NATIONAL GAS (SOUTH AUSTRALIA) ACT 2008 - SCHEDULE

Schedule—National Gas Law

Chapter 1—Preliminary

Part 1—Citation and interpretation

1—Citation

This law may be cited as the National Gas Law .

2—Definitions

(1) In this Law—

ACCC means the Australian Competition and Consumer Commission established by section 6A of the Competition and Consumer Act 2010 of the Commonwealth;

access arrangement means an arrangement setting out terms and conditions about access to pipeline services provided or to be provided by means of a scheme pipeline;

access determination means a determination of the relevant adjudicator for an access dispute under Chapter 5 Part 5 and includes a determination varied under Part 6 of that 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 pipeline and includes a matter that is deemed to be an access dispute under the Rules;

adoptive jurisdiction means a participating jurisdiction for which AEMO is authorised to exercise its declared system functions or STTM functions;

AEMC means the Australian Energy Market Commission established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia;

AEMO amendments means—

(a) the amendments to this Law made by the National Gas (South Australia) (National Gas Law—Australian Energy Market Operator) Amendment Act 2009 ; and

(b) the amendments to the Rules made by the National Gas (South Australia) (National Gas Rules—Australian Energy Market Operator) Amendment Rules 2009 ; and

AER means the Australian Energy Regulator established by section 44AE of the Competition and Consumer Act 2010 of the Commonwealth;

AER Compliance Procedures and Guidelines has the meaning given by section 64F;

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 (other than making a rate of return instrument) that relates to the economic regulation of pipeline services provided by a service provider—

(a) by means of; or

(b) in connection with,

a pipeline and includes a function or power performed or exercised by the AER under this Law or the Rules (other than making a rate of return instrument) that relates to—

(d) a ring fencing decision;

(e) an applicable access arrangement decision;

(f) an access determination (if the AER is the dispute resolution body);

Note—

The application of a rate of return instrument under this Law is an AER economic regulatory function or power. See section 30Q(2).

AER gas price reporting functions means the functions of the AER performed under section 27(1)(fa);

AER ring fencing determination means a determination of the AER under section 143(1);

AER trial waiver functions means the functions conferred on the AER under Chapter 2 Part 1 Division 1B;

annual turnover has the same meaning as in section 2(1) of Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth;

applicable access arrangement means an access arrangement that has taken effect after being approved or made by the AER under the Rules and includes an applicable access arrangement as varied—

(a) under the Rules; or

(b) by an access determination as provided by this Law or the Rules;

applicable access arrangement decision means a decision of the AER under the Rules that—

(a) approves or does not approve an access arrangement or revisions to an applicable access arrangement submitted to the AER under section 113 or the Rules; or

(b) makes an access arrangement—

(i) in place of an access arrangement the AER does not approve in that decision; or

(ii) because a scheme pipeline service provider does not submit an access arrangement in accordance with section 113 or the Rules; or

(i) in place of revisions submitted to the AER under section 113 that the AER does not approve in that decision; or

(ii) because a scheme pipeline service provider does not submit revisions to the AER under section 113;

application Act means an Act of a participating jurisdiction that applies, as a law of that jurisdiction, this Law or any part of this Law;

approved associate contract means an associate contract approved by the AER under an associate contract decision;

associate in relation to a person has the same meaning it would have under Division 2 of Part 1.2 of the Corporations Act 2001 of the Commonwealth if sections 13, 16(2) and 17 did not form part of that Act;

associate contract means—

(a) a contract, arrangement or understanding between a service provider and an associate of the service provider in connection with the provision of an associate pipeline service; or

(b) a contract, arrangement or understanding between a service provider and any person in connection with the provision of an associate pipeline service—

(i) that provides a direct or indirect benefit to an associate; and

(ii) that is not at arm's length;

associate contract decision means a decision of the AER under the Rules that approves or does not approve an associate contract for the purposes of Chapter 4 Part 2 Division 4;

associate pipeline service means a pipeline service provided by means of a pipeline other than a pipeline to which a greenfields incentive determination applies;

Australian Energy Market Operator or AEMO means Australian Energy Market Operator Limited (ACN 072 010 327);

BB Procedures means Procedures directed at regulating the Gas Bulletin Board;

biogas means a gas derived or recovered from organic matter other than fossilised organic matter;

biomethane means a substance—

(a) that is in a gaseous state at standard temperature and pressure; and

(b) the principal constituent of which is methane; and

(d) that is suitable for consumption;

blend processing facility means a facility for 1, or more, of the following:

(a) the blending of 1 or more primary gases, with or without other substances, for injection into a pipeline;

(b) the separation of a gas blend withdrawn from a pipeline into constituent gases before re-injection into a pipeline as—

(i) a primary gas; or

(ii) a gas blend;

blend processing service means a service provided by means of a blend processing facility;

blend processing service provider means a person who owns, operates or controls a blend processing facility;

Bulletin Board information means information that—

(a) a person gives to AEMO or the AER to comply with Chapter 7 (or any Rules under that Chapter); or

(b) a person gives to AEMO in its capacity as operator of the Gas Bulletin Board in circumstances expressly permitted by the Rules;

capacity auction means an auction conducted by AEMO through which a person may buy transportation capacity;

capacity auction agreement means an agreement that relates to participation in a capacity auction and to which AEMO and persons participating in the capacity auction are parties;

capacity auction functions of AEMO are set out in section 91BRM(1);

capacity auction information means information that––

(a) a person gives to AEMO, to comply with section 91FEE(1); or

(b) a person gives, in circumstances expressly required or permitted by the Procedures or Rules—

(i) to AEMO in its capacity as operator of a capacity auction in which the person participates; or

(ii) to AEMO in its capacity as operator of a regulated gas market or a gas trading exchange if that information is to be used for the purpose of a capacity auction in which the person participates;

capacity auction participant means a person (other than AEMO) who is, or who was at the relevant time, a party to a capacity auction agreement;

Capacity Transfer and Auction Procedures means Procedures directed at the operation and administration of capacity auctions and transaction support arrangements;

changeover date means—

(a) a date fixed by or under legislation of a participating jurisdiction for AEMO's assumption of responsibility for the operation of a gas market in the relevant jurisdiction under this Law and the Rules; or

(b) a date fixed by Ministerial Gazette notice as the changeover date;

Note—

The changeover date may vary from gas market to gas market, from provision to provision and from jurisdiction to jurisdiction. In addition, AEMO's assumption of statutory functions in a particular participating jurisdiction may occur in stages on different changeover dates.

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 monetary liability means a liability for damages, compensation or any other monetary amount that can be recovered by way of civil proceedings but does not include a liability for a civil penalty or an infringement penalty under this Law or a liability for the costs of a proceeding;

civil penalty —see section 3A;

civil penalty provision has the meaning given by section 3;

classification decision means a decision of the AER under Chapter 3 Part 6 Division 1;

commission , in relation to a pipeline, has the meaning given by section 12;

Commonwealth Minister means the Minister of the Commonwealth administering the Australian Energy Market Act 2004 of the Commonwealth;

compression service facility means—

(a) a designated compression service facility; or

(b) any other facility or part of a facility (whether or not forming part of another facility or located on or connected to another facility) for compressing covered gas other than—

(i) a facility operated as part of a gathering system operated as part of an upstream producing operation for processable gas; or

(ii) anything downstream of a point on a pipeline from which a person takes covered gas for consumption purposes;

compression service provider means a person who owns, controls or operates a compression service facility;

conduct provision has the meaning given by section 4;

constituent components , in relation to a designated regulatory decision, means the matters that constitute the elements or components of the designated regulatory decision and on which that designated regulatory decision is based and includes—

(a) matters that go to the making of the designated regulatory decision; and

(b) decisions made by the AER for the purposes of the designated regulatory decision;

covered gas means the following:

(a) a primary gas;

(b) a gas blend;

covered gas industry includes—

(a) activities and transactions relating to the following:

(i) processable gas;

(ii) biogas;

(iii) covered gas, including liquefied natural gas, and covered gas services;

(iv) covered gas industry facilities;

(v) services provided by means of covered gas industry facilities; and

(b) activities and transactions relating to petroleum tenements; and

(c) any other activity or transaction, or type of activity or transaction, specified by the Regulations for the purpose of this definition;

covered gas industry facility means the following:

(a) a blend processing facility;

(b) a compression service facility;

(d) an LNG facility;

(e) a pipeline;

(f) a storage facility;

(g) a user facility;

(h) another facility of a type specified by the Regulations for the purpose of this definition;

covered gas service means the following:

(a) a pipeline service;

(b) the supply of covered gas;

declared distribution system of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

declared LNG storage provider of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

declared system functions —AEMO's declared system functions are as set out in section 91BA(1);

declared system provisions means—

(a) Chapter 2 Part 6 Division 2; and

(b) the Rules regulating the declared wholesale gas market of an adoptive jurisdiction or otherwise relevant to Chapter 2 Part 6 Division 2;

declared transmission system of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

declared wholesale gas market means the wholesale market for covered gas defined in the application Act of an adoptive jurisdiction;

designated compression service facility means a facility or part of a facility for compressing covered gas prescribed by the Regulations as a designated compression service facility;

designated pipeline means a pipeline classified by the Regulations, or designated in the application Act of a participating jurisdiction, as a designated pipeline and includes an extension to, or expansion of the capacity of, the pipeline that is taken to be part of the pipeline under section 18;

Note—

A designated pipeline is a scheme pipeline. See the definition of scheme pipeline .

designated regulatory decision means an applicable access arrangement decision (other than a decision that does not approve an access arrangement), or a decision prescribed by the Regulations to be a designated regulatory decision;

developable capacity means the difference between the current capacity of a pipeline and the capacity of a pipeline which would be available if a new facility was constructed, but does not include any new capacity of a pipeline resulting from an extension to the geographic range of a pipeline;

dispute resolution body means the AER;

Note—

In Western Australia, under the National Gas Access (WA) Act 2009 of Western Australia, section 9, the dispute resolution body generally is the entity known as the Western Australian Energy Disputes Arbitrator.

Dispute resolution panel means a person or panel of persons appointed under the Rules to hear and determine a rule dispute;

distribution pipeline means a pipeline that—

(a) is classified as a distribution pipeline under a licence or authorisation granted in relation to the pipeline under jurisdictional gas legislation; or

(b) if the licence or authorisation mentioned in paragraph (a) does not include a classification of the pipeline—is classified by the AER as a distribution pipeline,

and includes a pipeline that is reclassified by the AER as a distribution pipeline;

Note—

See Chapter 3 Part 6 in relation to the classification and reclassification of pipelines. See also sections 18 and 19.

distributor means, except where elsewhere defined in this Law, a service provider who owns, operates or controls a scheme pipeline that is a distribution pipeline;

draft Rule determination means a determination of the AEMC under section 308;

east coast gas system means the following, located wholly or partly within an east coast jurisdiction:

(a) a covered gas industry facility;

(b) a regulated gas market;

(d) a system, market or other thing specified by the Rules;

east coast gas system direction , for Part 6 Division 1A—see section 91AF(1);

East Coast Gas System Procedures , for Part 6 Division 1A—see section 91AD(1)(h);

east coast gas system reliability and supply adequacy functions of AEMO are set out in section 91AD;

east coast jurisdiction means a participating jurisdiction other than Western Australia;

ECA amendments means the amendments to this Law made by the Statutes Amendment (Energy Consumers Australia) Act 2014 of South Australia;

end user means a person who acquires covered gas for consumption purposes, and includes a retail customer;

Energy Consumers Australia or ECA means the company incorporated, or to be incorporated, by the name Energy Consumers Australia Limited;

energy ombudsman has the same meaning as in the National Energy Retail Law;

Energy Security Board means the Energy Security Board referred to in section 2(1) of the NEL;

ERA means the Economic Regulation Authority established by section 4 of the Economic Regulation Authority Act 2003 of Western Australia;

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;

exempted participant means a person exempted from registration as a Registered participant;

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 a scheme pipeline is to be treated as forming part of the scheme 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 a scheme pipeline will be subject to the applicable access arrangement applying to the pipeline services to which that arrangement applies; and

(iii) whether an extension to, or expansion of the capacity of, a scheme pipeline will affect a reference tariff and, if so, the effect on the reference tariff; and

(b) any other requirements specified by the Rules as extension and expansion requirements;

Note—

Item	Provision
1	Section 56
2	Section 57
2A	Section 91BE(1)
2B	Section 91BF(1)
2C	Section 91BJ(1)
2D	Section 91BN(5)
2DA	Section 91BRD(1)
2DB	Section 91BRJ(5)
2DC	Section 91FC(3) and (4)
2E	Section 91FEA
2F	Section 91LB(1)
2G	Section 91MB(6)
3	Section 131
4	Section 133
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
18	Section 223
19	Section 225

Item	Provision
A1	Section 91BP
A2	Section 91BRF
A3	Section 91BRG
1	Section 133
3	Section 135
4	Section 136
5	Section 147
6	Section 148

See also Chapter 10 Part 2 Division 2.

72—AEMC must have regard to national gas objective

In performing or exercising any function or power under this Law, the Regulations or the Rules, the AEMC must have regard to the national gas objective.

72A—Targets statement for greenhouse gas emissions targets

(1) The AEMC must prepare and maintain a document (the targets statement ) stating the targets set by a participating jurisdiction mentioned in section 23(b).

(2) If the MCE or a Minister of a participating jurisdiction gives a written direction to the AEMC to include a target in, or remove a target from, the targets statement, the AEMC must comply with the direction.

(3) A Minister may give a written direction under subsection (2) only in relation to a target set by the Minister's participating jurisdiction.

(4) The AEMC must publish on its website—

(a) the targets statement; and

(b) each direction given under subsection (2).

(5) In having regard to the national gas objective under this Law, the Regulations or the Rules with respect to the matters mentioned in section 23(b), a person or body must consider, as a minimum, the targets stated in the targets statement.

73—AEMC must have regard to MCE statements of policy principles in relation to Rule making and reviews

The AEMC must have regard to any relevant MCE statement of policy principles—

(a) in making a Rule; or

(b) in conducting a review under section 83.

Division 2—Rule making functions and powers of the AEMC

74—Subject matter for National Gas Rules

(1) Subject to this Division, the AEMC, in accordance with this Law and the Regulations, may make Rules, to be known, collectively, as the "National Gas Rules", for or with respect to—

(a) regulating—

(i) access to pipeline services; and

(ii) the provision of pipeline services; and

(iii) the collection, use, disclosure, copying, recording, management and publication of information in relation to the covered gas industry; and

(iv) the operation of a regulated retail gas market; and

(v) AEMO's declared system functions and the operation of a declared wholesale gas market; and

(va) AEMO's STTM functions and the operation of a short term trading market of an adoptive jurisdiction; and

(vi) the activities of Registered participants, users, end users and other persons in a regulated gas market; and

(vii) the safety, security and reliability of pipelines; and

(viia) the reliability or adequacy of the supply of covered gas within the east coast gas system; and

(viii) the connection of premises of retail customers; and

(aaa) AEMO's gas trading exchange functions and the operation of a gas trading exchange; and

(aab) the capacity auction functions of AEMO, the operation of a capacity auction and the activities of transportation service providers and transportation facility users in connection with a capacity auction; and

(aac) transaction support arrangements; and

(aad) access to and the provision of operational transportation services; and

(aa) facilitating and supporting the provision of services to retail customers; and

(ab) any matter or thing related to, or necessary or expedient for, the purposes of a trial Rule, trial project or trial waiver; and

(aba) the AER gas price reporting functions; and

(ac) AEMO′s east coast gas system reliability and supply adequacy functions; and

(b) any matter or thing contemplated by this Law, or necessary or expedient for the purposes of this Law.

