the NCC is satisfied that all the pipeline coverage criteria are
satisfied in relation to the pipeline the recommendation must be
against making a 15-year no-coverage determination;
5 (b) if the NCC is not satisfied that all the pipeline coverage criteria are
satisfied in relation to the pipeline the recommendation must be in
favour of making a 15-year no coverage determination.
155--Initial classification decision to be made as part of
recommendation
10 (1) If the pipeline the subject of an application under section 151 is not an
international pipeline, the NCC must, as part of a no-coverage
recommendation, classify the pipeline as a transmission pipeline or a
distribution pipeline (an initial classification decision). In doing so, the NCC
must apply the pipeline classification criterion.
15 (2) The NCC must as part of an initial classification decision--
(a) if it classifies the pipeline the subject of the application as a
transmission pipeline--determine whether the transmission pipeline
is also a cross boundary transmission pipeline; or
(b) if it classifies the pipeline the subject of the application as a
20 distribution pipeline--determine whether the distribution pipeline is
also a cross boundary distribution pipeline.
(3) The NCC must also determine, as part of an initial classification decision, the
participating jurisdiction with which the pipeline the subject of the
application under section 151 is most closely connected if the NCC
25 determines the pipeline is also a cross boundary distribution pipeline. In
doing so, the NCC must have regard to the jurisdictional determination
criteria.
156--Relevant Minister's determination on application
(1) On receiving a no-coverage recommendation the relevant Minister must
30 decide whether or not to make a 15-year no-coverage determination in respect
of the pipeline to which the recommendation relates.
(2) The relevant Minister must use his or her best endeavours to make the
decision within 30 business days after receiving the coverage
recommendation.
35 (3) If the relevant Minister is unable to make the decision within the period
specified under subsection (2), he or she must make the decision as soon as
reasonably practicable after the end of the specified period.
(4) The relevant Minister, for the purpose of making the decision, may request
submissions or comments in relation to an application under section 151.
40 (5) A 15-year no-coverage determination or a decision not to make a 15-year
no-coverage determination must--
(a) be made in accordance with this Law and the Rules; and
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(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
(6) A 15-year no-coverage determination may have an outcome different to the
5 outcome--
(a) sought in the application under section 151; or
(b) of the no-coverage recommendation.
Example--
An applicant may apply for a 15-year no-coverage determination in relation to
10 the whole pipeline. The NCC may recommend that only a part of the pipeline
the subject of the application be subject to a 15-year no-coverage
determination. The relevant Minister may make a 15-year no-coverage
determination that applies to different parts of the pipeline to those
recommended by the NCC be subject to the determination.
15 157--Principles governing the making of a 15-year no-coverage
determination or decision not to do so
(1) In deciding whether to make a 15-year no-coverage determination under this
Part, the relevant Minister--
(a) must give effect to the pipeline coverage criteria; and
20 (b) in deciding whether or not the pipeline coverage criteria are satisfied
in relation to the pipeline--
(i) must have regard to the national gas objective; and
(ii) must have regard to the no-coverage recommendation; and
(iii) must take into account any submissions or comments he or
25 she receives on a request under section 156(4); and
(iv) may take into account any relevant submissions and
comments made to the NCC by the public under the Rules in
relation to the application.
(2) The relevant Minister gives effect to the pipeline coverage criteria as follows:
30 (a) if the Minister is satisfied that all the pipeline coverage criteria are
satisfied in relation to the pipeline the Minister must not make a 15-
year no-coverage determination;
(b) if the Minister is not satisfied that all the pipeline coverage criteria
are satisfied in relation to the pipeline the Minister must make a 15-
35 year no-coverage determination.
158--Effect of 15-year no-coverage determination
(1) A 15-year no-coverage determination--
(a) takes effect on and from the date specified in the determination; and
(b) continues in operation for a period of 15 years from the
40 commissioning of the pipeline.
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(2) An application for coverage of a pipeline to which a 15-year no-coverage
determination applies can be made before the end of the period for which the
determination remains in operation only if the coverage sought in the
application is to commence from, or after, the end of that period.
5 159--Consequences of Minister deciding against making 15-year
no-coverage determination for international pipeline
(1) If--
(a) the Commonwealth Minister decides against making a 15-year
no-coverage determination for an international pipeline; and
10 (b) the applicant asks the Commonwealth Minister to treat the
application as an application for a price regulation exemption,
the Commonwealth Minister may treat the application as an application for a
price regulation exemption under Chapter 5 Part 3.
(2) If the Commonwealth Minister decides to treat an application for a 15-year
15 no-coverage determination as an application for a price regulation exemption,
the Commonwealth Minister may--
(a) refer the application to the NCC for a recommendation under
Chapter 5 Part 3; or
(b) proceed to determine the application without a recommendation
20 under Chapter 5 Part 3.
Part 3--Price regulation exemptions
Division 1--Application for price regulation exemption
160--Application for price regulation exemption
(1) If a greenfields pipeline project for construction of an international pipeline is
25 proposed, or has commenced, the service provider may, before the pipeline is
commissioned, apply for a price regulation exemption for the pipeline.
(2) An application for a price regulation exemption--
(a) is to be made to the NCC; and
(b) must include a description of the pipeline that meets the requirements
30 specified by the Rules; and
(c) must contain the information required by the Rules; and
(d) need not describe, or include details of, excluded infrastructure; and
(e) must be accompanied by the fee prescribed by the Regulations (if
any).
35 (3) In this section--
service provider includes a person that intends to be a service provider.
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Division 2--Recommendations by NCC
161--Application to be dealt with in accordance with the Rules
On receiving an application under section 160, the NCC must deal with it in
accordance with the Rules.
5 162--NCC's recommendation
(1) The NCC must make a recommendation to the Commonwealth Minister as to
whether the Minister should grant a price regulation exemption for the
pipeline the subject of the application.
(2) A recommendation under this section must--
10 (a) be made in accordance with this Law and the Rules; and
(b) be made within the time specified by the Rules; and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the Rules.
15 (3) A recommendation under this section must be delivered to the
Commonwealth Minister without delay.
163--General principle governing NCC's recommendation
(1) In making its recommendation on an application for a price regulation
exemption, the NCC must weigh the benefits to the public of granting the
20 exemption against the detriments to the public.
(2) In doing so, the NCC--
(a) must have regard to the national gas objective with particular
reference to--
(i) the implications of the exemption for relevant markets
25 (including the effect on market power); and
(ii) other possible effects on the public interest; and
(b) may have regard to any other relevant matter.
Division 3--Making and effect of price regulation exemption
164--Making of price regulation exemption
30 (1) On receiving the NCC's recommendation under section 162, the
Commonwealth Minister must decide whether to grant a price regulation
exemption.
(2) The Commonwealth Minister must use his or her best endeavours to make the
decision within 10 business days after receiving the NCC's recommendation.
35 (3) If the Commonwealth Minister is unable to make the decision within the
period specified under subsection (2), he or she must make the decision as
soon as reasonably practicable after the end of the specified period.
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(4) A decision under this section must--
(a) be made in accordance with this Law and the Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
5 (d) be made publicly available in accordance with the Rules.
165--Principles governing the making of a price regulation exemption
(1) In deciding whether to make a decision to grant a price regulation exemption,
the Commonwealth Minister must weigh the benefits to the public of granting
the exemption against the detriments to the public.
10 (2) In doing so, the Commonwealth Minister--
(a) must have regard to the national gas objective with particular
reference to--
(i) the implications of the exemption for relevant markets
(including the effect on market power); and
15 (ii) other possible effects of the exemption on the public
interest; and
(b) must have regard to the NCC's recommendation; and
(c) may take into account any relevant submissions and comments made
to the NCC by the public under the Rules in relation to the
20 application; and
(d) may have regard to any other relevant matter.
166--Conditions applying to a price regulation exemption
A price regulation exemption granted under this Part is subject to the
following conditions:
25 (a) the service provider must publish on its website prices for the
provision of pipeline services by means of the international pipeline;
and
(b) the service provider's limited access arrangement and the register of
spare capacity are to be accessible on the service provider's website;
30 and
(c) the service provider--
(i) must, as and when required by the AER or the
Commonwealth Minister, provide information requested by
the AER or the Commonwealth Minister (in a manner and
35 form determined or approved by the AER or the
Commonwealth Minister) on access negotiations and the
result of access negotiations; and
(ii) must report annually to the AER and the Commonwealth
Minister (in a manner and form approved by the AER or the
40 Commonwealth Minister) on access negotiations and the
result of access negotiations.
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Schedule--National Gas Law
Note--
See also sections 168 and 169(3).
167--Effect of price regulation exemption
(1) If a price regulation exemption is granted, then for a period of 15 years from
5 the commissioning of the pipeline, the services provided by means of the
pipeline are not subject to price or revenue regulation under this Law or the
Rules.
(2) A price regulation exemption is, however, ineffective unless a limited access
arrangement, approved by the AER, is in force in relation to the relevant
10 pipeline.
Note--
See also section 168.
(3) If, while a price regulation exemption remains in force, the Commonwealth
Minister makes a 15-year no-coverage determination for the pipeline, the
15 15-year no-coverage determination supersedes the price regulation exemption
(which is then terminated) and remains in force for the balance of the period
for which the exemption was granted.
(4) An application for coverage of a pipeline to which a price regulation
exemption applies can only be made before the end of the period of
20 exemption if the coverage sought in the application is to commence from, or
after, the end of that period.
Division 4--Limited access arrangements
168--Limited access arrangements for pipeline services provided by
international pipeline to which a price regulation exemption
25 applies
(1) A service provider must, within 60 business days after the grant of a price
regulation exemption, submit a limited access arrangement to the AER for
approval by the AER under the Rules.
(2) A limited access arrangement must--
30 (a) be submitted in accordance with the Rules; and
(b) contain the information required by the Rules.
(3) A service provider must submit to the AER, for approval by the AER under
the Rules, revisions to an applicable access arrangement that is a limited
access arrangement and that applies to the pipeline service to which that
35 arrangement applies--
(a) in accordance with the Rules; and
(b) within the period specified by the Rules.
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National Gas Law--Schedule
Division 5--Other matters
169--Other obligations to which service provider is subject
(1) The service provider for a pipeline to which a price regulation exemption
applies is subject to the following provisions as if the pipeline were a covered
5 pipeline:
(a) Chapter 4 Part 1 (except sections 132 and 136); and
(b) Chapter 4 Part 2.
(2) The service provider for a pipeline to which a price regulation exemption
applies must comply with any Rules that--
10 (a) relate to the facilitation of, and request for access to, pipeline
services provided by means of that pipeline; and
(b) apply to the service provider or a class of person of which the service
provider is a member.
(3) A service provider must ensure compliance with conditions to which the price
15 regulation exemption is subject.
Note--
See also section 160.
170--Service provider must not price discriminate in providing
international pipeline services
20 (1) A service provider must not, when providing pipeline services--
(a) by means of an international pipeline to which a price regulation
exemption applies; and
(b) to which a limited access arrangement applies,
engage in price discrimination.
25 (2) Subsection (1) does not apply if the service provider engages in price
discrimination that is conducive to efficient service provision.
Part 4--Extended or modified application of greenfields
pipeline incentive
171--Requirement for conformity between pipeline description and
30 pipeline as constructed
(1) Subject to this Part--
(a) a greenfields pipeline incentive applies to the pipeline as described in
the relevant pipeline description; and
(b) if the pipeline, as constructed, materially differs from the pipeline as
35 described in the relevant pipeline description, the incentive does not
attach to the pipeline and the service provider is not entitled to its
benefit.
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(2) In determining whether a pipeline, as constructed, materially differs from the
relevant pipeline description, excluded infrastructure is not to be taken into
account.
(3) In this section--
5 relevant pipeline description means a description of a pipeline required to be
included in an application under section 151 or 160.
172--Power of relevant Minister to amend pipeline description
(1) The relevant Minister may, on application by the service provider for a
pipeline for which a greenfields pipeline incentive has been granted, amend
10 the relevant pipeline description.
(2) An amendment cannot, however, be made under this section after the pipeline
has been commissioned.
(3) The relevant Minister--
(a) may refer an application for amendment to a pipeline description to
15 the NCC for advice; and
(b) if the amendment sought involves a substantial change to the pipeline
description as it currently exists must refer the application to the
NCC for advice.
(4) In giving its advice to the relevant Minister, the NCC must have regard to the
20 criteria that were relevant to the grant of the greenfields pipeline incentive.
(5) In deciding whether to make the amendment sought, the relevant Minister--
(a) must have regard to the criteria that were relevant to the grant of the
greenfields pipeline incentive; and
(b) if the application has been referred to the NCC for advice must
25 consider the NCC's advice.
Part 5--Early termination of greenfields pipeline
incentive
173--Greenfields pipeline incentive may lapse
(1) A greenfields pipeline incentive lapses if the pipeline for which it was granted
30 is not commissioned within 3 years after the incentive was granted.
(2) The Regulations may, in a particular case, extend the period of 3 years
referred to in subsection (1).
174--Revocation by consent
The relevant Minister may, at the request of the service provider, revoke a
35 greenfields pipeline incentive.
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National Gas Law--Schedule
175--Revocation for misrepresentation
The relevant Minister may, on application by the AER, revoke a greenfields
pipeline incentive on the ground that--
(a) the applicant misrepresented a material fact on the basis of which the
5 application was granted; or
(b) the applicant failed to disclose material information that the applicant
was required to disclose under this Chapter.
176--Revocation for breach of condition to which a price regulation
exemption is subject
10 The Commonwealth Minister, on application by the AER, may revoke a price
regulation exemption on the ground that the service provider has breached a
condition to which the price regulation exemption is subject.
177--Exhaustive provision for termination of greenfields pipeline
incentive
15 A greenfields pipeline incentive does not terminate, and cannot be revoked,
before the end of its term except as provided in this Part.
Chapter 6--Access disputes
Part 1--Interpretation and application
178--Definitions
20 In this Chapter--
access dispute means a dispute between a user or prospective user and a
service provider about 1 or more aspects of access to a pipeline service
provided by means of a scheme pipeline;
access dispute pipeline means a scheme pipeline used or that could be used to
25 provide a pipeline service that is the subject of an access dispute;
dispute hearing means a hearing conducted by the dispute resolution body
for the purpose of making an access determination;
party, in relation to an access dispute, has the meaning given by section 183.
179--Chapter does not limit how disputes about access may be raised
30 or dealt with
This Chapter is not to be taken to limit how a dispute about access to a
pipeline service may be raised or dealt with.
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180--No price or revenue regulation for access disputes relating to
international pipeline services
An access dispute notified under this Chapter in relation to a pipeline service
provided by means of an international pipeline to which a price regulation
5 exemption applies must not be resolved under this Chapter on terms--
(a) regulating the price at which a service is to be provided by the
service provider; or
(b) limiting the revenue to be derived by the service provider from the
provision of a service.
10 Part 2--Notification of access dispute
181--Notification of access dispute
(1) Subject to this section, if a prospective user or user is unable to agree with a
service provider about 1 or more aspects of access to a pipeline service
provided or to be provided by means of a scheme pipeline, the prospective
15 user, user or service provider may notify the dispute resolution body, in
writing, that an access dispute exists.
Note--
A dispute about access to a light regulation service may be notified under this
section because light regulation services are pipeline services provided by
20 means of a covered pipeline (which is a scheme pipeline).
(2) A notification must be accompanied by the fee prescribed by the Regulations
(if any).
(3) On receiving a notification under subsection (1), the dispute resolution body
must notify, in writing, of the access dispute--
25 (a) the service provider, if a prospective user or user (as the case
requires) notified the dispute resolution body of the access dispute
under subsection (1);
(b) the prospective user or user (as the case requires), if the service
provider notified the dispute resolution body of the access dispute
30 under subsection (1).
182--Withdrawal of notification
(1) The person who notified the dispute resolution body of an access dispute
under section 181(1) may withdraw that notification at any time before the
dispute resolution body makes an access determination in respect of that
35 access dispute.
(2) The notification must be withdrawn by notice in writing.
(3) If the notification is withdrawn, it must be taken, for the purposes of this
Chapter, never to have been given.
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183--Parties to an access dispute
The parties to an access dispute are--
(a) the person notifying the dispute resolution body of an access dispute
under section 181(1); and
5 (b) a person notified by the dispute resolution body under
section 181(3); and
(c) if the dispute resolution body is of the opinion that the resolution of
the access dispute may involve requiring another person to do
something--that other person; and
10 (d) any other person who applies in writing to be made a party and is
accepted by the dispute resolution body as having a sufficient
interest.
Part 3--Access determinations
184--Determination of access dispute
15 (1) Unless the dispute resolution body terminates an access dispute under
section 186, the dispute resolution body must make a determination on access
by the prospective user or user, as the case requires.
(2) In making an access determination the dispute resolution body must comply
with this Chapter and the Rules.
20 (3) An access determination must--
(a) be in writing; and
(b) include a statement of reasons for making the determination; and
(c) be given to the parties without delay.
(4) An access determination has effect on and after the date specified in the
25 determination.
185--Dispute resolution body may require parties to mediate, conciliate
or engage in an alternative dispute resolution process
(1) The dispute resolution body may require the parties, in accordance with the
Rules, to mediate, conciliate or engage in another alternative dispute
30 resolution process for the purpose of resolving the dispute.
(2) A party must comply with a requirement under subsection (1).
186--Dispute resolution body may terminate access dispute in certain
cases
(1) The dispute resolution body may at any time terminate an access dispute
35 (without making an access determination) if the dispute resolution body
considers that--
(a) the notification of the access dispute was vexatious; or
(b) the subject matter of the dispute is trivial, misconceived or lacking in
substance; or
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Schedule--National Gas Law
(c) the party who notified the access dispute had, but did not avail itself
of, an opportunity to engage in negotiations in good faith with the
other party before that notification; or
(d) a specified dispute termination circumstance has occurred.
5 (2) Subject to section 188, the dispute resolution body may also terminate an
access dispute (without making an access determination) if the dispute
resolution body considers that the aspect of access about which there is a
dispute is expressly or impliedly dealt with under a contract between, as the
case requires--
10 (a) the prospective user and service provider;
(b) the user and service provider.
(3) In this section--
specified dispute termination circumstance means a circumstance specified
by the Rules as being a circumstance, the occurrence of which, entitles the
15 dispute resolution body to terminate an access dispute (without making an
access determination).
187--No access determination if dispute resolution body considers there
is genuine competition
Despite anything to the contrary in this Chapter, the dispute resolution body
20 may refuse to make an access determination that requires the service provider
to provide a particular pipeline service to a prospective user or user if the
dispute resolution body considers that the pipeline service the subject of the
access dispute could be provided on a genuinely competitive basis by a
person other than the service provider or an associate of the service provider.
25 188--Restrictions on access determinations
(1) The dispute resolution body must not make an access determination that
would have any of the following effects:
(a) preventing a user obtaining a sufficient amount of a pipeline service
under a contract or previous access determination to be able to meet
30 the user's reasonably anticipated requirements, measured at the time
the access dispute was notified;
(b) preventing a prospective user or user from obtaining, by the exercise
of a pre-notification right, a sufficient amount of a pipeline service to
be able to meet the prospective user's or user's actual requirements;
35 (c) depriving a person of a relevant protected contractual right.
(2) In this section--
pre-notification right means a right under a contract, or under an access
determination, that was in force at the time when the access dispute was
notified under section 181;
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relevant exclusivity right means an express contractual right that arose on or
after 30 March 1995 that--
(a) prevents a service provider supplying pipeline services to persons
who are not parties to the contract; or
5 (b) limits or controls a service provider's ability to supply pipeline
services to persons who are not parties to the contract,
but does not include a user's contractual right to obtain a certain amount of
pipeline services;
relevant protected contractual right means a right under a contract (other
10 than a relevant exclusivity right) that was in force immediately before the
notification of an access dispute under section 181.
189--Access determination must give effect to applicable access
arrangement
Subject to sections 190 and 191 and any Rules made for the purposes of this
15 Part, the dispute resolution body must, in making an access determination,
give effect to the applicable access arrangement--
(a) applying to the pipeline services provided, or to be provided, by
means of the access dispute pipeline; and
(b) in effect at the time the determination is made,
20 (even though that arrangement may not have been in force when notification
of the access dispute was given).
190--Access determinations and past contributions of capital to fund
installations or the construction of new facilities
(1) In making an access determination, the dispute resolution body may (where
25 relevant) take into account past contributions of capital to fund installations or
the construction of new facilities.
(2) Without limiting section 74, the Rules may--
(a) specify the matters that the dispute resolution body must address in
making that access determination;
30 (b) specify the content of that access determination.
191--Rules may allow determination that varies applicable access
arrangement for installation of a new facility
(1) This section applies if the dispute resolution body is proposing to make an
access determination that will require--
35 (a) a service provider to install or construct a new facility to expand the
capacity of the access dispute pipeline; and
(b) the prospective user or user who is a party to the access dispute to
contribute some or all of the capital to fund the installation or
construction of the new facility.
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Schedule--National Gas Law
(2) Without limiting section 74, the Rules may--
(a) confer a function or power on the dispute resolution body to, when
making the access determination, vary the applicable access
arrangement; and
5 (b) specify the matters that the dispute resolution body must address in
making that access determination; and
(c) specify the kinds of variations that may be made to the applicable
access arrangement; and
(d) specify the content of that access determination.
10 192--Access determinations need not require the provision of a pipeline
service
An access determination may, but need not, require a service provider to
provide a pipeline service to a prospective user.
193--Content of access determinations
15 Subject to this Chapter, an access determination may deal with any matter
relating to the provision of a pipeline service to a prospective user or user.