Note—

The procedure for the making of a Rule by the AEMC is set out in Chapter 9 Part 3.

(2) Without limiting subsection (1), the AEMC, in accordance with this Law and the Regulations, may make Rules for or with respect to any matter or thing specified in Schedule 1 to this Law.

(3) Rules made by the AEMC in accordance with this Law and the Regulations may—

(a) be of general or limited application;

(b) vary according to the persons, times, places or circumstances to which they are expressed to apply;

(i) the AER, the AEMC or AEMO; or

(ii) any panel or committee established by the AEMC; or

(iii) any other body established, or person appointed, in accordance with the Rules;

(d) confer rights or impose obligations on any person or a class of person (other than AEMO, the AER or the AEMC);

(e) confer a function on the AER, the AEMC or AEMO to make or issue guidelines, tests, standards, procedures or any other document (however described) in accordance with the Rules, including guidelines, tests, standards, procedures or any other document (however described) that leave any matter or thing to be determined by the AER, the AEMC or AEMO;

(f) empower or require any person (other than a person referred to in paragraph (e)) or body to make or issue guidelines, tests, standards, procedures or any other document (however described) in accordance with the Rules;

(fa) provide for Procedures governing the operation of regulated gas markets;

(fb) provide for Procedures governing the operation and administration of capacity auctions and transaction support arrangements;

(g) apply, adopt or incorporate wholly or partially, or as amended by the Rules, the provisions of any standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body whether—

(i) as formulated, issued, prescribed or published at the time the Rules are made or at any time before the Rules are made; or

(ii) as amended from time to time;

(h) confer a power of direction on the AER, the AEMC or AEMO to require a person conferred a right, or on whom an obligation is imposed, under the Rules to comply with—

(i) a guideline, test, standard, procedure or other document (however described) referred to in paragraph (e) or (f); or

(ii) a standard, rule, specification, method or document (however described) referred to in paragraph (g);

(i) if this section authorises or requires Rules that regulate any matter or thing, prohibit that matter or thing or any aspect of that matter of thing;

(j) provide for the review of, or a right of appeal against, a decision or determination made under the Rules and for that purpose, confer jurisdiction on the Court;

(k) require a form prescribed by or under the Rules, or information or documents included in, attached to or given with the form, to be verified by statutory declaration;

(l) in a specified case or class of case, exempt—

(i) AEMO; or

(ii) a Registered participant or class of Registered participant; or

(iii) any other person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules or a class of any such person or body,

from complying with a provision, or part of a provision, of the Rules;

(m) provide for the modification or variation of a provision of the Rules (with or without substitution of a provision of the Rules or part of a provision of the Rules) as it applies to—

(i) AEMO; or

(ii) a Registered participant or class of Registered participant; or

(iii) any other person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules or a class of any such person or body;

(n) confer an immunity on, or limit the liability of, any person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed under the Rules;

(na) require a person or body performing or exercising a function or power, or on whom a right is conferred or an obligation is imposed under the Rules, to indemnify another such person or body;

(o) contain provisions of a savings or transitional nature consequent on 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 Minister of a participating jurisdiction.

Note—

The term function is defined in clause 10 of Schedule 2 to this Law to include "duty".

76—AEMC must not make Rules that create criminal offences or impose civil penalties for breaches

The AEMC must not make a Rule that—

(a) creates an offence for a breach of a provision of the Rules; or

(b) provides for a criminal penalty or civil penalty for a breach of a provision of the Rules.

77—Documents etc applied, adopted and incorporated by Rules to be publicly available

(1) The AEMC must make publicly available—

(a) every standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body that is applied, adopted or incorporated by a Rule; and

(b) if a standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body is applied, adopted or incorporated by a Rule as amended from time to time—any amendment to that standard, rule, specification, method or document.

(2) For the purposes of subsection (1), the AEMC makes a standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body applied, adopted or incorporated by any Rule publicly available if the AEMC—

(a) publishes the standard, rule, specification, method or document on the AEMC's website; or

(b) specifies a place from which the standard, rule, specification, method or document may be obtained or purchased (as the case requires).

Division 3—Committees, panels and working groups of the AEMC

78—Establishment of committees, panels and working groups

The AEMC may establish committees, panels and working groups to—

(a) provide advice on specified aspects of the AEMC's functions; or

(b) undertake any other activity in relation to the AEMC's functions as is specified by the AEMC.

Division 4—MCE directed reviews

79—MCE directions

(1) The MCE may give a written direction to the AEMC that the AEMC conduct a review into—

(a) any matter relating to a market for gas (including services provided in a market for gas); or

(b) any matter relating to access to pipelines or to pipeline services provided by means of pipelines; or

(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.

(2) A direction given to the AEMC under this section is binding on the AEMC and must be complied with despite anything to the contrary in the Rules.

(3) A direction given under this section must be published in the South Australian Government Gazette.

(4) The AEMC must cause a direction given under this section to be published on its website.

80—Terms of reference

(1) The terms of reference of a MCE directed review will be as specified in the direction given by the MCE.

Example—

The terms of reference may require a MCE directed review to be conducted—

(a) about a specific matter within a specified time; or

(b) whenever a specified event occurs; or

(2) Without limiting subsection (1), the MCE may in its direction to the AEMC do 1 or more of the following:

(a) require the AEMC to give a report on a MCE directed review to the MCE within a specified period;

(b) require the AEMC to make the report on a MCE directed review publicly available or available to specified persons or bodies;

(c) require the AEMC to make a draft report publicly available or available to specified persons or bodies during a MCE directed review;

(d) require the AEMC to consider specified matters in the conduct of a MCE directed review;

(e) require the AEMC to have specified objectives in the conduct of a MCE directed review which need not be limited by the national gas objective;

(f) require the AEMC to assess a particular matter in relation to services provided in a market for gas against specified criteria or a specified methodology;

(g) require the AEMC—

(i) to assess a particular matter in relation to services provided in a market for gas; and

(ii) to develop appropriate and relevant criteria, or an appropriate and relevant methodology, for the purpose of the required assessment;

(h) give the AEMC other specific directions in respect of the conduct of a MCE directed review.

81—Notice of MCE directed review

(1) The AEMC must publish notice of a MCE directed review on its website.

(2) The AEMC must publish a further such notice if a term of reference or a requirement or direction relating to the MCE directed review is varied.

82—Conduct of MCE directed review

Subject to any requirement or direction of the MCE, a MCE directed review—

(a) may be conducted in such manner as the AEMC considers appropriate; and

(b) may (but need not) involve public hearings.

Division 5—Other reviews

83—Rule reviews by the AEMC

(1) The AEMC may conduct a review into—

(a) the operation and effectiveness of the Rules; or

(b) any matter relating to the Rules.

(2) A review—

(a) may be conducted in such manner as the AEMC considers appropriate; and

(b) may (but need not) involve public hearings.

(3) During the course of a review, the AEMC may—

(a) consult with any person or body that it considers appropriate;

(b) establish working groups to assist it in relation to any aspect, or any matter or thing that is the subject of, the review;

(c) commission reports by other persons on its behalf on any aspect, or matter or thing that is the subject of, the review;

(d) publish discussion papers or draft reports.

(4) At the completion of a review, the AEMC must—

(a) give a copy of the report to the MCE; and

(b) publish a report or a version of a report from which confidential information has been omitted in accordance with section 331.

Division 6—Miscellaneous matters

83B—Standard market timetable

(1) Without limiting any other provision, the Rules may provide for a standard market timetable.

(2) The standard market timetable may do the following:

(a) specify the start time of a standard gas day;

(b) provide for the times for nominations and renominations for the use of transportation services and deliveries or receipts of covered gas;

(c) provide for the circumstances in which the standard market timetable must be used, which may include provision in relation to any of the following:

(i) transportation services;

(ii) the supply, production, blending or storage of covered gas;

(iii) the measurement and allocation of deliveries or receipts of covered gas;

(iv) a regulated gas market, a gas trading exchange and a capacity auction.

(3) Without limiting any other provision, the Rules may require a person of the following kind to use the standard market timetable in accordance with the Rules:

(a) a transportation service provider;

(b) a transportation facility user;

(d) a producer;

(da) a blend processing service provider;

(e) a storage provider;

(f) any other person of a kind prescribed by the Regulations for the purposes of this subsection.

83C—Use of the standard market timetable

A person required by the Rules to use the standard market timetable must do so in accordance with the Rules.

83D—False or misleading statements

A person of the following kind must not, in connection with the supply or possible supply of goods and services, make a false or misleading representation concerning the effect of a requirement for the person to use the standard market timetable on the price for the supply of the goods or services:

(a) a transportation service provider;

(b) a transportation facility user;

(d) a producer;

(da) a blend processing service provider;

(e) a storage provider;

(f) any other person of a kind prescribed by the Regulations for the purposes of section 83B(3)(f).

Maximum penalty:

(a) in the case of a natural person—$3 400;

(b) in the case of a body corporate—$17 000.

Note—

84—AEMC must publish and make available up to date versions of Rules

The AEMC must, at all times—

(a) maintain, on its website, a copy of the National Gas Rules, as in force from time to time; and

(b) make copies of the National Gas Rules, as in force from time to time, available to the public for inspection at its offices during business hours.

85—Fees

(1) The AEMC may charge a fee specified, or a fee calculated in accordance with a formula or methodology specified, in the Regulations for services provided by it in performing or exercising any of its functions or powers under this Law, the Regulations or the Rules.

(2) The fee must not be such as to amount to taxation.

86—Immunity from personal liability of AEMC officials

(1) No personal liability attaches to an AEMC official for an act or omission in good faith in the performance or exercise, or purported performance or exercise of a function or power under this Law, the Regulations or the Rules.

(2) A liability that would, but for subsection (1), lie against an AEMC official lies instead against the AEMC.

(3) In this section—

AEMC official means—

(a) a member of the AEMC;

(b) the chief executive of the AEMC;

Part 3—Functions and powers of Ministers of participating jurisdictions

87—Functions and powers of Minister of this participating jurisdiction under this Law

(1) The Minister of this participating jurisdiction has the functions and powers conferred on him or her under this Law, the Regulations or the Rules.

(2) The Minister of this participating jurisdiction has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.

(3) In this section—

Minister of this participating jurisdiction means the Minister that administers the Act of this jurisdiction that applies this Law or a part of this Law as a law of this jurisdiction—see section 22(b).

Part 5—Functions and powers of Tribunal

91—Functions and powers of Tribunal under this Law

(1) The Tribunal has the functions and powers conferred on it under Chapter 8 Part 5 and any Regulations made for the purposes of that Division.

(2) The Tribunal has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

Part 6—Role of AEMO under National Gas Law

Division 1—General

91A—AEMO's statutory functions

(1) AEMO has the following functions:

(a) to operate and administer gas markets in accordance with this Law, the Rules and the Procedures;

(b) to promote the development, and improve the effectiveness of the operation and administration of, gas markets;

(ba) conduct trials relating to the operation and administration of markets, or parts of markets, capacity auctions and transaction support arrangements that are or will be governed by this Law, the Rules and the Procedures;

(d) to exempt certain persons from being registered as Registered participants;

(e) to facilitate retail customer transfer, metering and retail competition (including balancing, allocation and reconciliation of gas deliveries and withdrawals to and from subnetworks);

(ea) the east coast gas system reliability and supply adequacy functions;

(f) for an adoptive jurisdiction—the declared system functions or STTM functions (as the case requires);

(g) to make, amend or revoke Procedures;

(ga) the gas trading exchange functions;

(gb) the capacity auction functions;

(gc) to establish, operate and administer transaction support arrangements;

(h) to operate and maintain the Gas Bulletin Board;

(i) to prepare, periodically review, revise, and publish the gas statement of opportunities;

(j) to investigate breaches or possible breaches of the Procedures;

(k) any functions conferred by jurisdictional gas legislation or an application Act;

(l) any other functions conferred under this Law, the Rules or the Procedures.

Notes—

1 AEMO has additional functions under its Constitution.

2 It should be noted that AEMO's statutory functions include its functions under the National Electricity Law and the National Electricity Rules: see definition of statutory functions in section 2.

3 AEMO also has responsibilities, under Part 4 of the Australian Energy Market Commission Establishment Act 2004 of South Australia, related to administrative costs associated with the work of the Consumer Advocacy Panel.

4 AEMO has additional functions and powers under the National Energy Retail Law and the National Energy Retail Rules.

(2) AEMO must, in carrying out functions referred to in this section have regard to the national gas objective.

91AB—AEMO's power to carry out statutory functions

AEMO has the power to do all things necessary or convenient for or in connection with its statutory functions.

91AC—Delegation

(1) Subject to subsection (2) and the Rules, AEMO may delegate any of its functions or powers under this Law, the Rules or the Procedures to—

(a) a director, officer or employee of AEMO; or

(b) a member of a committee established by AEMO.

(2) However, a function or power classified by the Regulations as non-delegable cannot be delegated.

(3) A delegate may, subject to AEMO's directions, subdelegate a delegated function or power to a director, officer or employee of AEMO.

(4) A delegate (or subdelegate) must comply with any direction given by AEMO that is relevant to the exercise of the delegated functions or powers.

Division 1A—AEMO's east coast gas system reliability and supply adequacy functions

91AD—AEMO's east coast gas system reliability and supply adequacy functions

(1) AEMO's east coast gas system reliability and supply adequacy functions are as follows:

(a) to monitor trends in the supply of, and demand for, covered gas in the east coast gas system and factors affecting, or that may potentially affect, the reliability or adequacy of the supply of gas within that system;

(b) to identify and communicate actual or potential risks or threats to the reliability or adequacy of the supply of covered gas within the east coast gas system;

(c) to report to and advise the MCE, including a member of the MCE, on matters relating to the reliability or adequacy of the supply of covered gas within the east coast gas system;

(d) to publish information relating to the reliability or adequacy of the supply of covered gas within the east coast gas system;

(e) to give directions to relevant entities to the extent AEMO considers necessary to maintain and improve the reliability or adequacy of the supply of covered gas within the east coast gas system;

(f) to trade in covered gas or to purchase pipeline services or services provided by a compression service provider, blend processing service provider or a storage provider to the extent AEMO considers necessary to maintain and improve the reliability or adequacy of the supply of covered gas within the east coast gas system;

(g) other functions conferred on AEMO by the Rules for the purposes of this section;

(h) to make, amend or revoke Procedures ( East Coast Gas System Procedures ) relating to a function specified in paragraphs (a) to (g).

(2) AEMO must not exercise the function specified in subsection (1)(f) unless AEMO is of the opinion that the trade or purchase is necessary to prevent, reduce or mitigate an actual or potential threat identified by AEMO in the exercise of the function specified in subsection (1)(b).

(3) AEMO must, within 3 months after the commencement of this section—

(a) prepare, in accordance with the Rules, guidelines relating to the exercise or performance of the functions specified in subsection (1)(e) and (f); and

(b) publish the guidelines on its website.

(4) The Regulations may specify the following:

(a) the relationship between the operation of this Division, or a provision of this Division, and a law of a participating jurisdiction, in the event of an inconsistency;

(b) the extent to which a relevant entity is or is not required to comply with an east coast gas system direction in circumstances where the direction is inconsistent with a law of a participating jurisdiction;

(c) the extent to which an east coast gas system direction is not valid in circumstances where the direction is inconsistent with a law of a participating jurisdiction.