Example--
An access determination may require the service provider to provide a pipeline
service to the prospective user or user at--
20 (a) a specified tariff, rate or charge; and
(b) on specified terms and conditions.
Part 4--Variation of access determinations
194--Variation of access determination
(1) The dispute resolution body may vary an access determination on the
25 application of any party to the determination. However, it cannot vary the
final determination if any other party objects.
Note--
If the parties cannot agree on a variation, a new access dispute can be notified
under section 181.
30 (2) Section 188 applies to a variation under this section as if--
(a) an access dispute arising out of the access determination had been
notified when the application was made to the dispute resolution
body for the variation of the determination; and
(b) the variation were the making of an access determination in the terms
35 of the varied determination.
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National Gas Law--Schedule
Part 5--Compliance with access determinations
195--Compliance with access determination
A party to an access dispute in respect of which an access determination is
made must comply with the access determination.
5 Part 6--Access dispute hearing procedure
196--Hearing to be in private
(1) Subject to subsection (2), a dispute hearing is to be in private.
(2) If the parties agree, a dispute hearing or part of a dispute hearing may be
conducted in public.
10 (3) The dispute resolution body may give written directions as to the persons who
may be present at a dispute hearing that is conducted in private.
(4) In giving directions under subsection (3), the dispute resolution body must
have regard to the wishes of the parties and the need for commercial
confidentiality.
15 197--Right to representation
In a dispute hearing a party may appear in person or be represented by
another person.
198--Procedure of dispute resolution body
(1) In a dispute hearing the dispute resolution body--
20 (a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act as speedily as a proper consideration of the access dispute
allows, having regard to the need to carefully and quickly inquire
into and investigate the access dispute and all matters affecting the
merits, and fair settlement, of the access dispute; and
25 (c) may inform itself about any matter relevant to the access dispute in
any way it thinks appropriate.
(2) The dispute resolution body may determine the periods that are reasonably
necessary for the fair and adequate presentation of the respective cases of the
parties in the dispute hearing, and may require that the cases be presented
30 within those periods.
(3) The dispute resolution body may require evidence or argument to be
presented in writing, and may decide the matters on which the dispute
resolution body will hear oral evidence or argument.
(4) The dispute resolution body may determine that a dispute hearing is to be
35 conducted by--
(a) telephone; or
(b) closed circuit television; or
(c) any other means of communication.
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Schedule--National Gas Law
(5) The Rules may make further provision about the procedure for the conduct of
dispute hearings.
199--Particular powers of dispute resolution body in a hearing
(1) The dispute resolution body may do any of the following things for the
5 purpose of determining an access dispute:
(a) give a direction in the course of, or for the purpose of, a dispute
hearing;
(b) hear and determine the access dispute in the absence of a party who
has been given notice of the dispute hearing;
10 (c) sit at any place;
(d) adjourn to any time and place;
(e) refer any matter to an independent expert and accept the expert's
report as evidence.
(2) The dispute resolution body may make an interim determination.
15 200--Disclosure of information
(1) The dispute resolution body may give an oral or written order to a person not
to divulge or communicate to anyone else specified information that was
given to the person in the course of an access dispute unless the person has
the dispute resolution body's permission.
20 (2) A person must not, without reasonable excuse, refuse or fail to comply with
an order under subsection (1).
Maximum penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
25 201--Power to take evidence on oath or affirmation
(1) The dispute resolution body may take evidence on oath or affirmation and for
that purpose the dispute resolution body may administer an oath or
affirmation.
(2) The dispute resolution body may summon a person to appear before the
30 dispute resolution body to--
(a) give evidence; or
(b) produce such documents (if any) as are referred to in the summons;
or
(c) give evidence and produce such documents (if any) as are referred to
35 in the summons.
(3) The powers in this section may be exercised only for the purposes of hearing
and determining an access dispute.
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National Gas Law--Schedule
202--Failing to attend as a witness
A person who is served, as prescribed by the Regulations, with a summons to
appear as a witness before the dispute resolution body must not, without
reasonable excuse--
5 (a) fail to attend as required by the summons; or
(b) fail to appear and report himself or herself from day to day unless
excused, or released from further attendance, by the dispute
resolution body.
Maximum penalty: $2 000.
10 203--Failing to answer questions etc
(1) A person appearing as a witness before the dispute resolution body must not,
without reasonable excuse--
(a) refuse or fail to be sworn or to make an affirmation; or
(b) refuse or fail to answer a question that the person is required to
15 answer by the dispute resolution body; or
(c) refuse or fail to produce a document that he or she is required to
produce by a summons under this Chapter served on him or her as
prescribed by the Regulations.
Maximum penalty: $2 000.
20 (2) It is a reasonable excuse for the purposes of subsection (1) for a natural
person to refuse or fail to answer a question or produce a document on the
ground that the answer or the production of the document might--
(a) tend to incriminate the person; or
(b) expose the person to a criminal penalty.
25 (3) Subsection (2) does not limit what is a reasonable excuse for the purposes of
subsection (1).
204--Intimidation etc
A person must not--
(a) threaten, intimidate or coerce another person; or
30 (b) cause or procure damage, loss or disadvantage to another person,
because that other person--
(c) proposes to produce, or has produced, documents to the dispute
resolution body; or
(d) proposes to appear, or has appeared, as a witness before the dispute
35 resolution body.
Maximum penalty: $2 000.
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Schedule--National Gas Law
205--Party may request dispute resolution body to treat material as
confidential
(1) A party in a dispute hearing may--
(a) inform the dispute resolution body that, in the party's opinion, a
5 specified part of a document contains confidential information; and
(b) request the dispute resolution body not to give a copy of that part to
another party.
(2) On receiving a request, the dispute resolution body must--
(a) inform the other party or parties that the request has been made and
10 of the general nature of the matters to which the relevant part of the
document relates; and
(b) ask the other party or parties whether there is any objection to the
dispute resolution body complying with the request.
(3) If there is an objection to the dispute resolution body complying with the
15 request, the party objecting may inform the dispute resolution body of the
objection and of the reasons for it.
(4) After considering--
(a) a request; and
(b) any objection; and
20 (c) any further submissions that any party has made in relation to the
request,
the dispute resolution body may decide--
(d) not to give the other party or parties a copy of so much of the
document as contains confidential information that the dispute
25 resolution body thinks should not be given; or
(e) to give the other party or another specified party a copy of the whole,
or part, of the part of the document that contains confidential
information subject to a condition that the party give an undertaking
not to disclose the information to another person except to the extent
30 specified by the dispute resolution body and subject to such other
conditions as the dispute resolution body determines.
206--Costs
(1) Each party is to bear its own costs in a dispute hearing except to the extent
that an order under this section specifies otherwise.
35 (2) At any time, the dispute resolution body may order that a party pay all or a
specified part of the costs of another party in a dispute hearing.
(3) The dispute resolution body may make an order under subsection (2) only if
satisfied that it is fair to do so, having regard to--
(a) whether a party has conducted the dispute hearing in a way that
40 unnecessarily disadvantaged another party by conduct such as--
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(i) failing to comply with an order or direction of the dispute
resolution body without reasonable excuse;
(ii) failing to comply with this Law, the Regulations or the
Rules;
5 (iii) asking for an adjournment as a result of subparagraph (i) or
(ii);
(iv) causing an adjournment;
(v) attempting to deceive another party or the dispute resolution
body;
10 (vi) vexatiously conducting an access dispute;
(b) whether a party has been responsible for prolonging unreasonably
the time taken to complete the dispute hearing;
(c) the relative strengths of the claims made by each of the parties,
including whether a party has made a claim that has no tenable basis
15 in fact or law;
(d) the nature and complexity of the access dispute;
(e) any other matter the dispute resolution body considers relevant.
(4) A party to whom an order made under subsection (2) is directed must comply
with the order.
20 (5) If the dispute resolution body considers that the representative of a party,
rather than the party, is responsible for conduct described in subsection (3)(a)
or (b), the dispute resolution body may order that the representative in his or
her own capacity compensate another party for any costs incurred
unnecessarily.
25 (6) Before making an order under subsection (5), the dispute resolution body
must give the representative a reasonable opportunity to be heard.
(7) A representative of a party to whom an order made under subsection (5) is
directed must comply with the order.
(8) If the dispute resolution body makes an order for costs before the end of an
30 access dispute, the dispute resolution body may require that the order be
complied with before it continues with the proceeding.
(9) If the dispute resolution body makes an order for costs, the dispute resolution
body may fix the amount of costs itself.
(10) This section applies to costs incurred by the parties in a dispute hearing even
35 if the notification of the access dispute to which the dispute hearing relates is
withdrawn.
207--Outstanding costs are a debt due to party awarded the costs
Costs that are payable under section 206(4) or (7)--
(a) are a debt due to the party to whom the dispute resolution body has
40 ordered that they be paid; and
(b) may be recovered by that party in a court of competent jurisdiction.
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Schedule--National Gas Law
Part 7--Joint access dispute hearings
208--Definition
In this Part--
nominated disputes has the meaning given by section 209(2).
5 209--Joint dispute hearing
(1) This section applies if--
(a) the dispute resolution body is conducting 2 or more dispute hearings
at a particular time; and
(b) 1 or more matters are common to the access disputes in relation to
10 which the dispute hearings are being conducted.
(2) The dispute resolution body may, by notice in writing, decide that it will hold
a joint dispute hearing in respect of such of those access disputes (the
nominated disputes) as are specified in the notice.
(3) The dispute resolution body may do so only if it considers this would be
15 likely to result in the nominated disputes being resolved in a more efficient
and timely manner.
210--Consulting the parties
(1) Before making a decision under section 209(2), the dispute resolution body
must give each party to each of the nominated disputes a notice in writing--
20 (a) specifying what the dispute resolution body is proposing to do; and
(b) inviting the party to make a written submission on the proposal to the
dispute resolution body within 10 business days after the notice is
given.
(2) The dispute resolution body must have regard to any submission so made in
25 deciding whether to do so. The dispute resolution body may have regard to
any other matter it considers relevant.
211--Constitution and procedure of dispute resolution body for joint
dispute hearings
Chapter 6 Part 6 applies to the joint dispute hearing in a corresponding way to
30 the way in which it applies to a particular dispute hearing.
212--Record of proceedings etc
(1) The dispute resolution body as constituted for the purposes of the joint
dispute hearing may have regard to any record of the proceedings of the
dispute of any of the nominated disputes.
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(2) The dispute resolution body as constituted for the purposes of the dispute
hearing of each of the nominated disputes may, for the purposes of making an
access determination in relation to the access dispute to which that hearing
relates--
5 (a) have regard to any record of the proceedings of the joint dispute
hearing; and
(b) adopt any findings of fact made by the dispute resolution body as
constituted for the purposes of the joint dispute hearing.
Part 8--Miscellaneous matters
10 213--Correction of access determinations for clerical mistakes etc
If an access determination contains--
(a) a clerical mistake; or
(b) an error arising from an accidental slip or omission; or
(c) a material miscalculation of figures or a material mistake in the
15 description of any person, thing or matter referred to in the
determination; or
(d) a defect in form,
the dispute resolution body may correct the access determination.
214--Reservation of capacity during an access dispute
20 A service provider who is in an access dispute with a user must not, without
the consent of the user, alter the rights that the user has to use the capacity of
the access dispute pipeline during the period of the dispute.
215--Subsequent service providers bound by access determinations
(1) An access determination applies to every subsequent service provider as if
25 that subsequent service provider were a party to the access dispute in respect
of which the access determination was made.
(2) In this section--
subsequent service provider means a service provider (other than the service
provider to whom the access determination applies) who provides pipeline
30 services--
(a) the subject of the access dispute; and
(b) in respect of which the access determination was made.
216--Regulations about the costs to be paid by parties to access dispute
The Regulations may provide for the dispute resolution body to--
35 (a) charge the parties to an access dispute for its costs in the access
dispute; and
(b) apportion those costs between the parties.
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Schedule--National Gas Law
Chapter 7--The Natural Gas Services Bulletin Board
Part 1--The Bulletin Board Operator
217--The Bulletin Board operator
The Bulletin Board operator is the person prescribed by the Regulations as
5 the Bulletin Board operator.
218--Obligation to establish and maintain the Natural Gas Services
Bulletin Board
(1) The Bulletin Board operator first prescribed under section 217 must establish
a website, to be known as the Natural Gas Services Bulletin Board,
10 containing information of the kind specified in the Rules in relation to natural
gas services.
(2) The Bulletin Board operator must maintain the Natural Gas Services Bulletin
Board.
(3) The Bulletin Board operator may replace the website with another website
15 containing information of the kind specified in the Rules in relation to natural
gas services.
219--Other functions of the Bulletin Board operator
The Bulletin Board operator also has the following functions:
(a) to collect and collate Bulletin Board information;
20 (b) to collect and collate other information in relation to natural gas
services for inclusion on the Natural Gas Services Bulletin Board;
(c) to derive from information of the type mentioned in paragraphs (a)
and (b) information for inclusion on the Natural Gas Services
Bulletin Board;
25 (d) to publish information on the Natural Gas Services Bulletin Board of
the kinds that may or must be included on the Natural Gas Services
Bulletin Board under the Rules;
(e) to manage information of the type mentioned in paragraphs (a), (b)
and (c);
30 (f) such other functions as are conferred on the Bulletin Board operator
by this Law, the Rules or any other law prescribed by the
Regulations for the purposes of this paragraph.
220--Powers of the Bulletin Board operator
The Bulletin Board operator has the power to do all things necessary or
35 convenient to be done for or in connection with the performance of its
functions.
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National Gas Law--Schedule
221--Immunity of the Bulletin Board operator
(1) The Bulletin Board operator or an officer or employee of the Bulletin Board
operator does not incur any civil monetary liability for an act or omission in
the performance or exercise, or purported performance or exercise, of a
5 function or power of the Bulletin Board operator under this Law or the Rules
unless the act or omission is done or made in bad faith or through negligence.
(2) The civil monetary liability for an act or omission of a kind referred to in
subsection (1) done or made through negligence may not exceed the
prescribed maximum amount.
10 (3) The Regulations may, for the purposes of subsection (2), without limitation
do all or any of the following:
(a) prescribe a maximum amount that is limited in its application to
persons, events, circumstances, losses or periods specified in the
Regulations;
15 (b) prescribe maximum amounts that vary in their application according
to the persons to whom or the events, circumstances, losses or
periods to which they are expressed to apply;
(c) prescribe the manner in which a maximum amount is to be divided
amongst claimants.
20 (4) The Bulletin Board operator may enter into an agreement with a person
varying or excluding the operation of a provision of this section and, to the
extent of that agreement, that provision does not apply.
(5) This section does not apply to any liability of an officer or employee of a
body corporate to the body corporate.
25 (6) In this section--
civil monetary liability means liability to pay damages or compensation or
any other amount ordered in a civil proceeding, but does not include liability
to pay a civil penalty under this Law, an infringement penalty under Chapter
8 Part 7 or the costs of a proceeding.
30 222--Fees for services provided
(1) The Bulletin Board operator may charge a fee specified, or a fee calculated in
accordance with a formula or methodology specified, in the Rules for access
by a person to--
(a) the Natural Gas Services Bulletin Board; or
35 (b) Bulletin Board information.
(2) The fee must not be such as to amount to taxation.
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Schedule--National Gas Law
Part 2--Bulletin Board information
223--Obligation to give information to the Bulletin Board operator
(1) A person of the following kind who has possession or control of information
in relation to natural gas services must give the Bulletin Board operator the
5 information if the person is required to do so under the Rules:
(a) a service provider;
(b) a gas market operator;
(c) a user;
(d) a non scheme pipeline user;
10 (e) a producer;
(f) a storage provider;
(g) another person who is prescribed by the Regulations for the purposes
of this paragraph.
(2) The information must be given to the Bulletin Board operator in accordance
15 with the Rules.
(3) Subsection (1) does not apply if the person is exempt under the Rules from
giving the information.
224--Person cannot rely on duty of confidence to avoid compliance
with obligation
20 A person must not refuse to comply with the requirement in section 223(1) on
the ground of any duty of confidence.
225--Giving to Bulletin Board operator false and misleading
information
A person must not give Bulletin Board information to the Bulletin Board
25 operator that the person knows is false or misleading in a material particular.
226--Immunity of persons giving information to the Bulletin Board
operator
(1) A person who gives Bulletin Board information to the Bulletin Board
operator does not incur any civil monetary liability for an act or omission in
30 giving that information unless the act or omission is done or made in bad faith
or through negligence.
(2) The civil monetary liability for an act or omission of a kind referred to in
subsection (1) done or made through negligence may not exceed the
prescribed maximum amount.
35 (3) The Regulations may, for the purposes of subsection (2), without limitation
do all or any of the following:
(a) prescribe a maximum amount that is limited in its application to
persons, events, circumstances, losses or periods specified in the
Regulations;
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(b) prescribe maximum amounts that vary in their application according
to the persons to whom or the events, circumstances, losses or
periods to which they are expressed to apply;
(c) prescribe the manner in which a maximum amount is to be divided
5 amongst claimants.
(4) A person mentioned in subsection (1) may enter into an agreement with
another person varying or excluding the operation of a provision of this
section and, to the extent of that agreement, that provision does not apply.
(5) In this section--
10 civil monetary liability means liability to pay damages or compensation or
any other amount ordered in a civil proceeding, but does not include liability
to pay a civil penalty under this Law, an infringement penalty under Chapter
8 Part 7 or the costs of a proceeding.
Part 3--Protection of information
15 227--Protection of information by the Bulletin Board operator
(1) The Bulletin Board operator must not copy, record, use or disclose
information that is Bulletin Board information, except for the purposes of
exercising powers or performing functions as the Bulletin Board operator.
(2) If a person ceases to be the Bulletin Board operator, the person must not
20 afterwards copy, record, use or disclose information that is Bulletin Board
information and that was disclosed to the person as the Bulletin Board
operator.
(3) Subsection (1) does not apply if--
(a) the Bulletin Board operator has the written consent for the copying,
25 recording, use or disclosure from--
(i) the person who gave the information; or
(ii) the person from whom the person referred to in
subparagraph (i) received that information; or
(b) the information is publicly available; or
30 (c) the information is required to be used or disclosed because of the
operation of a law of this jurisdiction or another participating
jurisdiction; or
(d) the information is also disclosed to the Bulletin Board operator--
(i) for reasons other than compliance with section 223(1); and
35 (ii) in circumstances other than those expressly permitted by the
Rules.
228--Protection of information by employees etc of the Bulletin Board
operator
(1) A person who is--
40 (a) an officer of the Bulletin Board operator; or
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Schedule--National Gas Law
(b) an employee of the Bulletin Board operator; or
(c) a person performing work for or rendering services to the Bulletin
Board operator otherwise than as an officer or employee,
must not copy, record, use or disclose information that is Bulletin Board
5 information, except in that person's capacity as a person who is exercising
powers or performing functions, or assisting in the exercise of powers or
performance of functions, for the Bulletin Board operator as the Bulletin
Board operator.
(2) If--
10 (a) information is Bulletin Board information; and
(b) the information is disclosed to a person in the person's capacity as--
(i) an officer of the Bulletin Board operator; or
(ii) an employee of the Bulletin Board operator; or
(iii) a person performing work for or rendering services to the
15 Bulletin Board operator otherwise than as an officer or
employee,
exercising powers or performing functions, or assisting in the
exercise of powers or performance of functions, for the Bulletin
Board operator; and
20 (c) 1 of the following applies:
(i) in the case of an officer of the Bulletin Board operator--the
person ceases to be an officer acting in that capacity;
(ii) in the case of an employee of the Bulletin Board operator--
the person ceases to be an employee acting in that capacity;
25 (iii) in the case of a person performing work for or rendering
services to the Bulletin Board operator otherwise than as an
officer or employee--the person ceases to be a person of
that kind acting in that capacity,
the person must not afterwards copy, record, use or disclose the
30 information.
(3) Subsections (1) and (2) do not apply if--
(a) the person has the written consent for the copying, recording, use or
disclosure from--
(i) the person who gave the information; or
35 (ii) the person from whom the person referred to in
subparagraph (i) received that information; or
(b) the information is publicly available; or
(c) the information is required to be used or disclosed because of the
operation of a law of this jurisdiction or another participating
40 jurisdiction; or
(d) the information is also disclosed to the person--
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National Gas Law--Schedule
(i) for reasons other than compliance with section 223(1); and
(ii) in circumstances other than those expressly permitted by the
Rules.
Chapter 8--Proceedings under the National Gas Law
5 Part 1--Proceedings generally
229--Instituting civil proceedings under this Law
(1) Proceedings may not be instituted in a court in respect of a breach of a
provision of this Law, the Regulations or Rules that is not an offence
provision by any person except as provided for in this Chapter.
10 (2) The AER may, in accordance with Chapter 8 Part 2, institute civil
proceedings in respect of a breach of--
(a) a provision of this Law that is not an offence provision (including a
provision that is a civil penalty provision or conduct provision); or
(b) a provision of the Regulations that is not an offence provision
15 (including a provision that is a civil penalty provision or conduct
provision); or
(c) a provision of the Rules (including a provision that is a civil penalty
provision or a conduct provision).
(3) A person other than the AER may, in accordance with Chapter 8 Part 2,
20 institute civil proceedings in respect of a breach of a conduct provision.
230--Time limit within which proceedings may be instituted
(1) The AER may only institute a proceeding for a breach, by a person, of a
provision of this Law, the Regulations or the Rules that is not an offence
provision within 6 years after the date on which the breach occurred.