(5) The Rules may specify the following:

(a) the matters that AEMO may or must consider in determining there is or is not an actual or potential threat to the reliability or adequacy of the supply of covered gas within the east coast gas system;

(b) the kinds of directions that AEMO may or may not give under this section;

(c) the matters that AEMO may or must consider in determining whether to exercise a function specified in subsection (1)(e) or (f).

91AE—AEMO to account to relevant Minister for performance of east coast gas system reliability and supply adequacy functions

(1) AEMO must, at the written request of a Minister of a participating jurisdiction that is an east coast jurisdiction, provide information about the performance of its east coast gas system reliability and supply adequacy functions in relation to that jurisdiction.

(2) AEMO must, at the written request of the MCE, provide information about the performance of its east coast gas system reliability and supply adequacy functions in accordance with the request.

(3) Protected information provided in response to a request under this section must be identified as such by AEMO at the time of providing the information.

(4) No fee is to be charged for the provision of information under this section.

91AF—AEMO's power of direction—east coast gas system reliability and supply adequacy

(1) AEMO may give a written direction (an east coast gas system direction ) to a relevant entity for 1 or more of the following purposes:

(a) to maintain and improve the reliability of the supply of covered gas within the east coast gas system;

(b) to maintain and improve the adequacy of the supply of covered gas within the east coast gas system.

(2) A direction must not be given under subsection (1) unless AEMO is of the opinion that the giving of the direction is necessary to prevent, reduce or mitigate an actual or potential threat identified by AEMO in the exercise of the function specified in section 91AD(1)(b).

(3) Without limiting subsection (1), an east coast gas system direction may relate to 1 or more of the following:

(a) the operation, maintenance or use of any equipment or installation;

(b) the control of the flow of covered gas;

(c) any other matter that may affect the reliability or adequacy of the supply of covered gas within the east coast gas system.

(4) An east coast gas system direction may apply, adopt or incorporate (with or without modification) a relevant code of practice or standard (made in or outside Australia) as in force or existing when the direction is made or as in force or existing from time to time.

(5) A prohibition imposed by an east coast gas system direction may be either unconditional or subject to conditions stated in the direction.

(6) A person to whom an east coast gas system direction applies must comply with the direction to the extent to which compliance is consistent with a law of a participating jurisdiction applying to the person.

(7) A person incurs no civil monetary liability for damage, loss or injury resulting from an act or omission done or made in good faith and in compliance or purported compliance with an east coast gas system direction.

(8) In this section—

relevant entity means the following, excluding a small customer:

(a) a Registered participant;

(b) an exempted participant;

(d) a person who buys or sells covered gas in the east coast gas system;

(e) a gas powered generator;

(f) a storage provider whose storage facility is connected to the east coast gas system;

(g) a person who provides pipeline, transport, compression or other related services in, into or out of the east coast gas system;

(h) a person specified as a relevant entity by the Rules;

small customer means—

(a) a small customer within the meaning of section 5(2) of the National Energy Retail Law; and

(b) a relevant customer within the meaning of the Order made under section 43 of the Gas Industry Act 2001 of Victoria and published in the Victoria Government Gazette on 25 November 2008.

91AG—East Coast Gas System Procedures

(1) The East Coast Gas System Procedures may deal with the following matters:

(a) the matters specified by the Rules;

(b) any other matter relevant to AEMO′s east coast gas system reliability and supply adequacy functions on which this Law or the Rules contemplate the making of Procedures.

(2) The East Coast Gas System Procedures—

(a) may vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(b) may confer functions or powers on, or leave any matter or thing to be decided by, AEMO; and

(d) may require a relevant entity to give an indemnity against injury, damage or loss arising from the entity′s failure to comply with requirements imposed by the Procedures; and

(e) may confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and

(f) may confer power on AEMO to require a person on whom a right is conferred, or an obligation imposed, under the Procedures—

(i) to comply with a guideline, standard or other document of an administrative nature; or

(ii) to conduct, or submit to, a test designed by AEMO; and

(g) may exempt, or confer a power of exemption, from the application of the Procedures or specified provisions of the Procedures; and

(h) may contain provisions of a savings or transitional nature.

(3) AEMO must not, without the consent of the MCE, make East Coast Gas System Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.

(4) The East Coast Gas System Procedures must not—

(a) create an offence; or

(b) provide for a criminal or civil penalty.

91AH—Compliance with East Coast Gas System Procedures

(1) AEMO and each person to whom the East Coast Gas System Procedures are applicable must comply with those Procedures.

(2) If AEMO has reasonable grounds to suspect a breach of the East Coast Gas System Procedures, it must, after making such inquiries and investigation as it considers appropriate, make a decision as to whether the breach is a material breach.

(3) If AEMO decides the breach is material, AEMO—

(a) must publish the decision and the reasons for it on its website; and

(b) may direct the person suspected of the breach to rectify it or to take specified measures to ensure future compliance (or both); and

(4) A direction by AEMO under subsection (3)(b) must—

(a) specify the breach; and

(b) specify the date by which the direction must be complied with; and

(5) A person to whom a direction is given under subsection (3)(b) must comply with the direction.

(6) AEMO must give a copy of its decision under subsection (2), its reasons for the decision and (if relevant) any direction under subsection (3)(b) to the AER.

(7) If AEMO decides the breach is not material, AEMO must—

(a) publish the decision and the reasons for the decision on its website; and

(b) give a copy of the decision and the reason for the decision to the AER.

Note—

AEMO may provide the AER with relevant information, including protected information, related to a suspected breach of the Procedures. For disclosure of protected information, see section 91GC(2)(b).

Division 2—AEMO's declared system functions

Subdivision 1—Preliminary

91B—Application of this Division

(1) This Division applies to, and in relation to, a participating jurisdiction if (and only if) the application Act of that jurisdiction, or an instrument made under that Act, declares that it does so apply.

(2) In this Division—

(a) a reference to a storage provider extends to a declared LNG storage provider; and

(b) a reference to natural gas extends to liquefied natural gas stored by the declared LNG storage provider.

(3) A rule or other form of subordinate legislation made for the purposes of this Division applies to and in relation to a participating jurisdiction if (and only if) this Division applies to and in relation to that jurisdiction.

91BA—AEMO's declared system functions

(1) AEMO's declared system functions are as follows:

(a) to determine security standards for the declared transmission system;

(b) to control the operation and security of the declared transmission system;

(c) to monitor and review the capacity of the declared transmission system and the trends in demand for the injection of gas into, and the withdrawal of gas from, that system;

(d) to provide information and other services to facilitate decisions for economically efficient investment in the covered gas industry in the adoptive jurisdiction;

(e) to coordinate the interaction of producers, blend processing service providers, storage providers and service providers for ensuring a safe, secure, reliable and efficient declared transmission system;

(f) to operate and administer the declared wholesale gas market;

(g) to make, amend or revoke Procedures governing the operation and administration of the declared wholesale gas market.

(2) AEMO may trade in covered gas or purchase pipeline services or services provided by a compression service provider, blend processing service provider or a storage provider—

(a) to the extent necessary or desirable for the safety, security or reliability of a declared transmission system; or

(b) in an emergency.

(3) AEMO may, subject to the Rules, suspend a declared wholesale gas market.

91BB—AEMO to account to relevant Minister for performance of declared system functions

(1) AEMO must, at the written request of the Minister of an adoptive jurisdiction, provide information about the performance of its declared system functions with respect to that jurisdiction.

(2) Protected information provided in response to a request under subsection (1) must be identified as such by AEMO at the time of providing the information.

(3) No fee is to be charged for the provision of information under this section.

Subdivision 2—Power of direction

91BC—AEMO's power of direction

(1) AEMO may give written directions to a Registered participant (or an exempted participant) with respect to the declared transmission system or a declared distribution system for 1 or more of the following purposes:

(a) to maintain and improve the reliability of the supply of covered gas;

(b) to maintain and improve the security of the declared transmission system or a declared distribution system;

(2) A direction under this section—

(a) may relate to—

(i) the operation or use of any equipment or installation; or

(ii) the control of the flow of covered gas; or

(iii) any other matter that may affect the safety, security or reliability of the declared transmission system or a declared distribution system; but

(b) must be consistent with other legislation (including subordinate legislation) relevant to safety in the adoptive jurisdiction but may be contrary to a provision of the Rules or the Procedures.

(3) A direction under this section may apply, adopt or incorporate (with or without modification) a relevant code of practice or standard (made in or outside Australia) as in force or existing when the direction is made or as in force or existing from time to time.

(4) A prohibition imposed by a direction under this section may be either unconditional or subject to conditions stated in the direction.

(5) A person to whom a direction under this section applies must comply with the direction.

Maximum penalty:

(a) in the case of a natural person—$34 000;

(b) in the case of a body corporate—$170 000.

Note—

(6) A person who fails to comply with a direction under this section within the period allowed in the direction commits a further offence for every day the non-compliance continues after the end of that period and is liable to a further penalty of $17 000 for each such offence.

Note—

91BD—Protection from liability

A person incurs no civil monetary liability for damage, loss or injury resulting from an act or omission done or made in good faith and in compliance or purported compliance with a direction under this Subdivision.

Subdivision 3—AEMO's relationship with transmission system service providers and facility owners

91BE—Service envelope agreement between AEMO and transmission pipeline service provider

(1) The service provider for the declared transmission system must have an agreement (a service envelope agreement ) with AEMO for the control, operation, safety, security and reliability of the declared transmission system.

(2) Under the service envelope agreement, the service provider makes the declared transmission system available to AEMO (and, in doing so, provides a pipeline service).

(3) The service envelope agreement must—

(a) state the capacity of the declared transmission system to be available to AEMO (or how that capacity is to be calculated) at points of injection or withdrawal under the various operating conditions that are likely to prevail from time to time; and

(b) deal with any other matters required by the Rules.

(4) The AER may, on application by AEMO or a service provider for the declared transmission system, make a determination to resolve a dispute arising from an attempt to negotiate a service envelope agreement or an amendment to a service envelope agreement.

(5) The AER may only make a determination under this section if—

(a) the AER is satisfied that the applicant has made a reasonable, but unsuccessful, attempt to negotiate the agreement or amendment; and

(b) the AER has given AEMO and all service providers for the declared transmission system that are to be affected by the determination an opportunity to make representations about the terms of the proposed determination.

(6) A determination under this section may determine the terms and conditions of the service envelope agreement or the amendment.

(7) If the AER determines the terms and conditions of a service envelope agreement or an amendment to a service envelope agreement, a service envelope agreement is taken to arise, or the service envelope agreement is taken to be amended, in accordance with the AER's determination.

(8) A determination under this section takes effect on a date specified in the determination.

(9) A determination under this section must be published on AEMO's website.

91BF—Interconnection with facilities

(1) A person must not connect a facility to the declared transmission system unless the person—

(a) has AEMO's permission to do so; or

(b) is authorised to do so by an access determination.

(2) A facility includes—

(a) a pipeline;

(aa) a blend processing facility;

(b) a storage facility;

(d) any other plant or equipment that could have a material impact on the operation of the declared transmission system.

91BG—Operating agreement between AEMO and facility owner

(1) AEMO may require, as a condition of permitting the connection of a facility to the declared transmission system, that the facility owner enter into an agreement (an operating agreement ) with AEMO relating to the operation of that facility.

(2) An operating agreement may deal (amongst other things) with the following:

(a) the balancing, monitoring and regulation of gas flows between the declared transmission system and the facility;

(b) the scheduling of gas flows;

(d) the provision of operational information;

(e) operating pressures;

(f) the safety, security and reliability of the declared transmission system and the facility;

(g) emergency arrangements.

(3) The AER may make a determination under this section (an operating agreement determination )—

(a) on application by AEMO or a facility owner to resolve a dispute arising from an attempt to negotiate an operating agreement or an amendment to an operating agreement; or

(b) in the course of proceedings to resolve an access dispute.

(4) The AER may only make an operating agreement determination on an application under subsection (3)(a) if—

(a) the AER is satisfied that the applicant has made a reasonable, but unsuccessful, attempt to negotiate the agreement or amendment; and

(5) An operating agreement determination may determine the terms and conditions of the operating agreement or the amendment.

(6) If the AER determines the terms and conditions of an operating agreement or an amendment to an operating agreement, an operating agreement is taken to arise, or the operating agreement is taken to be amended, in accordance with the AER's determination.

(7) An operating agreement determination takes effect on a date specified in the determination.

(8) An operating agreement determination must be published on AEMO's website.

91BH—General principles governing determinations

(1) A determination under this Division must be compatible with the proper performance of AEMO's declared system functions.

(2) In determining a dispute about a service envelope agreement, an operating agreement, or an amendment to a service envelope agreement or operating agreement, the AER must have regard to the allocation of powers and functions between AEMO and the relevant declared transmission system operator and to the Rules so far as they are relevant to—

(a) the allocation of risk under such an agreement; or

(b) the provision of services by means of, or in connection with, the declared transmission system; or

(3) A determination cannot alter the allocation of risk under an existing service envelope agreement or an existing operating agreement unless AEMO agrees.

(4) The provisions applicable to the determination of an access dispute apply to a determination by the AER under this Division with the following changes:

(a) sections 163 to 166 and section 169(1)(b)(i), (iv) and (2) do not apply; and

(b) any further changes necessary to adapt those provisions to the determination of a dispute under this Division.

Subdivision 4—Declared wholesale gas market

91BI—Market participation

A person participates in a declared wholesale gas market in a registrable capacity if the person is—

(a) a service provider for the declared transmission system or for a declared distribution system; or

(b) a producer or blend processing service provider who injects covered gas into a declared transmission system or a declared distribution system; or

(c) a storage provider whose storage facility is connected to the declared transmission system or a declared distribution system; or

(d) a person who buys or sells covered gas in the declared wholesale gas market; or

(e) a person classified by the Rules as a participant in the declared wholesale gas market.

91BJ—Registration required for market participation

(1) A person must not participate in a declared wholesale gas market in a registrable capacity unless registered (or exempted from registration) in accordance with the Rules.

(2) A person may also be exempted from registration by or under jurisdictional gas legislation.

(3) A person who participates in a declared wholesale gas market in 2 or more registrable capacities must be registered (or exempted from registration) in both or all those capacities.

(4) For performing statutory functions, AEMO is not required to be registered.

91BK—Certificates of registration etc

(1) A certificate signed by an authorised officer certifying that a person named in the certificate is registered, or exempted from registration, is evidence of the registration or exemption.

(2) For this section, an authorised officer is AEMO's CEO or a person authorised by the CEO to issue certificates under this section.

Subdivision 5—Wholesale Market Procedures

91BL—Wholesale Market Procedures

AEMO may, in accordance with the Rules, make Wholesale Market Procedures.

91BM—Nature of Wholesale Market Procedures

(1) Wholesale Market Procedures are a form of statutory instrument directed at the regulation of a declared wholesale gas market.

(2) The Wholesale Market Procedures may deal with the following matters:

(a) the matters specified by the Rules;

(b) any other matter relevant to a declared wholesale gas market on which this Law or the Rules contemplate the making of Procedures.