25 (2) A person, other than the AER, may only institute a proceeding for a breach of
a conduct provision by another person within 6 years after the date on which
the breach occurred.
Part 2--Proceedings for breaches of this Law, Regulations
or the Rules
30 231--AER proceedings for breaches of this Law, Regulations or the
Rules that are not offences
(1) The Court may make an order, on application by the AER on behalf of the
Commonwealth, declaring that a person is in breach of a provision of this
Law, the Regulations or the Rules that is not an offence provision.
35 Note--
A Supreme Court of a participating jurisdiction that is a State may hear an
application by the AER under subsection (1) by operation of section 39(2) of
the Judiciary Act 1903 of the Commonwealth.
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(2) If the order declares a person to be in breach of a provision of this Law the
Regulations or the Rules that is not an offence provision, the order may
include 1 or more of the following:
(a) an order that the person pay a civil penalty determined in accordance
5 with this Law, the Regulations and the Rules if the breach is a breach
of a civil penalty provision;
(b) an order that the person cease, within a specified period, the act,
activity or practice constituting the breach;
(c) an order that the person take such action, or adopt such practice, as
10 the Court requires for remedying the breach or preventing a
recurrence of the breach;
(d) an order that the person implement a specified program for
compliance with this Law, the Regulations and the Rules;
(e) an order of a kind prescribed by the Regulations.
15 (3) If a person has engaged, is engaging or is proposing to engage in any conduct
in breach of a provision of this Law, the Regulations or the Rules that is not
an offence provision, the Court may, on application by the AER on behalf of
the Commonwealth, grant an injunction--
(a) restraining the person from engaging in the conduct; and
20 (b) if, in the Court's opinion, it is desirable to do so--requiring the
person to do something.
(4) The power of the Court under subsection (3) to grant an injunction restraining
a person from engaging in conduct of a particular kind may be exercised--
(a) if the Court is satisfied that the person has engaged in conduct of that
25 kind--whether or not it appears to the Court that the person intends
to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the Court that, if an injunction is not granted, it is
likely that the person will engage in conduct of that kind--whether
or not the person has previously engaged in conduct of that kind and
30 whether or not there is an imminent danger of substantial damage to
any person if the person engages in conduct of that kind.
232--Proceedings for declaration that a person is in breach of a
conduct provision
(1) The Court may make an order, on application by a person other than the
35 AER, declaring that another person is in breach of a conduct provision.
(2) If the order declares a person to be in breach of a conduct provision, the order
may include 1 or more of the following:
(a) an order that the person in breach cease, within a specified period,
the act, activity or practice constituting the breach;
40 (b) an order that the person in breach take such action, or adopt such
practice, as the Court requires for remedying the breach or
preventing a recurrence of the breach;
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(c) an order that the person in breach implement a specified program for
compliance with this Law, the Regulations and the Rules;
(d) an order of a kind prescribed by the Regulations.
(3) If a person has engaged, is engaging or is proposing to engage in any conduct
5 in breach of a conduct provision, the Court may, on application by another
person (other than the AER), grant an injunction--
(a) restraining the first mentioned person from engaging in the conduct;
and
(b) if, in the Court's opinion, it is desirable to do so--requiring the first
10 mentioned person to do something.
(4) The power of the Court under subsection (3) to grant an injunction restraining
a person from engaging in conduct of a particular kind may be exercised--
(a) if the Court is satisfied that the person has engaged in conduct of that
kind--whether or not it appears to the Court that the person intends
15 to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the Court that, if an injunction is not granted, it is
likely that the person will engage in conduct of that kind--whether
or not the person has previously engaged in conduct of that kind and
whether or not there is an imminent danger of substantial damage to
20 any person if the person in conduct of that kind.
233--Actions for damages by persons for breach of conduct provision
A person other than the AER who suffers loss or damage by conduct of
another person that was done in breach of a conduct provision may recover
the amount of the loss or damage by action against that other person in a court
25 of competent jurisdiction.
Part 3--Matters relating to breaches of this Law, the
Regulations or the Rules
234--Matters for which there must be regard in determining amount of
civil penalty
30 Every civil penalty ordered to be paid by a person declared to be in breach of
a provision of this Law, the Regulations or the Rules must be determined
having regard to all relevant matters, including--
(a) the nature and extent of the breach; and
(b) the nature and extent of any loss or damage suffered as a result of the
35 breach; and
(c) the circumstances in which the breach took place; and
(d) whether the person has engaged in any similar conduct and been
found to be in breach of a provision of this Law, the Regulations or
the Rules in respect of that conduct; and
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Schedule--National Gas Law
(e) whether the service provider had in place a compliance program
approved by the AER or required under the Rules, and if so, whether
the service provider has been complying with that program.
235--Breach of a civil penalty provision is not an offence
5 A breach of a civil penalty provision is not an offence.
236--Breaches of civil penalty provisions involving continuing failure
For the purpose of determining the civil penalty for a breach of a civil penalty
provision, if the breach consists of a failure to do something that is required to
be done, the breach is to be regarded as continuing until the act is done
10 despite the fact that any period within which, or time before which, the act is
required to be done has expired or passed.
237--Conduct in breach of more than 1 civil penalty provision
(1) If the conduct of a person constitutes a breach of 2 or more civil penalty
provisions, proceedings may be instituted under this Law against the person
15 in relation to the breach of any 1 or more of those provisions.
(2) However, the person is not liable to more than 1 civil penalty under this Law
in respect of the same conduct.
Note--
Clause 49 of Schedule 2 to this Law sets out further provisions in relation to double
20 jeopardy.
238--Persons involved in breach of civil penalty provision or conduct
provision
(1) A person must not--
(a) aid, abet, counsel or procure a breach of a civil penalty provision or
25 conduct provision by another person; or
(b) be in any way directly or indirectly knowingly concerned in, or party
to, a breach of a civil penalty provision or conduct provision by
another person.
(2) This Law applies to a person who breaches subsection (1) in relation to a civil
30 penalty provision or conduct provision as if the person were a person who has
breached the civil penalty provision or conduct provision.
239--Attempt to breach a civil penalty provision
A person who attempts to commit a breach of a civil penalty provision
commits a breach of that provision.
35 240--Civil penalties payable to the Commonwealth
If a person is ordered to pay a civil penalty, the penalty is payable to the
Commonwealth.
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Part 4--Judicial review of decisions under this Law, the
Regulations and the Rules
241--Definition
In this Part--
5 person aggrieved includes a person whose interests are adversely affected.
242--Applications for judicial review of decisions of the AEMC
(1) A person aggrieved by--
(a) a decision or determination of the AEMC under this Law, the
Regulations or the Rules; or
10 (b) a failure by the AEMC to make a decision or determination under
this Law, the Regulations or the Rules; or
(c) conduct engaged in, or proposed to be engaged in, by the AEMC for
the purpose of making a decision or determination under this Law,
the Regulations or the Rules,
15 may apply to the Court for judicial review of the decision or determination,
failure or conduct or proposed conduct.
Note--
The Commonwealth Minister, NCC and AER are subject to judicial review
under the Administrative Decisions (Judicial Review) Act 1977 of the
20 Commonwealth.
(2) Unless the Court otherwise orders, the making of an application to the Court
under subsection (1) does not affect the operation of the decision or
determination referred to in that subsection or prevent the taking of action to
implement the decision or determination.
25 243--Applications for judicial review of decisions of the Bulletin Board
operator
(1) A person aggrieved by--
(a) a decision or determination of the Bulletin Board operator under this
Law or the Rules; or
30 (b) a failure by the Bulletin Board operator to make a decision or
determination under this Law or the Rules; or
(c) conduct engaged in, or proposed to be engaged in, by the Bulletin
Board operator for the purpose of making a decision or determination
under this Law or the Rules,
35 may apply to the Court for judicial review of the decision or determination,
failure or conduct or proposed conduct.
(2) Unless the Court otherwise orders, the making of an application to the Court
under subsection (1) does not affect the operation of the decision or
determination referred to in that subsection or prevent the taking of action to
40 implement the decision or determination.
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Part 5--Merits review and other non-judicial review
Division 1--Interpretation
244--Definitions
In this Part--
5 AER information disclosure decision means a decision of the AER under
section 329 to disclose information, or the contents of a document;
affected or interested person or body means--
(a) a service provider to whom a reviewable regulatory decision applies;
(b) a user, prospective user or end user whose commercial interests are
10 materially affected by a reviewable regulatory decision;
(c) a user or consumer association;
(d) a person whose interests are affected by a reviewable regulatory
decision that is--
(i) a coverage determination; or
15 (ii) a 15-year no-coverage determination; or
(iii) a coverage revocation determination;
applicant means--
(a) an affected or interested person or body who has been granted leave
to apply for review by the Tribunal under Division 2; or
20 (b) a person who makes an application under section 263;
average annual regulated revenue means the annual average of regulated
revenue calculated for the regulatory period of an applicable access
arrangement;
coverage related light regulation decision means either of the following
25 reviewable regulatory decisions:
(a) a decision of the NCC under section 110(1);
(b) a decision of the NCC under section 119(3);
end user includes a person who acquires, or proposes to acquire, natural gas
for the purpose of on-selling that gas to a person who intends to consume that
30 gas;
intervener means a person or body referred to in section 253, 254 or 255 who
has intervened in a review under Division 2 with the leave of the Tribunal or
otherwise;
NCC recommendation means--
35 (a) a coverage recommendation; or
(b) a coverage revocation recommendation; or
(c) a no-coverage recommendation; or
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(d) a price regulation exemption recommendation;
original decision maker means a relevant Minister, the Commonwealth
Minister, the AER or the NCC;
regulated revenue means the total revenue earned or to be earned by a
5 covered pipeline service provider--
(a) under; and
(b) during the regulatory period of,
an applicable access arrangement through the provision of reference services
to which that arrangement applies;
10 regulatory period means the period specified in an applicable access
arrangement to be the regulatory period;
review under this Part means a review under Division 2 or Division 3;
reviewable regulatory decision means--
(a) a Ministerial coverage decision; or
15 (b) a light regulation determination or a decision of the NCC under
Chapter 3 Part 2 not to make a light regulation determination; or
(c) decision of the NCC under Chapter 3 Part 2 to revoke or not revoke a
light regulation determination; or
(d) an applicable access arrangement decision (other than a full access
20 arrangement decision that does not approve a full access
arrangement); or
(e) an AER ring fencing determination; or
(f) a decision of the AER under section 146 to give an exemption; or
(g) an associate contract decision; or
25 (h) a decision of an original decision maker that is prescribed by the
Regulations to be a reviewable regulatory decision,
but does not include a decision of the AER made under Chapter 10 Part 2;
small/medium user or consumer intervener means a user or consumer
intervener that--
30 (a) the members of which are only small to medium users or end users;
or
(b) if it does not have any such members, has, as an object or purpose,
the object or purpose of representing and promoting the interests of
small to medium users or end users;
35 small to medium user or end user means a user or end user whose annual
consumption of natural gas does not exceed a level (expressed in terajoules)
fixed by Regulation for the purposes of this definition;
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user or consumer association means an association or body (whether
incorporated or unincorporated)--
(a) the members of which include more than 1 user, prospective user or
end user; and
5 (b) that represents and promotes the interests of those members in
relation to the provision of natural gas services;
user or consumer interest group means an association or body (whether
incorporated or unincorporated)--
(a) that has, as an object or purpose, the object or purpose of
10 representing and promoting the interests of users or prospective users
or end users of natural gas services; but
(b) the members of which need not include a user, prospective user or
end user;
user or consumer intervener means--
15 (a) a user or consumer association; or
(b) a user or consumer interest group,
that has made a submission or comment in relation to the making of a
reviewable regulatory decision following an invitation to do so under this
Law or the Rules.