(3) The Wholesale Market Procedures—

(a) may vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(b) may confer functions or powers on, or leave any matter or thing to be decided by, AEMO; and

(d) may require a Registered participant or an exempted participant to give an indemnity against injury, damage or loss arising from the participant's failure to comply with requirements imposed by the Procedures; and

(e) may confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and

(f) may confer power on AEMO to require a person on whom a right is conferred, or an obligation imposed, under the Procedures—

(i) to comply with a guideline, standard or other document of an administrative nature; or

(ii) to conduct, or submit to, a test designed by AEMO; and

(g) may exempt, or confer a power of exemption, from the application of the Procedures or specified provisions of the Procedures; and

(h) may contain provisions of a savings or transitional nature.

(4) AEMO must not, without the consent of the MCE, make Wholesale Market Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.

(5) The Wholesale Market Procedures cannot—

(a) create an offence; or

(b) provide for a criminal or civil penalty.

91BN—Compliance with Wholesale Market Procedures

(1) AEMO and each person to whom the Wholesale Market Procedures are applicable must comply with those Procedures.

(2) If AEMO has reasonable grounds to suspect a breach of the Wholesale Market Procedures, it must, after making such inquiries and investigation as it considers appropriate, make a decision as to whether the breach is a material breach.

(3) If AEMO decides the breach is material, AEMO—

(a) must publish the decision and the reasons for it on its website; and

(b) may direct the person suspected of the breach to rectify it or to take specified measures to ensure future compliance (or both); and

(4) A direction by AEMO under subsection (3)(b) must—

(a) specify the breach; and

(b) specify the date by which the direction is to be complied with; and

(5) A person to whom a direction is given under subsection (3)(b) must comply with the direction.

(6) AEMO must give a copy of its decision under subsection (2), its reasons for the decision and (if relevant) any direction under subsection (3)(b) to the AER.

(7) If AEMO decides the breach is not material, AEMO must—

(a) publish the decision and the reasons for it on its website; and

(b) give a copy of the decision and the reasons for it to the AER.

Note—

AEMO may provide the AER with relevant information (including protected information) related to a suspected breach of the Procedures. (For disclosure of protected information, see section 91GC(2)(b).)

Subdivision 6—Ownership of gas in declared transmission system

91BO—Ownership of gas

(1) AEMO must establish rules (the ownership rules ) for determining the ownership of gas in the declared transmission system and for resolving disputes about ownership.

(2) The ownership rules are to form part of the Wholesale Market Procedures.

(3) Subject to the ownership rules, gas injected into the declared transmission system remains the property of the person that injected it or, if that person was acting as an agent, that person's principal.

(4) A dispute about the ownership of gas in the declared transmission system is to be determined in accordance with the Rules.

91BP—Title to gas

A Registered participant or an exempted participant must not inject gas into, or tender gas for injection into, the declared transmission system or a declared distribution system unless—

(a) the participant has title to the gas, or authority to dispose of title to the gas; and

(b) the gas will, at the point of injection, be free from any mortgage, charge or encumbrance.

Subdivision 7—Immunity

91BQ—Immunity

(1) A protected person incurs no civil monetary liability—

(a) for failing to accept gas for injection into, or to make gas available for withdrawal from, the declared transmission system; or

(b) for failing to make the declared transmission system available to accept the injection of gas into it, or the withdrawal of gas from it; or

(c) in the case of AEMO—for failing to accept gas for injection into, or to make gas available for withdrawal from, a declared distribution system,

if the failure arises out of an accident or cause beyond the protected person's control.

(2) A protected person may, by written agreement with another person, limit or exclude the operation of subsection (1) in relation to the parties to the agreement.

(3) In this section—

protected person means—

(a) AEMO; or

(b) a service provider for the whole or part of the declared transmission system.

91BR—Immunity in dealing with an emergency

Neither AEMO nor an officer or employee of AEMO incurs any civil monetary liability for an act or omission directed at dealing with an emergency unless the act or omission is done or made in bad faith.

Division 2A—Short term trading markets

Subdivision 1—Preliminary

91BRA—Application of this Division

(2) A rule or other form of subordinate legislation made for the purposes of this Division applies to and in relation to a participating jurisdiction if (and only if) this Division applies to and in relation to that jurisdiction.

91BRB—AEMO's STTM functions

(1) AEMO's STTM functions are as follows:

(a) to operate and administer a short term trading market;

(b) to make, amend or revoke Procedures governing the operation and administration of a short term trading market.

(2) AEMO may trade in covered gas to the extent necessary or desirable to provide market operator services.

(3) AEMO may, subject to the Rules, suspend a short term trading market.

Subdivision 2—Short term trading markets

91BRC—Market participation

A person participates in a short term trading market in a registrable capacity if the person is—

(a) a person who supplies covered gas to an STTM hub; or

(b) a person who withdraws covered gas from an STTM hub; or

91BRD—Registration required for market participation

(1) A person must not participate in a short term trading market in a registrable capacity unless registered (or exempted from registration) in accordance with the Rules.

(2) A person who participates in a short term trading market in 2 or more registrable capacities must be registered (or exempted from registration) in both or all those capacities.

(3) For performing statutory functions, AEMO is not required to be registered.

91BRE—Certificates of registration etc

(1) A certificate signed by an authorised officer certifying that a person named in the certificate is registered, or exempted from registration, is evidence of the registration or exemption.

(2) For this section, an authorised officer is AEMO's CEO or a person authorised by the CEO to issue certificates under this section.

91BRF—Title to gas

An STTM trading participant must not supply gas to an STTM hub unless—

(a) the participant has title to the gas, or authority to dispose of title to the gas; and

(b) the gas will, at the point of supply, be free from any mortgage, charge or encumbrance.

91BRG—Gas supplied to STTM hub must meet quality specifications specified in the Rules

An STTM trading participant must not supply gas to an STTM hub that does not comply with the gas quality specifications specified in the Rules for that STTM hub and gas.

Subdivision 3—STTM Procedures

91BRH—STTM Procedures

AEMO may, in accordance with the Rules, make STTM Procedures.

91BRI—Nature of STTM Procedures

(1) STTM Procedures are a form of statutory instrument directed at the regulation of a short term trading market.

(2) The STTM Procedures may deal with the following matters:

(a) the matters specified by the Rules;

(b) any other matter relevant to a short term trading market on which this Law or the Rules contemplate the making of Procedures.

(3) The STTM Procedures—

(a) may vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(b) may confer functions or powers on, or leave any matter or thing to be decided by, AEMO; and

(d) may confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and

(e) may confer power on AEMO to require a person on whom a right is conferred, or an obligation imposed, under the Procedures—

(i) to comply with a guideline, standard or other document of an administrative nature; or

(ii) to conduct, or submit to, a test designed by AEMO; and

(f) may exempt, or confer a power of exemption, from the application of the Procedures or specified provisions of the Procedures; and

(g) may contain provisions of a savings or transitional nature.

(4) AEMO must not, without the consent of the MCE, make STTM Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.

(5) The STTM Procedures cannot—

(a) create an offence; or

(b) provide for a criminal or civil penalty.

91BRJ—Compliance with STTM Procedures

(1) AEMO and each person to whom the STTM Procedures are applicable must comply with those Procedures.

(2) If AEMO has reasonable grounds to suspect a breach of the STTM Procedures, it must, after making such inquiries and investigation as it considers appropriate, make a decision as to whether the breach is a material breach.

(3) If AEMO decides the breach is material, AEMO—

(a) must publish the decision and the reasons for it on its website; and

(b) may direct the person suspected of the breach to rectify it or to take specified measures to ensure future compliance (or both); and

(4) A direction by AEMO under subsection (3)(b) must—

(a) specify the breach; and

(b) specify the date by which the direction is to be complied with; and

(5) A person to whom a direction is given under subsection (3)(b) must comply with the direction.

(6) AEMO must give a copy of its decision under subsection (2), its reasons for the decision and (if relevant) any direction under subsection (3)(b) to the AER.

(7) If AEMO decides the breach is not material, AEMO must—

(a) publish the decision and the reasons for it on its website; and

(b) give a copy of the decision and the reasons for it to the AER.

Note—

Division 2B—Gas trading exchanges

91BRK—AEMO's gas trading exchange functions

(1) AEMO's gas trading exchange functions are as follows:

(a) to establish, operate and administer 1 or more gas trading exchanges;

(b) to appoint, in accordance with the Rules, another person to operate a gas trading exchange;

(c) in relation to a gas trading exchange, to make and administer a gas trading exchange agreement for the purposes of the exchange.

(2) AEMO may trade in covered gas to the extent necessary or desirable for the efficient operation of a gas trading exchange after taking into account any provision made by or under the gas trading exchange agreement that applies in relation to the exchange.

(3) AEMO may, subject to the Rules and the relevant gas trading exchange agreement, suspend trading on a gas trading exchange.

91BRL—Gas trading exchange not to constitute a regulated gas market

A gas trading exchange is not a regulated gas market.

Division 2C—Capacity auctions for transportation services

91BRM—AEMO's capacity auction functions

(1) AEMO's capacity auction functions are as follows:

(a) to establish, operate and administer 1 or more capacity auctions;

(b) in relation to a capacity auction, to make and administer capacity auction agreements;

(2) AEMO may, subject to the Rules and Procedures, suspend a capacity auction.

91BRN—Capacity auctions not to constitute a regulated gas market

A capacity auction is not a regulated gas market.

Division 2D—Capacity Transfer and Auction Procedures

91BRO—Making of Capacity Transfer and Auction Procedures

AEMO may, in accordance with the Rules, make Capacity Transfer and Auction Procedures.

91BRP—Nature of Capacity Transfer and Auction Procedures

(1) Capacity Transfer and Auction Procedures are a form of statutory instrument directed at—

(a) the effective operation and administration of a capacity auction in accordance with the Rules; and

(b) the effective operation and administration of transaction support arrangements.

(2) The Capacity Transfer and Auction Procedures may deal with the following matters:

(a) the matters specified by the Rules;

(b) any other matter relevant to a capacity auction, a gas trading exchange or transaction support arrangements on which this Law or the Rules contemplate the making of Procedures.

(3) The Capacity Transfer and Auction Procedures—

(a) may vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(b) may confer functions or powers on, or leave any matter or thing to be decided by, AEMO; and

(c) may confer rights or impose obligations on a transportation service provider, a transportation facility user, a capacity auction participant or a gas trading exchange member; and

(d) may confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and

(e) may confer power on AEMO to require a person on whom a right is conferred, or an obligation imposed, under the Procedures—

(i) to comply with a guideline, standard or other document of an administrative nature; or

(ii) to conduct, or submit to, a test designed by AEMO under the Procedures; and

(f) may exempt, or confer a power of exemption, from the application of the Procedures or specified provisions of the Procedures; and

(g) may contain provisions of a savings or transitional nature.

(4) AEMO must not, without the consent of the MCE, make Capacity Transfer and Auction Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.

(5) The Capacity Transfer and Auction Procedures cannot—

(a) create an offence; or

(b) provide for a criminal or civil penalty.

91BRQ—Compliance with Capacity Transfer and Auction Procedures

(1) AEMO and each person to whom the Capacity Transfer and Auction Procedures are applicable must comply with those Procedures.

(2) If AEMO has reasonable grounds to suspect a breach of the Capacity Transfer and Auction Procedures, it must, after making such inquiries and investigation as it considers appropriate, make a decision as to whether the breach is a material breach.

(3) If AEMO decides the breach is material, AEMO—

(a) must publish the decision and the reasons for it on its website; and

(b) may direct the person suspected of the breach to rectify it or to take specified measures to ensure future compliance (or both); and

(4) A direction by AEMO under subsection (3)(b) must—

(a) specify the breach; and

(b) specify the date by which the direction is to be complied with; and

(5) A person to whom a direction is given under subsection (3)(b) must comply with the direction.

(6) AEMO must give a copy of its decision under subsection (2), its reasons for the decision and (if relevant) any direction under subsection (3)(b) to the AER.

(7) If AEMO decides the breach is not material, AEMO must give a copy of the decision and the reasons for it to the AER.

Note—

Division 2E—Registration in relation to transportation facility

91BRR—Registration obligation

(1) A transportation service provider for a transportation facility must, in accordance with the Rules, register—

(a) that transportation facility; and

(b) as a transportation service provider for that transportation facility.

(2) Subsection (1) does not apply if—

(a) the transportation facility or the provider is exempted from registration under that subsection by or under the Rules; or

(b) the transportation facility or the provider is exempted by the AER from registration under that subsection by or under this Law or the Rules.

(3) For performing statutory functions, AEMO is not required to be registered.

91BRS—Exemptions from obligation to register

(1) A transportation service provider (or prospective transportation service provider) for a transportation facility may request the AER to exempt the transportation service provider (or prospective transportation service provider on becoming the transportation service provider for the transportation facility) from the obligation to register—

(a) the transportation facility under section 91BRR(1)(a); or

(b) as a transportation service provider for the transportation facility under section 91BRR(1)(b).

(2) A request under subsection (1) must be made in accordance with the Rules.

(3) On receipt of a request under subsection (1), the AER may, subject to the Rules, grant the exemption.

(4) An exemption granted under subsection (3) may be subject to such terms and conditions as may be required by the Rules or as the AER considers appropriate in accordance with the Rules.

(5) In this section—

prospective transportation service provider for a transportation facility means a person who intends to own, control or operate the transportation facility.

91BRT—Certificates of registration and exemption from registration

(1) A certificate signed by an authorised officer certifying that a transportation facility described, or a transportation service provider named, in the certificate is registered, or exempt from registration, is evidence of the registration or exemption.

(2) In this section, an authorised officer is—

(a) in relation to registration, AEMO's CEO or a person authorised by the CEO to issue certificates under this section; or

(b) in relation to exemption, the AER's CEO or a person authorised by the CEO to issue certificates under this section.

Division 3—Information etc to be provided to Ministers

91C—Ministerial request

(1) The MCE or a Minister of a participating jurisdiction may ask AEMO for information, a report or other services.

(2) The request may be accompanied by a written statement of the purpose for which the information, report or other services are sought.

91CA—Compliance with request

(1) AEMO must comply with a request under this Division.

(2) However, if compliance with the request would involve disclosure of protected information, AEMO may only provide the information if its disclosure is authorised under this Law or the Rules.

Note—

The Minister of an adoptive jurisdiction may be entitled to certain protected information under section 91BB.

91CB—Quarterly report

(1) AEMO must report to the MCE in each quarter on its work under this Division for the previous quarter.

(2) The report must—

(a) summarise each request received in the relevant quarter; and

(b) state by whom each request was made.

Division 4—Gas statement of opportunities

91D—Object and content of gas statement of opportunities

(1) The purpose of the gas statement of opportunities is to provide information to assist Registered participants and other persons in making informed decisions about investment in the covered gas industry.

(2) The gas statement of opportunities must include the following:

(a) for each covered gas specified in the Rules, an assessment of—

(i) medium to long term demand (including export demand) for the gas and for pipeline services; and

(ii) supply and pipeline capacity to meet existing and foreseeable demand for the gas and pipeline services; and

(iii) likely long term production or transmission constraints;

(b) forecasts of the outlook for the covered gas industry over a 20 year planning horizon;

(d) any other information required by the Rules.

91DA—AEMO's obligation in regard to gas statement of opportunities

(1) AEMO must prepare, periodically review, revise, and publish the gas statement of opportunities in accordance with the Rules.

(2) AEMO also has the following functions in relation to the gas statement of opportunities:

(a) to collect and collate GSOO information;

(b) to collect and collate other information in relation to the covered gas industry;

(c) to derive from information of the type mentioned in paragraph (a) or (b) information for inclusion in the gas statement of opportunities.

91DB—Information for the gas statement of opportunities

(1) A person who has possession or control of information in relation to the covered gas industry must give the information to AEMO for use by AEMO in the preparation, review, revision or publication of the gas statement of opportunities if the person is required to do so under the Rules.

(2) The information must be given to AEMO in accordance with the Rules.

(3) Subsection (1) does not apply if the person is exempt under the Rules from giving the information.

(4) Subsection (1) does not require—

(a) a person to disclose information that is the subject of legal professional privilege; or

(b) a natural person to disclose information that would incriminate the person or make the person liable to a criminal penalty under the law of an Australian jurisdiction (whether or not the jurisdiction is a participating jurisdiction).

91DC—Person cannot rely on duty of confidence to avoid compliance with obligation

A person must not refuse to comply with the requirement in section 91DB on the ground of any duty of confidence.

91DD—Giving AEMO false or misleading information

A person must not give GSOO information to AEMO that the person knows is false or misleading in a material particular.

91DE—Immunity of persons giving GSOO information to AEMO

(1) A person who gives GSOO information to AEMO does not incur any civil monetary liability for an act or omission in giving that information unless the act or omission is done or made in bad faith or through negligence.

(2) The civil monetary liability for an act or omission of a kind referred to in subsection (1) done or made through negligence may not exceed the prescribed maximum amount.

(3) The Regulations may, for the purposes of subsection (2), without limitation do all or any of the following:

(a) prescribe a maximum amount that is limited in its application to persons, events, circumstances, losses or periods specified in the Regulations;

(b) prescribe maximum amounts that vary in their application according to the persons to whom or the events, circumstances, losses or periods to which they are expressed to apply;

(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.

91DF—GSOO Procedures

AEMO may, in accordance with the Rules, make GSOO Procedures.

91DG—Nature of GSOO Procedures

(1) GSOO Procedures are a form of statutory instrument directed at the collection of information for the gas statement of opportunities.

(2) The GSOO Procedures may deal with the following matters:

(a) the matters specified by the Rules;

(b) any other matter relevant to the gas statement of opportunities on which this Law or the Rules contemplate the making of Procedures.

(3) The GSOO Procedures—

(a) may vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(b) may confer functions or powers on, or leave any matter or thing to be decided by, AEMO; and

(d) may confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and

(e) may confer power on AEMO to require a person to whom a right is conferred, or an obligation is imposed, under the Procedures—

(i) to comply with a guideline, standard or other document of an administrative nature; or

(ii) to conduct, or submit to, a test designated by AEMO under the Procedures; and

(f) may exempt, or confer a power of exemption, from the application of the Procedures or specified provisions of the Procedures; and

(g) may contain provisions of a savings or transitional nature.

(4) AEMO must not, without the consent of the MCE, make Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.

(5) The GSOO Procedures cannot—

(a) create an offence; or

(b) provide for a criminal or civil penalty.

91DH—Compliance with GSOO Procedures

(1) AEMO and each person to whom the GSOO Procedures are applicable must comply with the Procedures.

(2) If AEMO has reason to believe that a person is not complying with the GSOO Procedures, it may, by notice in writing, direct the person to comply with the relevant provisions of the GSOO Procedures.

(3) A person to whom a direction is addressed under subsection (2) must comply with the direction.

Division 5—Fees and charges

91E—AEMO fees and charges

(1) AEMO may—

(a) determine fees and charges for services provided by it under this Law, the Rules or the Procedures; and

(b) charge for, and recover, the fees and charges in accordance with this Law and the Rules.

(2) The fees and charges for a service are to be determined on a non-profit basis that—

(a) provides for full recovery of the costs of providing the service; and

(b) does not amount to taxation; and

(3) Exact equivalence is not required between the costs of providing a service and the revenue derived from providing the service in a particular accounting period if there are reasonable grounds to believe that costs will over time approximate revenue.

Note—

This section does not prevent AEMO from generating a profit from the performance of non-statutory functions (such as the provision of consultancy services). Any such profit would not, however, be available for distribution to members.

(4) Despite the above provisions, a component of AEMO's fees and charges may, if the Rules so provide, relate to costs that are not specifically referable to services provided under this Law, the Rules or the Procedures.

Note—

As a general rule, AEMO's expenditures will be allocated to services provided to the electricity industry or the gas industry. Subsection (4) deals with costs that cannot be wholly attributed to either industry.

(5) This section does not limit AEMO's power to determine, charge for and recover fees and charges for carrying out functions conferred by jurisdictional legislation.

(6) In this section—

service includes the performance of statutory functions.

Division 6—Information gathering

Subdivision 1—Market information orders and market information notices

91F—Information gathering powers

(1) If AEMO considers it reasonably necessary to do so for the exercise of a relevant function, it may—

(a) make a general market information order requiring information from persons of a class specified in the order; or

(b) serve a market information notice requiring information from the person to whom the notice is addressed.

(2) A relevant function is—

(a) the preparation, review, revision or publication of the gas statement of opportunities; or

(ba) an east coast gas system reliability and supply adequacy function; or

(b) a declared system function; or

(c) any other statutory function for which this Law authorises AEMO to gather information by means of a market information instrument.

(3) A general market information order or a market information notice may only be addressed to persons of a class declared by the Regulations to be a class to which such an order or notice may be addressed.

(4) In considering whether to make a general market information order or to issue a market information notice and, if so, the terms of the order or notice, AEMO must have regard to the reasonable costs of efficient compliance.

(4a) Subsections (3) and (4) do not apply to an order or notice relating to an east coast gas system reliability and supply adequacy function.

(4b) The Rules may specify a person, or class of persons, to whom an order or notice relating to an east coast gas system reliability and supply adequacy function may be issued.

(5) A market information instrument—

(a) must specify—

(i) the information, or categories of information, that is to be provided to AEMO; and

(ii) the time by which the information is required; and

(iii) in the case of a general market information order—the class of persons to which the order applies; and

(iv) in the case of a market information notice—the name of the person to whom the notice is addressed; and

(b) may specify the manner and form in which information must be provided.

(6) Without limiting subsection (5), a market information instrument—

(a) may require information of any of the following kinds:

(i) historic, current and forecast information;

(ii) information that may be derived from other information in the possession or control of the person required to provide the information; and

(b) may require the provision of information on an annual or other periodic basis.

91FA—Making and publication of general market information order

(1) Before making a final decision to make a general market information order, AEMO must—

(a) invite persons of the class to which the proposed order is addressed to make representations about the terms of the proposed order within a period (at least 20 business days) specified in the invitation; and

(b) consider any written representations made in response to the invitation within the specified period.

(2) A general market information order must be published on AEMO's website as soon as practicable after it is made.

(3) Subsection (1) does not apply to an order relating to an east coast gas system reliability and supply adequacy function.

(4) AEMO must, before making an order relating to an east coast gas system reliability and supply adequacy function—

(a) consider the extent to which persons of the class to which the proposed order is addressed may make representations about the terms of the proposed order; and

(b) invite those persons to make representations to the extent AEMO considers possible in the circumstances.

91FB—Service of market information notice

(1) Before serving a market information notice, AEMO must—

(a) give the person on whom AEMO intends to serve the market information notice (the respondent ) written notice of its intention to do so; and

(b) give the respondent a draft of the market information notice.

(2) A notice under subsection (1) must—

(a) invite the respondent to make written representations to AEMO about whether AEMO should serve the market information notice; and

(b) specify the period (at least 20 business days) allowed for making the representations.

(3) AEMO must consider written representations made in response to the invitation within the specified period before making a final decision to serve the market information notice.

(4) This section does not apply to a notice relating to an east coast gas system reliability and supply adequacy function.

91FC—Compliance with market information instrument

(1) A market information instrument takes effect—

(a) in the case of a general market information order—on publication on AEMO's website; or

(b) in the case of a market information notice—on service of the notice on the person to whom it is addressed.

(2) AEMO may, by written notice, exempt a person from compliance with a general market information order—

(a) unconditionally or on specified conditions; and

(b) wholly or to a specified extent.

(3) Subject to any exemption, a person who is a member of a class to which a general market information order applies must comply with the order.

(4) A person on whom a market information notice is served must comply with the notice.

(5) The duty to comply with a market information instrument prevails over a duty of confidence.

(6) However—

(a) a person cannot be required by a market information instrument to disclose information that is the subject of legal professional privilege; and

(b) a natural person cannot be required by a market information instrument to disclose information that would incriminate the person or make the person liable to a criminal penalty under the law of an Australian jurisdiction (whether or not the jurisdiction is a participating jurisdiction).

(7) A person incurs no liability, by complying with a market information instrument, for breach of contract, breach of confidence or any other civil wrong.

91FD—Use of information

Subject to this Law, the Rules, the Regulations and the Procedures, AEMO may use information obtained by market information instrument or in any other way for any purpose connected with the exercise of any of its statutory functions.

91FE—Providing false or misleading information

A person must not, in purported compliance with a market information instrument, provide information to AEMO that the person knows is false or misleading in a material particular.

Maximum penalty:

(a) in the case of a natural person—$6 300;

(b) in the case of a body corporate—$31 500.

Note—

Subdivision 2—STTM information

91FEA—Obligation to give information to AEMO

(1) A person of the following kind who has possession or control of information that relates to and is necessary for the operation and administration of a short term trading market by AEMO must give AEMO the information for use by AEMO for the operation and administration of that short term trading market if the person is required to do so under the Procedures or Rules:

(a) an STTM trading participant;

(b) a service provider;

(d) a producer;

(da) a blend processing service provider;

(e) another person who is prescribed by the Regulations for the purposes of this paragraph.

(2) The information must be given to AEMO in accordance with the Procedures or Rules.

(3) Subsection (1) does not apply if the person is exempt under the Rules from giving the information.

(4) However, subsection (1) does not require—

(a) a person to disclose information that is the subject of legal professional privilege; or

91FEB—Person cannot rely on duty of confidence to avoid compliance with obligation

A person must not refuse to comply with the requirement in section 91FEA(1) on the ground of any duty of confidence.

91FEC—Giving to AEMO false and misleading information

A person must not give STTM information to AEMO that the person knows is false or misleading in a material particular.

Maximum penalty:

(a) in the case of a natural person—$6 300;

(b) in the case of a body corporate—$31 500.

Note—

91FED—Immunity of persons giving information to AEMO

(1) A person who gives STTM information to AEMO does not incur any civil monetary liability for an act or omission in preparing or 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.

(3) The Regulations may, for the purposes of subsection (2), without limitation do all or any of the following:

(a) prescribe a maximum amount that is limited in its application to persons, events, circumstances, losses or periods specified in the Regulations;

(b) prescribe maximum amounts that vary in their application according to the persons to whom or the events, circumstances, losses or periods to which they are expressed to apply;

Subdivision 3—Capacity auction information

91FEE—Obligation to give information to AEMO

(1) A person of the following kind who has possession or control of information that relates to and is necessary for the operation and administration of a capacity auction by AEMO or the performance of any other capacity auction function of AEMO must give AEMO the information for use by AEMO for the operation and administration of that capacity auction or performance of that other function if the person is required to do so under the Procedures or Rules:

(a) a capacity auction participant;

(b) a transportation service provider;

(d) another person who is prescribed by the Regulations for the purposes of this subsection.

(2) The information must be given to AEMO in accordance with the Procedures or Rules.

(3) Subsection (1) does not apply if the person is exempt under the Rules from giving the information.

(4) However, subsection (1) does not require—

(a) a person to disclose information that is the subject of legal professional privilege;

91FEF—Person cannot rely on duty of confidence to avoid compliance with obligation

A person must not refuse to comply with the requirement in section 91FEE(1) on the ground of any duty of confidence.

91FEG—Giving to AEMO false and misleading information

A person must not give capacity auction information to AEMO that the person knows is false or misleading in a material particular.

Maximum penalty:

(a) in the case of a natural person—$6 300;

(b) in the case of a body corporate—$31 500.

Note—

91FEH—Immunity of persons giving information to AEMO

(1) A person who gives capacity auction information to AEMO does not incur any civil monetary liability for an act or omission in preparing or 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.

(3) The Regulations may, for the purposes of subsection (2), without limitation do all or any of the following:

(a) prescribe a maximum amount that is limited in its application to persons, events, circumstances, losses or periods specified in the Regulations;

(b) prescribe maximum amounts that vary in their application according to the persons to whom or the events, circumstances, losses or periods to which they are expressed to apply;

Subdivision 4—Information used for a capacity auction

91FEI—Giving false and misleading information used for capacity auctions

A person must not give to a transportation service provider information that relates to and is necessary for the operation and administration of a capacity auction by AEMO or the performance of any other capacity auction function of AEMO that the person knows is false or misleading in a material particular.

Maximum penalty:

(a) in the case of a natural person—$3 400;

(b) in the case of a body corporate—$17 000.

Note—

Subdivision 5—Declared wholesale gas market information

91FEJ—Information required to be given to AEMO

(1) A person who has possession or control of information must give the information to AEMO if—

(a) the information relates to the operation and administration of the covered gas industry; and

(b) the information is necessary for AEMO to perform a declared system function under section 91BA(1)(c) or (d); and

(2) The information must be given to AEMO in accordance with the Wholesale Market Procedures or the Rules.

(3) Subsection (1) does not apply if the person is exempt under the Rules from giving the information.

(4) Subsection (1) does not require—

(a) a person to disclose information that is the subject of legal professional privilege; or

(b) a natural person to disclose information that would incriminate the person or make the person liable to a criminal penalty under the law of an Australian jurisdiction, whether or not the jurisdiction is a participating jurisdiction.

91FEK—Person cannot rely on duty of confidence to avoid compliance with obligation

A person must not refuse to comply with the requirement in section 91FEJ on the ground of any duty of confidence.

91FEL—Giving AEMO false or misleading information

A person must not give information to AEMO under this Subdivision that the person knows is false or misleading in a material particular.

91FEM—Immunity of persons giving information to AEMO

(1) A person who gives information to AEMO under this Subdivision does not incur any civil monetary liability for an act or omission in giving that information unless the act or omission is done or made in bad faith or through negligence.

(2) The civil monetary liability for an act or omission of a kind referred to in subsection (1) done or made through negligence may not exceed the maximum amount prescribed by the Regulations.

(3) The Regulations may, for the purposes of subsection (2), without limitation do all or any of the following:

(a) prescribe a maximum amount that is limited in its application to persons, events, circumstances, losses or periods specified in the Regulations;

(b) prescribe maximum amounts that vary in their application according to the persons to whom, or the events, circumstances, losses or periods to which, they are expressed to apply;

Division 7—Protected information

Subdivision 1—AEMO's obligation to protect information

91G—Protected information

(1) AEMO must take all reasonable measures to protect from unauthorised use or disclosure information ( protected information )—

(a) given to it in confidence; or

(b) given to it in connection with the performance of its statutory functions and classified under the Rules, the Procedures or the Regulations as confidential information.

(2) AEMO makes unauthorised use of protected information if (and only if) it uses the information contrary to this Law, the Rules, the Procedures or the Regulations.

Note—

Section 91FD authorises AEMO (subject to the Law, the Rules, the Procedures and the Regulations) to use information (whether obtained by market information instrument or in any other way) for any purpose connected with the exercise of any of its statutory functions.

(3) AEMO makes an unauthorised disclosure of protected information if the disclosure is not authorised under this Law, the Rules, the Procedures or the Regulations.

Subdivision 2—Disclosure of protected information held by AEMO

91GA—Authorised disclosure of protected information

(1) AEMO is authorised to disclose protected information in accordance with this Subdivision.