20 Division 2--Merits review for reviewable regulatory decisions
245--Applications for review
(1) Subject to this section, an affected or interested person or body, with the leave
of the Tribunal, may apply to the Tribunal for a review of a reviewable
regulatory decision.
25 (2) An application must--
(a) be made in the form and manner determined by the Tribunal; and
(b) specify the grounds for review being relied on.
246--Grounds for review
(1) An application under section 245(1) may be made only on 1 or more of the
30 following grounds:
(a) the original decision maker made an error of fact in the decision
maker's findings of facts, and that error of fact was material to the
making of the decision;
(b) the original decision maker made more than 1 error of fact in the
35 decision maker's findings of facts, and those errors of fact, in
combination, were material to the making of the decision;
(c) the exercise of the original decision maker's discretion was incorrect,
having regard to all the circumstances;
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(d) the original decision maker's decision was unreasonable, having
regard to all the circumstances.
(2) It is for the applicant to establish a ground listed in subsection (1).
247--By when an application must be made
5 (1) An application under section 245(1) in respect of a reviewable regulatory
decision (other than a coverage related light regulation decision) must be
made no later than 15 business days after the reviewable regulatory decision
is published in accordance with this Law or the Rules.
(2) An application under section 245(1) in respect of a coverage related light
10 regulation decision must be made--
(a) in the case of a decision of the NCC under section 110(1), no later
than 15 business days after the making of the coverage determination
relating to the coverage recommendation to which the decision under
section 110(1) is attached;
15 (b) in the case of a decision of the NCC under section 119(3), no later
than 15 business days after the making of the coverage revocation
determination relating to the coverage revocation recommendation to
which the decision under section 119(3) is attached.
248--Tribunal must not grant leave unless serious issue to be heard and
20 determined
Subject to this Division, the Tribunal must not grant leave to apply under
section 245(1) unless it appears to the Tribunal that there is a serious issue to
be heard and determined as to whether a ground for review set out in
section 246(1) exists.
25 249--Leave must be refused if application is about an error relating to
revenue amounts below specified threshold
(1) This section applies if--
(a) leave to apply under section 245(1) is about an error in a reviewable
regulatory decision that is a full access arrangement decision; and
30 (b) the ground for review relied on by the applicant relates to the amount
of revenue that may be earned by a covered pipeline service provider
that is specified in or derived from that decision.
(2) Despite section 248, the Tribunal must not grant leave to apply under
section 245(1) even if there is a serious issue to be heard and determined as to
35 whether a ground for review set out in section 246(1) exists unless the amount
that is specified in or derived from the decision exceeds the lesser of
$5 000 000 or 2% of the average annual regulated revenue of the covered
pipeline service provider.
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250--Tribunal must refuse to grant leave if submission not made or is
made late
The Tribunal must not grant leave to apply under section 245(1) to a person
or body referred to in paragraph (b), (c) or (d) of the definition of affected or
5 interested person or body in section 244 if that person or body--
(a) did not make a submission or comment in relation to the making of
the reviewable regulatory decision under review following an
invitation to do so under this Law or the Rules; or
(b) did make a submission or comment in relation to the making of the
10 reviewable regulatory decision under review following an invitation
to do so under this Law or the Rules but that submission--
(i) was not made within the time required under this Law or the
Rules following that invitation; and
(ii) was not taken into account in the making of the decision.
15 251--Tribunal may refuse to grant leave to service provider in certain
cases
(1) This section applies--
(a) in relation to an application under section 245(1) by a service
provider for a review of a reviewable regulatory decision that applies
20 to the service provider; and
(b) if the Tribunal is satisfied of the matters set out in section 248 or 249
to grant leave to apply under section 245(1).
(2) Despite being satisfied of the matters set out in section 248 or 249 to grant
leave to apply under section 245(1), the Tribunal may refuse to grant leave to
25 the service provider if the Tribunal is satisfied the service provider--
(a) without reasonable excuse--
(i) failed to comply with a request (including a request for
relevant information), or a direction made under this Law or
the Rules for the purpose of making the decision; or
30 (ii) conducted itself in a manner that resulted in the making of
the decision being delayed; or
(b) misled, or attempted to mislead--
(i) in all cases, the original decision maker on a matter relevant
to the original decision maker's decision;
35 (ii) in the case of a reviewable regulatory decision that is a
Ministerial coverage decision, the NCC on a matter relevant
to the making of an NCC recommendation relating to the
decision.
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252--Effect of application on operation of reviewable regulatory
decisions
An application under section 245(1)--
(a) does not the stay the operation of the following reviewable
5 regulatory decisions:
(i) an applicable access arrangement decision approving or
making an applicable access arrangement; or
(ii) an associate contract decision;
(b) stays the operation of any other reviewable regulatory decision on
10 the granting of leave to apply by the Tribunal, unless the Tribunal
otherwise orders.
253--Intervention by others in a review without leave
Only the following persons may intervene in a review under this Division
without leave of the Tribunal:
15 (a) a service provider to whom the reviewable regulatory decision being
reviewed applies;
(b) a Minister of a participating jurisdiction.
254--Leave for reviewable regulatory decision process participants
(1) The Tribunal must grant leave to a person or body to intervene in a review
20 under this Division if that person or body is a reviewable regulatory decision
process participant.
(2) In this section--
reviewable regulatory decision process participant means a person or body
(other than a user or consumer intervener) with a sufficient interest in the
25 reviewable regulatory decision being reviewed who--
(a) has made a submission or comment in relation to the making of that
decision within the time required under this Law or the Rules
following an invitation to do so under this Law or the Rules; or
(b) has made a submission or comment in relation to the making of that
30 decision outside the time required under this Law or the Rules
following an invitation to do so under this Law or the Rules but
which was taken into account in the making of that decision.
255--Leave for user or consumer intervener
(1) A user or consumer intervener may apply to the Tribunal for leave to
35 intervene in a review of a reviewable regulatory decision under this Division.
(2) The Tribunal may grant leave to a user or consumer intervener to intervene in
a review under this Division.
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Schedule--National Gas Law
(3) Without limiting subsection (2), the Tribunal may grant leave to a user or
consumer intervener to intervene in a review under this Division if the
Tribunal is satisfied--
(a) the user or consumer intervener, in its application for leave to
5 intervene, raises a matter that will not be raised by the original
decision maker or the applicant; or
(b) the information or material the user or consumer intervener wishes to
present, or the submissions the user or consumer intervener wishes to
make, in the review are likely to be better presented or made by the
10 user or consumer intervener rather than another party to the review;
or
(c) the interests of the user or consumer intervener or its members are
affected by the decision being reviewed.
(4) For the purposes of subsection (3)(c)--
15 (a) the interests of a user or consumer intervener are to be taken to be
affected if the reviewable regulatory decision being reviewed relates
to an object or purpose of the user or consumer intervener;
(b) the interests of a user or consumer intervener are not to be taken to
not be affected only because those interests do not coincide with the
20 interests of the applicant.
256--Interveners may raise new grounds for review
(1) An intervener may raise in a review under this Division any of the grounds
specified in section 246 even if the ground that is raised by the intervener is
not raised by the applicant.
25 (2) To avoid doubt, it is for the intervener to establish the ground referred to in
subsection (1).
257--Parties to a review under this Division
The parties to a review under this Division are--
(a) the applicant; and
30 (b) the original decision maker whose decision is the reviewable
regulatory decision being reviewed under this Division; and
(c) an intervener.
258--Matters that parties to a review may and may not raise in a
review
35 (1) An original decision maker whose decision is the reviewable regulatory
decision being reviewed under this Division may, in the review, raise--
(a) a matter not raised by the applicant or an intervener that relates to a
ground for review, or a matter raised in support of a ground for
review, raised by the applicant or an intervener;
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(b) a possible outcome or effect on the reviewable regulatory decision
being reviewed that the original decision maker considers may occur
as a consequence of the Tribunal making a determination setting
aside or varying the reviewable regulatory decision.
5 (2) A party (other than the original decision maker) to a review under this
Division may not raise any matter that was not raised in submissions in
relation to the reviewable regulatory decision before that decision was made.
259--Tribunal must make determination
(1) If, following an application, the Tribunal grants leave in accordance with
10 section 245, the Tribunal must make a determination in respect of the
application.
Note--
See section 260 for the time limit within which the Tribunal must make its
determination.
15 (2) A determination under this section may--
(a) affirm, set aside or vary the reviewable regulatory decision;
(b) remit the matter back to the original decision maker to make the
decision again, in accordance with any direction or recommendation
of the Tribunal.
20 (3) For the purposes of making a determination of the kind in subsection (2)(a),
the Tribunal may perform all the functions and exercise all the powers of the
original decision maker under this Law or the Rules.
(4) In deciding whether to remit a matter back to the original decision maker to
make the decision again, the Tribunal must have regard to the nature and
25 relative complexities of--
(a) the reviewable regulatory decision; and
(b) the matter the subject of the review.
(5) A determination by the Tribunal affirming, setting aside or varying the
reviewable regulatory decision is, for the purposes of this Law (other than this
30 Part), to be taken to be a decision of the original decision maker.
260--Target time limit for Tribunal for making a determination under
this Division
(1) The Tribunal must use its best endeavours to make a determination in respect
of the application for review under this Division--
35 (a) within 3 months after the Tribunal grants leave in accordance with
section 245 (the standard period); or
(b) if the standard period is extended under this section--that period as
extended.
(2) If the Tribunal is unable to make a determination in respect of the application
40 within the standard period, or that period as extended, the Tribunal must, by
notice in writing, extend the standard period or that period by a specified
period.
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Schedule--National Gas Law
(3) The Tribunal must give a copy of the notice to--
(a) the applicant; and
(b) every other party to the application.
(4) The Tribunal may extend the standard period, or that period as extended,
5 more than once.
(5) If the Tribunal extends a period, it must publish a notice in a newspaper
circulating generally throughout Australia--
(a) stating that it has done so; and
(b) specifying a date by which it must now use its best endeavours to
10 make the determination.
261--Matters to be considered by Tribunal in making determination
(1) Subject to this section, the Tribunal, in reviewing a reviewable regulatory
decision, must not consider any matter other than review related matter.