(2) AEMO may also be authorised to disclose protected information by the Rules, the Procedures or the Regulations.

91GB—Disclosure with prior written consent

AEMO is authorised to disclose protected information if it has the written consent of the person from whom the information was obtained.

91GC—Disclosure required or permitted by law etc

(1) The disclosure of protected information as required or permitted by a law of the Commonwealth, a State or Territory is authorised.

(2) The disclosure of protected information to any of the following is authorised:

(a) the Australian Competition and Consumer Commission;

(b) the Australian Energy Regulator;

(ca) the Energy Security Board;

(d) the Economic Regulation Authority of Western Australia;

(e) a jurisdictional regulator;

(f) the National Competition Council;

(g) if the information is reasonably required by an energy ombudsman to resolve a dispute between a Registered participant and a retail customer but the information is not end-use consumer information—the energy ombudsman;

(h) a prescribed body;

(i) any staff or consultant assisting a body mentioned above in performing its functions or exercising its powers.

(3) A person or body to whom protected information is disclosed under subsection (2) 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.

(4) AEMO may impose conditions to be complied with in relation to protected information disclosed under subsection (2).

(5) The disclosure of protected information by a person in the ordinary course of carrying out functions as an officer or employee of, or consultant to, AEMO or a body mentioned in subsection (2) is authorised.

91GD—Disclosure for purposes of court and tribunal proceedings

AEMO is authorised to disclose protected information for the purposes of—

(a) civil or criminal proceedings; or

(b) a proceeding before the Tribunal or a tribunal established by or under a law of this jurisdiction or another participating jurisdiction.

91GE—Disclosure of document with omission of protected information

(1) If a document contains both protected information and other information, AEMO may disclose the document with the omission of the protected information.

(2) AEMO must include a note at the place in the document from which the protected information is omitted to the effect that protected information has been omitted from the document.

91GF—Disclosure of non-identifying information

AEMO is authorised to disclose protected information if—

(a) it does not disclose any elements of the information that could lead to the identification of the person to whom the information relates; or

(b) the manner in which it discloses the information does not identify the person to whom that information relates.

Example—

Protected information may be combined or arranged with other information to prevent the identification of the person to whom the protected information relates.

91GFA—Disclosure of information in an aggregated form

AEMO is authorised to disclose information given to it in confidence, in compliance with this Law or the Rules or voluntarily, if the information has been combined or arranged with other information so that it does not reveal any confidential aspects of the information.

91GG—Disclosure of protected information for safety, proper operation of the market etc

(1) AEMO is authorised to disclose protected information if—

(a) the disclosure is necessary for—

(i) the safety, reliability, adequacy or security of the supply of covered gas; or

(ii) the safety, reliability, adequacy or security of a pipeline; or

(b) the disclosure is necessary for the proper operation of a regulated gas market, a capacity auction or the Capacity Transfer and Auction Procedures; or

(2) AEMO may impose conditions to be complied with in relation to information disclosed under subsection (1)(a) or (b).

91GH—Disclosure of protected information authorised if detriment does not outweigh public benefit

(1) Subject to this section, AEMO is authorised to disclose protected information after the restricted period if AEMO is of the opinion—

(a) that the disclosure of the information would not cause detriment to the person who has given it or to a person from whom that person received it; or

(b) that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment.

(2) Before disclosing the protected information, AEMO must give the person who gave the protected information—

(a) a written notice (an initial disclosure notice ) stating—

(i) that AEMO wishes to disclose the information, specifying the nature of the intended disclosure; and

(ii) that AEMO is of the opinion required by subsection (1); and

(iii) that the person, within the period specified in the notice, may make representations to AEMO against disclosure of the information; and

(b) AEMO's decision, in writing, setting out the reasons why AEMO—

(i) wishes to make the disclosure; and

(ii) is of the opinion required by subsection (1).

(3) If AEMO is aware that the person who gave the protected information in turn received the information from another person and is aware of the other person's identity and address, AEMO must, before disclosing the information give the other person—

(a) a written notice (an initial disclosure notice ) stating—

(i) that AEMO wishes to disclose the information, specifying the nature of the intended disclosure; and

(ii) that AEMO is of the opinion required by subsection (1); and

(iii) that the person, within the period specified in the notice, may make representations to AEMO against disclosure of the information; and

(b) AEMO's decision, in writing, setting out the reasons why AEMO—

(i) wishes to make the disclosure; and

(ii) is of the opinion required by subsection (1).

(4) AEMO must consider every representation made to it by a person given an initial disclosure notice within the time specified in the notice.

(5) The period specified in an initial disclosure notice must not be less than 5 business days after the date the initial disclosure notice is given to the person.

(6) If, after considering the representations, AEMO wishes to disclose the protected information, AEMO must give the person given the initial disclosure notice—

(a) a written notice (a further disclosure notice ) stating—

(i) that AEMO intends to disclose the information, specifying the nature of the intended disclosure; and

(ii) that AEMO is of the opinion required by subsection (1); and

(b) AEMO's decision, in writing, setting out the reasons why AEMO—

(i) intends to make the disclosure; and

(ii) is of the opinion required by subsection (1).

(7) For the purposes of this section, the disclosure of anything that is already in the public domain at the time AEMO wishes to disclose it cannot cause detriment to any person referred to in subsection (2) or (3).

(7a) Despite anything to the contrary in this Law, this section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to—

(a) AEMO's decision under subsection (1) to disclose protected information; and

(b) without limiting paragraph (a), if AEMO's decision under subsection (1) is to disclose the protected information, AEMO's opinion—

(i) that the disclosure of the information would not cause detriment to the person who gave the information or, if the person who gave the information in turn received the information from another person, that other person (as the case may be); or

(ii) that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment.

(8) In this section—

restricted period means a period of 5 business days after—

(a) an initial disclosure notice has been given under this section; or

(b) a further disclosure notice has been given under this section,

whichever is the later.

Division 8—Obligation to make payments

91H—Obligations under Rules or Procedures to make payments

(1) If, under the Rules or Procedures—

(a) a Registered participant is required to pay an amount to AEMO or another Registered participant; or

(b) AEMO is required to pay an amount to a Registered participant,

and that amount is not paid within 28 days after it is due in accordance with the Rules or Procedures, the Registered participant to whom the amount is due or AEMO (as the case requires) may recover that amount in a court of competent jurisdiction as a civil debt.

(2) If, under the Rules or Procedures, a Registered participant is required to pay an amount to AEMO or another Registered participant, or AEMO is required to pay an amount to a Registered participant, and the Rules or Procedures do not specify a date for payment of that amount—

(a) that amount must be paid within the period of time specified in a notice to pay issued by the Registered participant or AEMO (as the case requires) that specifies that amount; and

(b) the Registered participant that issued the notice to pay, or AEMO (as the case requires), may, if that amount is not paid within 28 days after it is due in accordance with that notice, recover that amount in a relevant court of competent jurisdiction as a civil debt.

(3) Subsections (1) and (2) apply despite a Registered participant or AEMO disputing, in accordance with the Rules, an amount to be paid under the Rules or Procedures, or specified in a notice to pay, unless—

(a) the Rules or Procedures otherwise provide; or

(b) the parties to the dispute agree otherwise; or

(c) a Dispute resolution panel, in a rule dispute in respect of the payment of an amount referred to in subsection (1) or (2), determines that the relevant subsection does not apply; or

(d) a court of competent jurisdiction determines that subsection (1) or (2) does not apply.

(4) In this section—

AEMO includes, in relation to a gas trading exchange, a person appointed by AEMO to operate that exchange;

notice to pay includes a statement of payment, settlement statement, bill or invoice;

Registered participant includes the following:

(a) an exempted participant;

(b) a capacity auction participant;

(c) a transportation service provider registered with AEMO under section 91BRR or exempted from registration under that section;

(d) a gas trading exchange member;

(e) a relevant entity (within the meaning of section 91AF).

Division 9—AEMO's statutory funds

91J—Definitions

In this Division—

Rule fund means—

(a) a fund—

(i) established under legislation of a participating jurisdiction (whether primary or subordinate); and

(ii) administered by a former gas market operator immediately before the relevant changeover date; and

(iii) transferred to AEMO's administration on or after that date; or

(b) a fund established as a Rule fund under this Division.

91JA—AEMO's Rule funds

(1) Subject to the Rules—

(a) the Rule funds in existence on the relevant changeover date vest in AEMO; and

(b) AEMO then becomes (and will continue to be) responsible for the administration of the Rule funds then in existence; and

(c) AEMO will be responsible for the administration of a Rule fund established after the relevant changeover date as from the establishment of the fund.

(2) AEMO must, if required to do so by the Rules or the Procedures, establish and maintain a new Rule fund in accordance with the Rules or the Procedures.

(3) Nothing in this Law, the Rules or the Procedures constitutes AEMO, or a director of AEMO, as a trustee of a Rule fund.

91JB—Payments into and out of Rule funds

(1) AEMO must ensure that there is paid into each Rule fund—

(a) all amounts received by AEMO that, under the Rules or the Procedures, are required to be paid into the fund; and

(b) income from investment of money in the fund.

(2) Money held in a Rule fund may be applied only in payment of—

(a) amounts that, under the Rules or the Procedures, are required or permitted to be paid from the fund; or

(b) liabilities or expenses of the fund.

91JC—Investment

(1) AEMO may invest money standing to the credit of a Rule fund.

(2) AEMO must, in exercising the power of investment, exercise the care, diligence and skill that a prudent person would exercise in managing the affairs of others.

Division 10—Immunity

91K—Immunity from liability

(1) Neither AEMO nor an officer or employee of AEMO incurs any civil monetary liability for an act or omission in the performance or exercise, or purported performance or exercise, of a function or power under this Law, the Rules or the Procedures 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 maximum amount prescribed by the Regulations.

(3) The Regulations prescribing a limitation of civil monetary liability for the purposes of subsection (2)—

(a) may limit its application, or vary the maximum amount, according to—

(i) the nature of the functions or powers out of which the liability arises; or

(ii) the market to which the liability relates; or

(iii) the nature of the events or circumstances out of which the liability arises; or

(iv) the nature of the damage or loss; or

(v) the person or persons suffering damage or loss; or

(vi) the season or period in which the liability is incurred; or

(vii) any combination of the above; and

(b) may prescribe the manner in which a maximum amount is to be divided among claimants.

(4) AEMO may enter into an agreement with a person varying or excluding the operation of a provision of this section and this section will then apply to that person subject to that agreement.

(5) This section does not apply to any liability of an officer or employee of a body corporate to the body corporate.

91KA—Supply interruption or disconnection in compliance with AEMO's direction

(1) A distributor incurs no civil monetary liability for interrupting or disconnecting the supply of covered gas to an end user in compliance or purported compliance with a direction given by AEMO under Rules related to user exit from a regulated retail gas market.

(2) The immunity does not extend to an act or omission done or made in bad faith or through negligence.

(3) 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 maximum amount prescribed by the Regulations.

(4) The Regulations may, for the purposes of subsection (3)—

(a) prescribe a limitation of liability that is limited in its application to persons, events, losses or periods specified in the Regulations;

(b) prescribe a limitation of liability that varies in amount according to the persons to whom, or the events, circumstances, losses or periods to which, it is expressed to apply;

(5) In this section—

distributor means the service provider that provides pipeline services by means of a distribution pipeline and includes an officer, employee or agent of the service provider.

91KB—Immunity in relation to use of computer software

(1) A protected person incurs no civil monetary liability for loss or damage suffered by a Registered participant or other person in consequence of the use of computer software to operate a gas market.

(2) In this section—

protected person means—

(a) AEMO; or

(b) a former gas market operator; or

91KC—Immunity from liability—dispute resolution

(1) A protected person incurs no civil monetary liability for an act or omission in the exercise of powers or functions related to dispute resolution under the Rules unless the act or omission is done or made in bad faith.

(2) In this section—

protected person means—

(a) a person appointed under the Rules to manage and facilitate dispute resolution under or in relation to the Rules or the Procedures; or

(b) an arbitrator, mediator or other person appointed to resolve, or assist in the resolution of, disputes under or in relation to the Rules or the Procedures; or

Division 11—Other matters

91KD—Disclosure of information for purpose of market trials

(1) This section applies if AEMO—

(a) conducts a trial relating to the operation and administration of a market, or a part of a market, for covered gas; and

(b) under, or for the purpose of, that trial is given information by another person (the discloser ) that relates to another person.

(2) The discloser, by giving the information to AEMO, incurs no liability for breach of contract, breach of confidence or any other civil wrong.

(3) AEMO, by giving or disclosing the information to a person, or publicly releasing the information, incurs no liability for breach of contract, breach of confidence or any other civil wrong.

Part 7—Regulation of retail gas markets

Division 1—Registration

91L—Retail gas markets

(1) A retail market for 1 or more covered gases in each participating jurisdiction constitutes a retail gas market .

(2) A regulated retail gas market is a retail gas market the operation of which is governed under the Rules or Procedures (or both).

91LA—Retail market participation

(1) A person participates in a regulated retail gas market in a registrable capacity if the person is classified under the Rules as a participant in the relevant market.

(2) A person cannot be classified under the Rules as a participant in a regulated retail gas market unless the person falls within 1 or more of the following classes:

(a) service providers;

(b) users;

(d) producers;

(e) storage providers;

(f) traders;

(g) a class prescribed under the Regulations.

91LB—Registration required for market participation

(1) A person must not participate in a regulated retail gas market in a registrable capacity unless registered (or exempted from registration) in accordance with the Rules.

(2) A person may also be exempted from registration by or under jurisdictional gas legislation.

(3) A person who participates in a regulated retail gas market in 2 or more registrable capacities must be registered (or exempted from registration) in both or all those capacities.

(4) For performing statutory functions, AEMO is not required to be registered.

91LC—Certificates of registration etc

(1) A certificate signed by an authorised officer certifying that a person named in the certificate is registered, or exempted from registration, is evidence of the registration or exemption.

(2) For this section, an authorised officer is AEMO's CEO or a person authorised by the CEO to issue certificates under this section.

Division 2—Retail Market Procedures

91M—Retail Market Procedures

AEMO may, in accordance with the Rules, make Retail Market Procedures.

91MA—Nature of Retail Market Procedures

(1) Retail Market Procedures are a form of statutory instrument directed at the regulation of a retail gas market.

(2) The Retail Market Procedures may deal with the following matters:

(a) the matters specified by the Rules;

(b) any other matter relevant to a regulated retail gas market on which this Law or the Rules contemplate the making of Procedures.

(3) The Retail Market Procedures—

(a) may apply to regulated retail gas markets generally or any 1 or more of the regulated retail gas markets; and

(b) may vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(d) may confer rights or impose obligations on Registered participants, exempted participants, users, end users or other persons; and

(e) may require a Registered participant or an exempted participant to give an indemnity against injury, damage or loss arising from the participant's failure to comply with requirements imposed by the Procedures; and

(f) may confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and

(g) may confer power on AEMO to require a person on whom a right is conferred, or an obligation imposed, under the Procedures—

(i) to comply with a guideline, standard or other document of an administrative nature; or

(ii) to conduct, or submit to, a test designed by AEMO under the Procedures; and

(h) may exempt, or confer a power of exemption, from the application of the Procedures or specified provisions of the Procedures; and

(i) may contain provisions of a savings or transitional nature.

(4) AEMO must not, without the consent of the MCE, make Retail Market Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.

(5) The Retail Market Procedures cannot—

(a) create an offence; or

(b) provide for a criminal or civil penalty.

91MB—Compliance with Retail Market Procedures

(1) AEMO and each person to whom the Retail Market Procedures are applicable must comply with the Procedures.

(3) If AEMO has reasonable grounds to suspect a breach of the Retail Market Procedures, it must, after making such inquiries and investigation as it considers appropriate, make a decision as to whether the breach is a material breach.

(4) If AEMO decides the breach is material, AEMO—

(a) must publish the decision and the reasons for it on its website; and

(b) may direct the person suspected of the breach to rectify it or to take specified measures to ensure future compliance (or both); and

(5) A direction by AEMO under subsection (4)(b) must—

(a) specify the breach; and

(b) specify the date by which the direction is to be complied with; and

(6) A person to whom a direction is given under subsection (4)(b) must comply with the direction.

(7) AEMO must give a copy of its decision under subsection (3), its reasons for the decision and (if relevant) any direction under subsection (4)(b) to the AER.

(8) If AEMO decides the breach is not material, AEMO must—

(a) publish the decision and the reasons for it on its website; and

(b) give a copy of the decision and the reasons for it to the AER.

Note—

Chapter 3—Regulatory framework for pipelines

Part 1—Scheme pipeline determinations and scheme pipeline elections

Division 1—Scheme pipeline determinations

92—AER may make scheme pipeline determination

(1) The AER may, on its own initiative or on the application of any person, make a determination that a non-scheme pipeline is a scheme pipeline (a scheme pipeline determination ).

(2) An application for a scheme pipeline determination must—

(a) be made in accordance with the Rules; and

(b) contain the information required by the Rules; and

(d) be dealt with in accordance with the Rules.

93—Requirements for making, or not making, a scheme pipeline determination

(1) A scheme pipeline determination or a decision not to make a scheme pipeline determination must—

(a) be made in accordance with this Law and the Rules; and

(b) contain the information required by the Rules; and

(d) be made publicly available in accordance with the Rules; and

(e) if a scheme pipeline determination is made—specify the date the determination takes effect.

(2) For subsection (1)(e), the date specified must be at least 6 months, but not more than 12 months, after the determination is made.

94—Effect of scheme pipeline determination

A pipeline the subject of a scheme pipeline determination—

(a) becomes a scheme pipeline when the scheme pipeline determination takes effect; and

(b) continues to be a scheme pipeline while the scheme pipeline determination remains in effect.

Division 2—Scheme pipeline elections

95—Scheme pipeline elections

(1) A service provider for a non-scheme pipeline may elect for the pipeline to be dealt with under this Law as a scheme pipeline (a scheme pipeline election ).

(2) A scheme pipeline election must be made in accordance with the Rules.

96—Effect of scheme pipeline elections

(1) A scheme pipeline election takes effect on a day, determined by the AER, that is at least 6 months, but not more than 12 months, after the AER receives the election.

(2) However, if the AER does not make a determination under subsection (1), the scheme pipeline election takes effect on the day that is 12 months after the AER receives the election.

(3) On the day a scheme pipeline election takes effect under this section, the non-scheme pipeline the subject of the scheme pipeline election becomes a scheme pipeline.

Part 2—Scheme pipeline revocation determinations

97—AER may make scheme pipeline revocation determination

(1) The AER may, on its own initiative or on the application of any person, make a scheme pipeline revocation determination in relation to any scheme pipeline other than a designated pipeline.

(2) An application for a scheme pipeline revocation determination must—

(a) be made in accordance with the Rules; and

(b) contain the information required by the Rules; and

(d) be dealt with in accordance with the Rules.

98—Requirements for making, or not making, a scheme pipeline revocation determination

A scheme pipeline revocation determination or a decision not to make a scheme pipeline revocation determination must—

(a) be made in accordance with this Law and the Rules; and

(b) contain the information required by the Rules; and

(d) be made publicly available in accordance with the Rules; and

(e) if a scheme pipeline revocation determination is made—specify the date the determination takes effect.

99—Effect of scheme pipeline revocation determination

A pipeline the subject of a scheme pipeline revocation determination ceases to be a scheme pipeline when the scheme pipeline revocation determination takes effect.

Part 3—Greenfields incentive determinations and greenfields price protection determinations

Division 1—Greenfields incentive determinations

100—AER may make greenfields incentive determination

(1) The AER may, on the application of the service provider for a greenfields pipeline project, make a determination that the pipeline the subject of the greenfields pipeline project cannot become a scheme pipeline during the operative period for the determination (a greenfields incentive determination ).

(2) An application for a greenfields incentive determination—

(a) cannot be made after the pipeline is commissioned; and

(b) must be made in accordance with the Rules; and

(d) must contain the information required by the Rules; and

(e) need not describe, or include details of, excluded infrastructure; and

(f) must be accompanied by the fee prescribed by the Regulations (if any); and

(g) must be dealt with in accordance with the Rules.

101—Requirements for making, or not making, a greenfields incentive determination

(1) A greenfields incentive determination or a decision not to make a greenfields incentive determination must—

(a) be made in accordance with this Law and the Rules; and

(b) contain the information required by the Rules; and

(d) be made publicly available in accordance with the Rules; and

(e) if a greenfields incentive determination is made—specify the date the determination takes effect.

(2) The AER may, in having regard to the matters mentioned in section 112, decide a period during which a greenfields incentive determination is to continue in operation that is less than 15 years.

(3) If the AER decides a period under subsection (2), the greenfields incentive determination must also specify the period.

102—Effect of greenfields incentive determination

(1) A greenfields incentive determination takes effect on and from the date specified in the determination.

(2) The period during which a greenfields incentive determination continues in force (the operative period ) is—

(a) if the AER decides a period under section 101(2) that is less than 15 years—that period; or

(b) otherwise—15 years from the commissioning of the pipeline.

(3) During the operative period, the pipeline the subject of the greenfields incentive determination cannot become a scheme pipeline.

(4) An application for a scheme pipeline determination in relation to a pipeline to which a greenfields incentive determination applies can be made—

(a) before the end of the operative period for the greenfields incentive determination; but

(b) only if the scheme pipeline determination is to commence from, or after, the end of the operative period.

103—Requirement for conformity between pipeline description and pipeline as constructed

(1) Subject to this Part—

(a) a greenfields incentive determination applies to the pipeline as described in the relevant pipeline description; and

(b) if the pipeline, as constructed, materially differs from the pipeline as described in the relevant pipeline description, the determination does not apply to the pipeline and the service provider is not entitled to its benefit.

(2) In determining whether a pipeline, as constructed, materially differs from the relevant pipeline description, excluded infrastructure is not to be taken into account.

(3) In this section—

relevant pipeline description means a description of the pipeline required to be included in the application for the greenfields incentive determination made under section 100.

104—Power of AER to amend pipeline description

(1) The AER may, on application by the service provider for a pipeline to which a greenfields incentive determination applies, amend the relevant pipeline description.

(2) An amendment cannot, however, be made under this section after the pipeline has been commissioned.

(3) In deciding whether to make the amendment sought, the AER must have regard to the criteria that were relevant to the making of the greenfields incentive determination.

(4) In this section—

relevant pipeline description means a description of the pipeline required to be included in the application for the greenfields incentive determination made under section 100.

Division 2—Early termination of greenfields incentive determination

105—Greenfields incentive determination may lapse

(1) A greenfields incentive determination lapses if the pipeline to which it applies is not commissioned within 3 years after the determination takes effect.

(2) The AER may, in a particular case, extend the 3 year period mentioned in subsection (1).

106—Revocation by consent

The AER may, at the request of the service provider for the pipeline to which a greenfields incentive determination applies, revoke the determination.

107—Revocation for misrepresentation

The AER may revoke a greenfields incentive determination on the ground that—

(a) the applicant misrepresented a material fact on the basis of which the determination was made; or

(b) the applicant failed to disclose material information that the applicant was required to disclose under this Chapter.

108—Exhaustive provision for termination of greenfields incentive determination

A greenfields incentive determination does not terminate, and cannot be revoked, before the end of the operative period for the determination other than as provided for under this Part.

Division 3—Greenfields price protection determinations

109—AER may make greenfields price protection determination

(1) The AER may, on the application of the service provider for a greenfields pipeline project, make a determination that prices and non-price terms and conditions for particular pipeline services provided by means of a pipeline that are specified in the determination are protected, in the manner provided for in the Rules, in any arbitration of an access dispute involving the pipeline (a greenfields price protection determination ).

(2) An application for a greenfields price protection determination—

(a) cannot be made after the pipeline is commissioned; and

(b) must be made in accordance with the Rules; and

(d) must be dealt with in accordance with the Rules.

110—Requirements for making, or not making, a greenfields price protection determination

(1) The AER must not make a greenfields price protection determination unless—

(a) the pipeline the subject of the determination is also the subject of a greenfields incentive determination; and

(b) the AER is satisfied—

(i) that—

(A) the pipeline has been developed following a competitive process; and

(B) the prices and non-price terms and conditions for pipeline services that will be made available to prospective users during the operative period for the greenfields price protection determination have been set as a result of that process; or

(ii) that—

(A) one or more form of regulation factors effectively constrained the exercise of market power by the service provider when the prices and non-price terms and conditions for pipeline services that will be made available to prospective users during the operative period for the greenfields price protection determination were determined; and

(B) the making of the determination will, or is likely to, contribute to the achievement of the national gas objective.

(2) For the purposes of subsection (1)(b)(i)(A), a pipeline is taken to have been developed following a competitive process if the AER is reasonably satisfied from the information provided to it by the applicant for the greenfields price protection determination that there was competition (whether formal or informal) to develop the pipeline between 2 or more prospective service providers that—

(a) were not related bodies corporate of each other; and

(b) did not include a related body corporate of the applicant.

Example—

Competition between prospective service providers could involve the service providers competing on the basis of—

(a) different pipeline routes; or

(b) an expansion of an existing pipeline and the development of a new pipeline.

(3) A greenfields price protection determination or a decision not to make a greenfields price protection determination must—

(a) be made in accordance with this Law and the Rules; and

(b) contain the information required by the Rules; and

(d) be made publicly available in accordance with the Rules; and

(e) if a greenfields price protection determination is made, specify—

(i) the date the determination takes effect; and

(ii) the operative period for the determination.

(4) For subsection (3)(e)(ii), the operative period for a greenfields price protection determination—

(a) is the period during which the prices and non-price terms and conditions specified in the determination will be made available to prospective users; but

(b) cannot be longer than the operative period for the greenfields incentive determination relating to the pipeline.

111—Effect of greenfields price protection determination

(1) A greenfields price protection determination—

(a) takes effect on and from the date specified in the determination; and

(b) continues in operation for the operative period for the determination mentioned in section 110(4).

(2) A greenfields price protection determination ends if the greenfields incentive determination to which the greenfields price protection determination relates ceases to apply to the pipeline.

Part 4—Principles governing the making of particular determinations

112—Principles governing the making of particular determinations

(1) This section sets out principles that apply for the making of the following determinations (each a relevant determination ) by the AER—

(a) a scheme pipeline determination under Part 1 Division 1;

(b) a scheme pipeline revocation determination under Part 2;

(2) In deciding whether to make a relevant determination, the AER must consider the effect of regulating the pipeline, to which the determination would apply, as a scheme pipeline or non-scheme pipeline on—

(a) the promotion of access to pipeline services; and

(b) the costs that are likely to be incurred by an efficient service provider; and

(d) the likely costs of end users.

(3) In doing so the AER—

(a) must have regard to the national gas objective; and

(b) must have regard to—

(i) the form of regulation factors; and

(ii) for a greenfields incentive determination—the extent to which the form of regulation factors or competition to develop the pipeline (whether formal or informal) between 2 or more unrelated prospective service providers will, or is likely to, pose an effective constraint on the exercise of market power in respect of services provided by means of the pipeline for the period the determination is in operation; and

Example—

Competition between prospective service providers could involve the service providers competing on the basis of—

(a) different pipeline routes; or

(b) an expansion of an existing pipeline and the development of a new pipeline.

(c) may have regard to any other matter it considers relevant, including, for example, any information it obtains in the course of performing its functions.

Example for paragraph (c)—

The AER may have regard to information contained in a report made by a mediator in relation to an access dispute.

(4) For subsection (3)(b)(ii), prospective service providers are unrelated if the service providers—

(a) are not related bodies corporate of each other; and

(b) do not include a related body corporate of the applicant for the greenfields incentive determination.

Part 5—Access arrangements for scheme pipelines

Division 1—Submissions generally

113—Submission of access arrangement or revisions to applicable access arrangement

A scheme pipeline service provider must submit to the AER, for approval by the AER under the Rules, an access arrangement or revisions to an applicable access arrangement, in relation to the pipeline services the service 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.

Division 2—Provisions relating to applicable access arrangements

114—Protection of certain pre-existing contractual rights

(1) An applicable access arrangement must not have the effect of depriving a person of a relevant protected contractual right.

(2) In this section—

relevant exclusivity right means an express contractual right that arose on or after 30 March 1995 that—

(a) prevents a service provider supplying pipeline services to persons who are not parties to the contract; or

(b) limits or controls a service provider's ability to supply pipeline services to persons who are not parties to the contract,

but does not include a user's contractual right to obtain a certain amount of pipeline services;

relevant protected contractual right means—

(a) in the case of an applicable access arrangement approved under an applicable access arrangement decision—a right under a contract (other than a relevant exclusivity right) in force immediately before that access arrangement was submitted for approval under this Law; or

(b) in the case of an applicable access arrangement made under an applicable access arrangement decision because—

(i) an access arrangement was not submitted for approval as required under section 113—a right under a contract (other than a relevant exclusivity right) in force immediately before the date on which an access arrangement was required to be submitted for approval; or

(ii) an access arrangement was not approved under an applicable access arrangement decision—a right under a contract (other than a relevant exclusivity right) in force immediately before the date on which that access arrangement was submitted for approval.

115—Service provider may enter into agreement for access different from applicable access arrangement

Subject to sections 83C and 135, nothing in this Law is to be taken as preventing a service provider from entering into an agreement with a user or a prospective user about access to a pipeline service provided by means of a scheme pipeline that is different from an applicable access arrangement that applies to that pipeline service.

116—Applicable access arrangements continue to apply regardless of who provides pipeline service

An applicable access arrangement applies to a pipeline service provided, or to be provided, by means of a scheme pipeline regardless of who provides that pipeline service.

Part 6—Classification and reclassification of pipelines

Division 1—Classification of pipelines

117—Application for classification of pipeline

(1) This section applies if a pipeline is not classified as a distribution or transmission pipeline under a licence or authorisation granted in relation to the pipeline under jurisdictional gas legislation.

(2) Within 20 business days after the commissioning of the pipeline, the service provider for the pipeline must apply to the AER for the pipeline to be classified as a distribution pipeline or transmission pipeline.

(3) An application for a classification decision must—

(a) be made in accordance with the Rules; and

(b) contain the information required by the Rules; and

(d) be dealt with in accordance with the Rules.

Division 2—Reclassification of pipelines

118—Reclassification of pipelines

(1) The AER may, on its own initiative or on the application of a service provider, make a decision for a pipeline to be reclassified as—

(a) if the pipeline is a transmission pipeline—a distribution pipeline; or

(b) if the pipeline is a distribution pipeline—a transmission pipeline.

(2) An application for a reclassification decision must—

(a) be made in accordance with the Rules; and

(b) contain the information required by the Rules; and

(d) be dealt with in accordance with the Rules.