(2) The Tribunal, in reviewing a reviewable regulatory decision, must--
15 (a) in all cases, have regard to any document--
(i) prepared, and used, by the original decision maker for the
purpose of making the reviewable regulatory decision; and
(ii) that the decision maker has made publicly available; and
(b) in the case of a reviewable regulatory decision that is a Ministerial
20 coverage decision, also have regard to any document--
(i) prepared, and used, by the NCC for the purpose of making
the NCC recommendation relating to the Ministerial
coverage decision; and
(ii) that the NCC has made publicly available.
25 (3) In addition, if in a review, the Tribunal is of the view that a ground of review
has been established, the Tribunal may allow new information or material to
be submitted if the new information or material--
(a) would assist it on any aspect of the determination to be made; and
(b) was not unreasonably withheld from--
30 (i) in all cases, the original decision maker when the decision
maker was making the reviewable regulatory decision; and
(ii) in the case of a reviewable regulatory decision that is a
Ministerial coverage decision, the NCC when it was it
making the NCC recommendation related to Ministerial
35 coverage decision.
(4) Subject to this Law, for the purpose of subsection (3)(b), information or
material not provided to the original decision maker or the NCC (as the case
requires) following a request for that information or material by the original
decision maker or the NCC under this Law or the Rules is to be taken to have
40 been unreasonably withheld.
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National Gas Law--Schedule
(5) Subsection (4) does not limit what may constitute an unreasonable
withholding of information or material.
(6) In the case of a review of a reviewable regulatory decision of the AER that is
a decision to make a full access arrangement decision in place of an access
5 arrangement that the AER did not approve, the Tribunal may consider the
reasons of the AER for its decision not to approve the access arrangement.
(7) In this section--
review related matter means--
(a) the application for review and submissions in support of the
10 application; and
(b) the reviewable regulatory decision and the written record of it and
any written reasons for it; and
(c) in the case of a reviewable regulatory decision that is an applicable
access arrangement decision--any document, proposal or
15 information required or allowed under the Rules to be submitted as
part of the process for the making of the decision; and
(d) any written submissions made to the original decision maker before
the reviewable regulatory decision was made or the NCC before the
making of an NCC recommendation; and
20 (e) any reports and materials relied on by the original decision maker in
making the reviewable regulatory decision or the NCC in making an
NCC recommendation; and
(f) any draft of the reviewable regulatory decision or NCC
recommendation; and
25 (g) any submissions on--
(i) the draft of the reviewable regulatory decision or the
reviewable regulatory decision itself considered by the
original decision maker; or
(ii) the draft of an NCC recommendation or the NCC
30 recommendation itself considered by the NCC; and
(h) the transcript (if any) of any hearing conducted by the original
decision maker for the purpose of making the reviewable regulatory
decision.
262--Assistance from NCC in certain cases
35 (1) This section applies if the reviewable regulatory decision being reviewed
under this Division is a Ministerial coverage decision.
(2) The member of the Tribunal presiding in the review may require the NCC to
give information and other assistance and to make reports, as specified, by the
member for the purposes of the review.
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Schedule--National Gas Law
Division 3--Tribunal review of AER information disclosure
decisions under section 329
263--Application for review
(1) A person whose interests are adversely affected by an AER information
5 disclosure decision may apply to the Tribunal for a review of the decision.
(2) An application must be made in the form and manner determined by the
Tribunal.
(3) An application may only be made on the ground that--
(a) the decision was not made in accordance with law; or
10 (b) the decision is unreasonable having regard to all relevant
circumstances.
(4) The person must lodge the application with the Tribunal no later than 5
business days after the date of the notice given under section 329(2), (3) or
(6) to which the AER information disclosure decision relates (whichever is
15 the later).
(5) An application under this section stays the operation of the decision until the
earlier of--
(a) 20 business days; or
(b) the making of a determination by the Tribunal in respect of the
20 application.
264--Exclusion of public in certain cases
On the application of a party to a review under this Division, the Tribunal
may conduct the review in the absence of the public.
265--Determination in the review
25 (1) Subject to this Part, on receipt of an application under section 263, the
Tribunal must make a determination in respect of the application.
(2) A determination under this section must only--
(a) affirm the AER information disclosure decision; or
(b) forbid disclosure by the AER of the information or document to
30 which the AER information disclosure decision the subject of the
review relates; or
(c) restrict, as specified in the determination, the intended disclosure by
the AER of the information or document to which the AER
information disclosure decision the subject of the review relates.
35 (3) For the purposes of making a determination of the kind in subsection (2)(a),
the Tribunal may perform all the functions and exercise all the powers of the
AER under this Law or the Rules.
(4) A determination by the Tribunal affirming, forbidding or restricting the AER
information disclosure decision is, for the purposes of this Law (other than
40 this Part), to be taken to be a decision of the AER.
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National Gas Law--Schedule
266--Tribunal must be taken to have affirmed decision if decision not
made within time
(1) This section applies if the Tribunal does not make a determination under
section 265 within 20 business days after an application is lodged under
5 section 263.
(2) The Tribunal must be taken to have made a determination under section 265
affirming the AER information disclosure decision to which the application
relates.
267--Assistance from the AER in certain cases
10 The member of the Tribunal presiding in the review may require the AER to
give information and other assistance and to make reports, as specified, by the
member for the purposes of the review.
Division 4--General
268--Costs in a review
15 (1) Subject to this section, the Tribunal may order that a party to a review under
this Part pay all or a specified part of the costs of another party to the review.
(2) The Tribunal must not make an order requiring an original decision maker or
small/medium user or consumer intervener to pay the costs of another party to
the review unless the Tribunal considers that the original decision maker or
20 intervener has conducted their case in the review without due regard to--
(a) the costs that would have to be incurred by another party to the
review as a result of that conduct; or
(b) the time required by--
(i) the Tribunal to hear the review as a result of that conduct; or
25 (ii) another party to prepare their case as a result of that
conduct; or
(c) the submissions or arguments made to the Tribunal by another party.
(3) The Tribunal may make an order requiring a user or consumer intervener
(that is not a small/medium user or consumer intervener) that has intervened
30 in the review to pay all or part of the costs of another party to the review if
the Tribunal considers that the intervener has conducted their case in the
review without due regard to--
(a) the costs that would have to be incurred by another party to the
review as a result of that conduct; or
35 (b) the time required by--
(i) the Tribunal to hear the review as a result of that conduct; or
(ii) another party to prepare their case as a result of that
conduct; or
(c) the submissions or arguments made to the Tribunal by another party.
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Schedule--National Gas Law
269--Amount of costs
If the Tribunal makes an order for costs in a review under this Part, the
Tribunal may in that order fix the amount of costs payable by a party to the
review on--
5 (a) a party and party basis; or
(b) a solicitor and client basis; or
(c) an indemnity basis; or
(d) any other basis as the Tribunal may decide.
270--Review of Part
10 (1) The MCE must cause a review of this Part to be undertaken within 7 years
after the commencement of this Part by a person nominated by the MCE.
(2) The MCE must specify the matters to be addressed in the review.
(3) The person undertaking the review must, during the review, invite public
comment and submissions about the matters to be addressed in the review.
15 (4) The person undertaking the review must report, in writing, to the MCE on the
outcome of the review by the date specified by the MCE.
Part 6--Enforcement of access determinations
271--Enforcement of access determinations
(1) If the Court is satisfied, on the application of a party to an access
20 determination, that another party to the determination has engaged, is
engaging, or is proposing to engage in conduct that constitutes a
contravention of the determination, the Court may make all or any of the
following orders:
(a) an order granting an injunction on such terms as the Court thinks
25 appropriate--
(i) restraining the other party from engaging in the conduct; or
(ii) if the conduct involves refusing or failing to do something--
requiring the other party to do that thing;
(b) an order directing the other party to compensate the applicant for loss
30 or damage suffered as a result of the contravention;
(c) any other order that the Court thinks appropriate.
(2) The revocation of an access determination does not affect any remedy under
subsection (1) in respect of a contravention of the determination that occurred
when the determination was in force.
35 (3) If the Court has power under subsection (1) to grant an injunction restraining
a person from engaging in particular conduct, or requiring a person to do
anything, the Court may make any other orders (including granting an
injunction) that it thinks appropriate against any other person who was
involved in the contravention concerned.
138 HA GP 177-A OPC 169
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National Gas Law--Schedule
(4) A reference in this section to a person involved in the contravention is a
reference to a person who has--
(a) aided, abetted, counselled or procured the contravention; or
(b) induced the contravention, whether through threats or promises or
5 otherwise; or
(c) been in any way (directly or indirectly) knowingly concerned in or a
party to the contravention; or
(d) conspired with others to effect the contravention.
272--Consent injunctions
10 On an application for an injunction under section 271, the Court may grant an
injunction by consent of all of the parties to the proceedings, whether or not
the Court is satisfied that the section applies.
273--Interim injunctions
The Court may grant an interim injunction pending determination of an
15 application under section 271.
274--Factors relevant to granting a restraining injunction
The power of the Court to grant an injunction under section 271 restraining a
person from engaging in conduct may be exercised whether or not--
(a) it appears to the Court that the person intends to engage again, or to
20 continue to engage, in conduct of that kind; or
(b) the person has previously engaged in conduct of that kind; or
(c) there is an imminent danger of substantial damage to any person if
the first mentioned person engages in conduct of that kind.
275--Factors relevant to granting a mandatory injunction
25 The power of the Court to grant an injunction under section 271 requiring a
person to do a thing may be exercised whether or not--
(a) it appears to the Court that the person intends to refuse or fail again,
or to continue to refuse or fail, to do that thing; or
(b) the person has previously refused or failed to do that thing; or
30 (c) there is an imminent danger of substantial damage to any person if
the first mentioned person refuses or fails to do that thing.
276--Discharge or variation of injunction or other order
The Court may discharge or vary an injunction or order granted under this
Part.
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Schedule--National Gas Law
Part 7--Infringement notices
277--Power to serve notice
(1) The AER may serve an infringement notice on a person that the AER has
reason to believe has breached a civil penalty provision.
5 (2) The AER must, however, serve an infringement notice not later than 12
months after the date on which the AER forms a belief that there has been a
breach of a civil penalty provision.
(3) An infringement notice may be served on a natural person--
(a) by delivering it personally to the person; or
10 (b) by sending it by post addressed to the person to their usual or last
known place of residence or business.
(4) An infringement notice may be served on a person that is a body corporate--
(a) by delivering it personally to the registered office or usual or last
known place of business of the body corporate; or
15 (b) by sending it by post addressed to the body corporate to its registered
office or usual or last known place of business.
278--Form of notice
An infringement notice must state--
(a) the date of the notice;
20 (b) that the alleged breach is a breach of the civil penalty provision;
(c) the nature, and a brief description, of the alleged breach;
(d) the date, time and place of the alleged breach;
(e) the infringement penalty for the alleged breach;
(f) the manner in which the infringement penalty may be paid;
25 (g) the time (being not less than 28 days after the date on which the
notice is served) within which the infringement penalty must be paid;
(h) that, if the amount of the infringement penalty is paid before the end
of the time specified in the notice, proceedings will not be instituted
in respect of the alleged breach by the AER unless the notice is
30 withdrawn before the end of that time in accordance with
section 282;
(i) that the person is entitled to disregard the notice and defend any
proceedings in respect of the civil penalty provision;
(j) any other particulars prescribed by the Regulations.
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National Gas Law--Schedule
279--Infringement penalty
The infringement penalty for a breach of a civil penalty provision is--
(a) if the breach is alleged to have been committed by a natural person--
$4 000 or any lesser amount that is prescribed by the Regulations in
5 relation to the civil penalty provision;
(b) if the breach is alleged to have been committed by a body
corporate--$20 000 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision.
280--AER cannot institute proceedings while infringement notice on
10 foot
On serving an infringement notice under this Part, the AER must not institute
a proceeding in respect of the breach for which the infringement notice was
served if--
(a) the time for payment stated in the infringement notice has not
15 expired; and
(b) the infringement notice has not been withdrawn by the AER in
accordance with section 282.
281--Late payment of penalty
The AER may accept payment of the infringement penalty even after the
20 expiration of the time for payment stated in the infringement notice if--
(a) a proceeding has not been instituted in respect of the breach to which
the infringement penalty relates; and
(b) the infringement notice has not been withdrawn by the AER in
accordance with section 282.
25 282--Withdrawal of notice
(1) The AER may withdraw an infringement notice at any time before the end of
the time for payment specified in the notice by serving a withdrawal notice on
the person served with the infringement notice.
(2) A withdrawal notice may be served on a natural person--
30 (a) by delivering it personally to the person; or
(b) by sending it by post addressed to the person to their usual or last
known place of residence or business.
(3) A withdrawal notice may be served on a person that is a body corporate--
(a) by delivering it personally to the registered office or usual or last
35 known place of business of the body corporate; or
(b) by sending it by post addressed to the body corporate to its registered
office or usual or last known place of business.
(4) An infringement notice may be withdrawn even if the infringement penalty
has been paid.
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Schedule--National Gas Law
283--Refund of infringement penalty
If an infringement notice is withdrawn in accordance with section 282, the
amount of any infringement penalty paid must be refunded by the AER.
284--Payment expiates breach of civil penalty provision
5 No proceedings may be taken by the AER against a person on whom an
infringement notice was served in respect of an alleged breach of a civil
penalty provision if--
(a) the infringement penalty is--
(i) paid within the time for payment stated in the notice; and
10 (ii) not withdrawn by the AER within the time for payment
stated in the notice in accordance with section 282; or
(b) the infringement penalty is accepted in accordance with section 281.
285--Payment not to have certain consequences
The payment of an infringement penalty under this Part is not and must not be
15 taken to be an admission of a breach of a civil penalty provision or an
admission of liability for the purpose of any proceeding instituted in respect
of the breach.
286--Conduct in breach of more than 1 civil penalty provision
(1) If the conduct of a person constitutes a breach of 2 or more civil penalty
20 provisions, an infringement notice may be served on the person under this
Part in relation to the breach of any 1 or more of those provisions.
(2) However, the person is not liable to pay more than 1 infringement penalty in
respect of the same conduct.
Part 8--Further provision for corporate liability for
25 breaches of this Law etc
287--Definition
In this Part--
breach provision means an offence provision, a civil penalty provision or a
conduct provision.
30 288--Offences and breaches by corporations
(1) If a corporation contravenes a breach provision, each officer of the
corporation is to be taken to have contravened the breach provision if the
officer knowingly authorised or permitted the contravention or breach.
(2) An officer of a corporation may be proceeded against under a breach
35 provision pursuant to this section whether or not the corporation has been
proceeded against under the provision.
(3) Nothing in this section affects the liability of a corporation for a
contravention of a breach provision.
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National Gas (South Australia) Bill 2008
National Gas Law--Schedule
289--Corporations also in breach if officers and employees are in
breach
If an officer or employee of a corporation commits an act in their capacity as
officer or employee of the corporation that would, if that act were committed
5 by the corporation, constitute a breach of a provision of this Law, the
Regulations or the Rules, that corporation is to be taken to have contravened
that provision.
Chapter 9--The making of the National Gas Rules
Part 1--General
10 Division 1--Interpretation
290--Definitions
In this Chapter--
AEMC initiated Rule means a Rule of the kind referred to in section 295(2);
AEMC Rule review means a review conducted by the AEMC under Chapter
15 2 Part 2 Division 5;
gas market regulatory body means--
(a) the AER;
(b) the ERA;
(c) VENCorp;
20 (d) GMCo;
(e) REMCo;
(f) a person or body prescribed by Regulation to be a gas market
regulatory body;
GMCo means the Gas Market Company Ltd (ACN 095 400 258);
25 market initiated proposed Rule means a request for a Rule made under
section 295(1) in respect of which the AEMC publishes a notice under
section 303;
more preferable Rule has the meaning given by section 296;
non-controversial Rule means a Rule that is unlikely to have a significant
30 effect on a market for gas or the regulation of pipeline services;
proposed Rule means--
(a) a market initiated proposed Rule; or
(b) a proposal for an AEMC initiated Rule; or
(c) a proposed more preferable Rule;
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National Gas (South Australia) Bill 2008
Schedule--National Gas Law
publish means--
(a) in relation to a notice required to be published under this Chapter
(except section 294 or 315)--publish in the South Australian
Government Gazette, on the AEMC's website and in a newspaper
5 circulating generally throughout Australia;
(b) in relation to a decision under section 301(2)--publish on the
AEMC's website and make available at the offices of the AEMC;
(c) in relation to a proposed Rule referred to in section 303 and any
other documents prescribed by the Regulations in relation to a
10 proposed Rule referred to in section 303--publish on the AEMC's
website and make available at the offices of the AEMC;
(d) in relation to a draft Rule determination or final Rule
determination--publish on the AEMC's website and make available
at the offices of the AEMC;
15 (e) in relation to any submissions or comments received by the AEMC
under this Chapter--subject to section 319, publish on the AEMC's
website and make available at the offices of the AEMC;
(f) in relation to a report prepared under section 320--publish on the
AEMC's website and make available at the offices of the AEMC;
20 REMCo means the Retail Energy Market Company Ltd (ACN 103 318 556);
urgent Rule means a Rule relating to any matter or thing that, if not made as
a matter of urgency, will result in that matter or thing imminently prejudicing
or threatening the supply of gas.
Division 2--Rule making tests
25 291--Application of national gas objective
(1) The AEMC may only make a Rule if it is satisfied that the Rule will or is
likely to contribute to the achievement of the national gas objective.
(2) For the purposes of subsection (1), the AEMC may give such weight to any
aspect of the national gas objective as it considers appropriate in all the
30 circumstances, having regard to any relevant MCE statement of policy
principles.
292--AEMC must take into account form of regulation factors in
certain cases
In addition to complying with sections 291 and 293, the AEMC must take
35 into account the form of regulation factors and any other matter the AEMC
considers relevant--
(a) in making a Rule that--
(i) specifies a pipeline service as a reference service; or
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National Gas (South Australia) Bill 2008
National Gas Law--Schedule
(ii) confers a function or power on the AER to specify under a
full access arrangement decision approving or making an
access arrangement a pipeline service (to which the relevant
applicable access arrangement applies) as a reference
5 service; or
(b) in revoking a Rule that has been made or is in force that--
(i) specifies a pipeline service as a reference service; or
(ii) confers a function or power on the AER to specify under a
full access arrangement decision approving or making an
10 access arrangement a pipeline service (to which the relevant
applicable access arrangement applies) as a reference
service.
293--AEMC must take into account revenue and pricing principles in
certain cases
15 In addition to complying with sections 291 and 292, the AEMC must take
into account the revenue and pricing principles in making a Rule for or with
respect to any matter or thing specified in items 40 to 48 of Schedule 1 to this
Law.
Part 2--Initial National Gas Rules
20 294--South Australian Minister to make initial National Gas Rules
(1) The Minister of the Crown in right of South Australia administering Part 2 of
the National Gas (South Australia) Act 2008 of South Australia may make
Rules for or with respect to--
(a) any matter or thing referred to in section 74 and Schedule 1 to this
25 Law;
(b) matters of a transitional nature relating to the transition from the old
access law and Gas Code to the application of this Law and the
Rules.
(2) In subsection (1)--
30 matters of a transitional nature include matters of an application or savings
nature.
(3) As soon as practicable after making Rules under subsection (1), the Minister
referred to in that subsection must--
(a) publish notice of the making of the Rules in the South Australian
35 Government Gazette; and
(b) make the Rules publicly available.
(4) Section 74(3) applies to the making of Rules under subsection (1) as if the
Rules being made under subsection (1) were Rules being made by the AEMC.
(5) The notice referred to in subsection (3)(a) must state--
40 (a) the date on which the Rules commence operation; or
HA GP 177-A OPC 169 145
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Schedule--National Gas Law
(b) if different Rules will commence operation on different dates, those
dates.
(6) The Rules made under subsection (1) may only be made on the
recommendation of the MCE.
5 (7) If the Minister referred to in subsection (1) makes Rules under that
subsection, the Minister cannot make another Rule under that subsection.
Part 3--Procedure for the making of a Rule by the AEMC
295--Initiation of making of a Rule
(1) The AEMC may make a Rule at the request of any person or the MCE.
10 Note--
Section 74 and Schedule 1 to this Law specify the subject matter for Rules.
(2) The AEMC must not make a Rule without a request under subsection (1)
unless--
(a) it considers the Rule corrects a minor error in the Rules; or
15 (b) it considers the Rule involves a non-material change to the Rules; or
(c) the Rule is in respect of any matter that is prescribed by the
Regulations as a matter on which it may make a Rule on its own
initiative.
296--AEMC may make more preferable Rule in certain cases
20 The AEMC may make a Rule that is different (including materially different)
from a market initiated proposed Rule (a more preferable Rule) if the AEMC
is satisfied that, having regard to the issue or issues that were raised by the
market initiated proposed Rule (to which the more preferable Rule relates),
the more preferable Rule will or is likely to better contribute to the
25 achievement of the national gas objective.
297--AEMC may make Rules that are consequential to a Rule request
(1) Despite section 295(2), the AEMC may, having regard to a request to make a
Rule under section 295(1), make a Rule that is necessary or consequential to
the Rule that is to be made on that request.
30 (2) For the purposes of this Chapter, the AEMC must treat a Rule it may make
under subsection (1) as if it were part of the Rule to be made on that request.
298--Content of requests for a Rule
A request for the making of a Rule--
(a) must contain the information prescribed by the Regulations; and
35 (b) must, subject to section 299, be accompanied by the fee