Division 3—Provisions relating to classification and reclassification decisions

119—Requirements for making classification or reclassification decisions

(1) In making a classification decision or reclassification decision, the AER must have regard to—

(a) the national gas objective; and

(b) the pipeline classification criterion.

(2) A classification decision or reclassification decision must—

(a) be made in accordance with this Law and the Rules; and

(b) contain the information required by the Rules; and

(d) be made publicly available in accordance with the Rules.

120—Effect of classification decision or reclassification decision

On the making of a classification decision or reclassification decision, a pipeline is—

(a) if the pipeline is classified or reclassified as a distribution pipeline—a distribution pipeline; or

(b) if the pipeline is classified or reclassified as a transmission pipeline—a transmission pipeline.

Part 7—AER reviews into designated pipelines

121—AER reviews

(1) The MCE may request the AER to conduct a review into, and report to it as to, whether a pipeline should continue to be a designated pipeline.

(2) A service provider that provides pipeline services by means of a designated pipeline may request the AER to conduct a review into, and report to the MCE as to, whether that pipeline should continue to be a designated pipeline.

(3) A request under subsection (1) or (2) must be in writing.

(4) On receiving a request under this section, the AER must conduct a review as to whether the pipeline the subject of the request should continue to be a designated pipeline.

(5) In conducting a review under this section, the AER must—

(a) have regard to—

(i) the national gas objective; and

(ii) whether there has been a material change in competition in a market served by the designated pipeline; and

(b) consult, in accordance with the Rules, with the public.

(6) On the completion of a review under this section, the AER must prepare a report and—

(a) give the report to the MCE; and

(b) publish the report on its website.

(7) The AER must also give a copy of the report to the service provider that has requested the review.

Chapter 4—General requirements for provision of pipeline services

Part A1—Preliminary

130—Application of this Chapter

(1) This Chapter applies in relation to scheme pipelines and non-scheme pipelines.

(2) Also, this Chapter, or a provision of this Chapter, applies to a person other than a service provider as if a reference in the Chapter or provision to a service provider were a reference to the person—

(a) if—

(i) this Chapter, or the provision, is prescribed by the Regulations for the purposes of this subsection; and

(ii) the person—

(A) is prescribed by the Regulations for the purposes of this subsection; or

(B) is a member of a class of persons prescribed by the Regulations for the purposes of this subsection; and

(b) subject to any modifications prescribed by the Regulations for the purposes of this subsection.

Part 1—General duties for provision of pipeline services by pipelines

131—Service provider must be legal entity of a specified kind to provide pipeline services

A service provider must not provide a pipeline service by means of a pipeline unless the service provider is—

(a) a legal entity registered under the Corporations Act 2001 of the Commonwealth; or

(b) a foreign company; or

(c) a corporation established by or under a law of this jurisdiction or another participating jurisdiction, whether or not that corporation has been established for a public purpose; or

(d) the Crown in right of this jurisdiction or another participating jurisdiction; or

(e) a person referred to in paragraph (a) to (d) and that person provides a pipeline service by means of a pipeline together with another person referred to in paragraph (a) to (d).

133—Preventing or hindering access

(1) A person who is—

(a) a 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 pipeline; or

(ii) as a result of an access determination is entitled to a pipeline service provided by means of a pipeline; or

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 pipeline.

(2) For the purposes of subsection (1), a person is deemed to engage in conduct for a particular purpose if—

(a) the conduct is or was engaged in for that purpose or for a purpose that includes, or included, that purpose; and

(b) that purpose is or was a substantial purpose.

(3) A person may be taken to have engaged in conduct for the purpose referred to in subsection (1) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or of any other person or from other relevant circumstances.

(4) Subsection (3) does not limit the manner in which the purpose of a person may be established for the purpose of subsection (1).

(5) In this section—

(a) a reference to engaging in conduct is a reference to doing or refusing to do any act, including the following—

(i) refusing to supply a pipeline service;

(ii) without reasonable grounds, limiting or disrupting a pipeline service;

(iii) making, or giving effect to a provision of a contract or arrangement, arriving at, or giving effect to, a provision of an understanding, or requiring the giving of, or giving, a covenant; and

(b) a reference to refusing to do an act includes a reference to—

(i) refraining (otherwise than inadvertently) from doing that act; or

(ii) making it known that that act will not be done.

(6) Subsection (1) does not apply to conduct engaged in in accordance with an agreement, if the agreement was in force on 30 March 1995.

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.

135—Service provider must comply with queuing requirements

A service provider must comply with the queuing requirements of an applicable access arrangement or the Rules.

136—Compliance with pipeline interconnection principles

Subject to section 91BF, a service provider must comply with the principles relating to the interconnection of pipelines and facilities (the pipeline interconnection principles ) specified in the Rules.

136A—Prohibition against increasing charges to subsidise particular development

(1) This section applies to a service provider for a transmission pipeline, other than a pipeline within a declared transmission system.

(2) The service provider must not increase a charge for a pipeline service payable by an existing user to the service provider to subsidise the development of an extension, or expansion of the capacity, of the pipeline.

(3) However, subsection (2) does not apply to a service provider if the service provider is exempt from complying with subsection (2) under the Rules.

(4) Nothing in this section prevents a service provider from charging an existing user of the service provider for pipeline services provided by means of an extension, or expansion of the capacity, of a pipeline.

136B—Prohibition on bundling of services

A service provider must not make it a condition of the provision of a particular pipeline service to a prospective user that the prospective user accept another service from the service provider unless the bundling of the services is reasonably necessary.

136C—Service providers must publish prescribed transparency information

(1) A service provider must—

(a) publish the information relating to pipelines and pipeline services specified in the Rules made for the purposes of this paragraph (the prescribed transparency information ); and

(b) ensure the prescribed transparency information is published in accordance with the Rules.

(2) However, subsection (1) does not apply to a service provider if the service provider is exempt from complying with subsection (1) under the Rules.

Part 2—Structural and operational separation requirements (ring fencing)

Division 1—Interpretation

137—Definitions

In this Part—

additional ring fencing requirement has the meaning given by section 143(1);

marketing staff has the meaning given by section 138;

related business means the following:

(a) the provision of a blend processing service;

(b) the business of producing primary gas, processable gas or biogas;

(c) the business of purchasing or selling covered gas, processable gas or biogas, but does not include purchasing or selling covered gas, processable gas or biogas to the extent necessary—

(i) for the safe and reliable operation of a pipeline; or

(ii) to enable a service provider to provide balancing services in connection with a pipeline.

138—Meaning of marketing staff

(1) A person is marketing staff of—

(a) a service provider, if the person—

(i) is an officer, employee, consultant or independent contractor or agent of the 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);

(b) an associate of a service provider, if the person—

(i) is an officer, employee, consultant or independent contractor or agent of the associate; and

(ii) is directly involved in the sale, marketing or advertising of pipeline services (whether or not the person is also involved in other activities).

(2) A person is not marketing staff of a service provider, or an associate of a service provider, if—

(a) the person's function or role (as an officer, employee, consultant or independent contractor or agent of a service provider, or an associate of a service provider) is only to provide technical, administrative, legal and accounting services to that provider or associate; or

(b) the sale, marketing or advertising of pipeline services is only an incidental part of the person's function or role (as an officer, employee, consultant or independent contractor or agent of a service provider, or an associate of a service provider).

Example—

A person in the position of general manager of marketing of a service provider or an associate of a service provider would be marketing staff whereas a person in the position of chief executive officer, or chief financial officer, of a service provider or an associate of a service provider would not be marketing staff.

Division 2—Minimum ring fencing requirements

139—Carrying on of related businesses prohibited

A service provider must not carry on a related business.

140—Marketing staff and the taking part in related businesses

(1) A service provider must ensure that none of its marketing staff are officers, employees, consultants, independent contractors or agents of an associate of the service provider that takes part in a related business.

(2) A service provider must ensure that none of its officers, employees, consultants, independent contractors or agents are marketing staff of an associate of the service provider that takes part in a related business.

141—Accounts that must be prepared, maintained and kept

A service provider must prepare, maintain and keep—

(a) separate accounts in respect of pipeline services provided by means of every pipeline owned, operated or controlled by the service provider; and

(b) a consolidated set of accounts in respect of the whole of the business of the service provider.

Division 3—Additional ring fencing requirements

142—Division does not limit operation of Division 2

This Division does not limit Division 2.

143—AER ring fencing determinations

(1) Subject to this Division and subject to and in accordance with the Rules, the AER may make a determination requiring a service provider or associate of a service provider named in the determination to do, or refrain from doing, a thing specified in the determination (an additional ring fencing requirement ).

(2) In specifying an additional ring fencing requirement the AER must have regard to the following principles:

(a) in the case where 1 part of the business of a service provider ( business unit A ) is providing pipeline services to another part of the business of the service provider ( business unit B ), the service provider must ensure that business unit A provides the pipeline services to business unit B as if business unit B were a separate unrelated entity;

(b) in the case where a service provider is providing pipeline services to an associate of the service provider, the service provider must ensure that those services are provided as if the associate of the service provider were a separate unrelated entity;

(c) users and prospective users should have sufficient information in order to understand whether a service provider is complying with paragraph (a) or (b).

(3) The AER must—

(a) notify, in writing, the service provider or associate named in the AER ring fencing determination of the making of that determination; and

(b) give the service provider or associate a copy of the AER ring fencing determination.

(4) An AER ring fencing determination must specify the date on and after which the service provider or associate of a 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 service provider or associate of a service provider is given a copy of the AER ring fencing determination.

(6) A service provider or associate of a service provider must comply with every additional ring fencing requirement specified in an AER ring fencing determination on and after the notified compliance date.

144—AER to have regard to likely compliance costs of additional ring fencing requirements

In making an AER ring fencing determination the AER must have regard to the likely costs that may be incurred by, as the case requires—

(a) an efficient service provider; or

(b) an efficient associate of a 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 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 service provider to—

(a) ensure that its business and business activities are conducted, structured and arranged in the particular manner specified;

Example 1—

An AER ring fencing determination may require the service provider to ensure that persons employed or engaged by the service provider in relation to the provision of pipeline services are not also associates, or employed by associates, of the 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 service provider to put in place electronic, physical and procedural security measures in respect of the offices and computer systems of the service provider, and of the offices and computer systems of its associates, so that certain specified employees or persons engaged by the service provider do not have access to certain specified information.

(b) in a specified manner, disclose, to the AER and to the public, specified information in a specified manner about its business operations, structure and arrangements, and its business activities.

Division 4—Associate contracts

147—Service provider must not enter into or give effect to associate contracts that have anti-competitive effect

A 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

the purpose, or would have or be likely to have the effect, of substantially lessening competition in a market for covered 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

(1) A 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

inconsistent with the competitive parity rule unless—

(d) that associate contract is an approved associated contract; or

(e) that provision is contained in an approved associate contract.

(2) For the purposes of subsection (1), and any Rules made for the purposes of that subsection, the competitive parity rule is the rule that a service provider must ensure that any pipeline services that the service provider provides to an associate of the service provider are provided to that associate as if that associate were a separate unrelated entity.

Division 5—Exemptions from particular requirements

148AA—Exemptions from section 147(c)

(1) Section 147(c) does not prevent a service provider from giving effect to a provision of an associate contract if the contract is for an associate pipeline service, and—

(a) if the associate pipeline service relates to 1 or more types of relevant covered gas—the provision was entered into before the commencement of the Statutes Amendment (National Energy Laws) (Other Gases) Act 2023 ; or

(b) if the associate pipeline service relates to 1 or more types of prescribed primary gas—the provision was entered into before the gas became a prescribed primary gas; or

(c) if the associate pipeline service relates to a blend of prescribed primary gases—the provision was entered into before any of the gases became a prescribed primary gas.

(2) In this section—

prescribed primary gas means a gas—

(a) prescribed by the Regulations for the purpose of paragraph (e) of the definition of primary gas ; or

(b) prescribed by a local regulation for the purpose of paragraph (f) of the definition of primary gas ;

relevant covered gas means the following:

(a) biomethane;

(b) hydrogen;

(d) a gas blend.

148A—Exemptions from particular requirements

(1) The Rules may provide for exemptions from the requirements under section 139, 140, 141, 147 or 148.

(2) An exemption may be given subject to conditions.

(3) Without limiting the conditions that may be imposed under subsection (2), an exemption may be given subject to conditions requiring a service provider to—

(a) ensure that its business and business activities are conducted, structured and arranged in the particular manner specified in the exemption; or

(b) disclose, in the manner specified in the exemption, to the AER and to the public, specified information about its business activities, operations, structure and arrangements.

Part 3—Negotiation of access

148B—Definition

In this Part—

relevant pipeline service means a pipeline service provided, or to be provided, by means of a pipeline and includes a pipeline service provided, or to be provided, by an extension to, or expansion of the capacity of, a pipeline.

148C—Access proposals

A service provider must comply with the Rules relating to access to a relevant pipeline service made for the purposes of this section.

148D—Duty to negotiate in good faith

A user or prospective user seeking access to a relevant pipeline service and the service provider for the service must negotiate in good faith with each other about—

(a) whether access can be granted to the user or prospective user; and

(b) if access is to be granted—the terms and conditions for the provision of access to the user or prospective user.

Part 4—AER reviews about application of this Chapter

148E—AER reviews about application of this Chapter

(1) The MCE may request the AER to conduct a review into, and report to it as to, whether this Chapter, or a provision of this Chapter, should apply to any person or class of persons to whom the Chapter or provision does not currently apply.

(2) A request under subsection (1) must be in writing.

(3) On receiving a request under this section, the AER must conduct the review.

(4) In conducting a review under this section, the AER must—

(a) have regard to—

(i) the national gas objective; and

(ii) the effect the application of this Chapter, or a provision of this Chapter, to another person or class of persons would have on—

(A) the promotion of access to pipeline services and any other benefits that may be associated with the application; and

(B) the costs that are likely to be incurred by the person or class of persons if they were operating efficiently; and

(b) consult, in accordance with the Rules, with the public.

(5) 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.

Chapter 5—Access disputes

Part 1—Interpretation and application

149—Definitions

In this Chapter—

access dispute pipeline , in relation to an access dispute, means the pipeline the subject of the dispute;

dispute hearing means a hearing conducted by the relevant adjudicator for an access dispute for the purpose of making an access determination in relation to the dispute;

party , in relation to an access dispute, has the meaning given by section 154.

150—Application of this Chapter to disputes arising under the Rules

(1) The provisions of this Chapter applicable to the determination of an access dispute apply to the determination of any dispute arising under any provision of the Rules specified in the Rules for the purposes of this section.

(2) This section applies subject to any modification of the provisions of this Chapter specified in the Rules.

151—Chapter does not limit how disputes about access may be raised or dealt with

This Chapter does not limit how a dispute about access to a pipeline service may be raised or dealt with.

Part 2—Notice of access dispute and other provisions

Division 1—Notice of access dispute

152—Notice of access dispute

(1) This section applies if there is an access dispute between a user or prospective user and a service provider.

(2) The user, prospective user or service provider may give a notice in writing to the following entity that the access dispute exists—

(a) for a scheme pipeline access dispute—the dispute resolution body;

(b) for a non-scheme pipeline access dispute—the AER.

(3) A notice given under subsection (2) must—

(a) include information about—

(i) the matters (if any) on which agreement has been reached; and

(ii) the matters that are in dispute; and

(iii) any other matter specified by the Rules; and

(b) be accompanied by—

(i) if an access dispute is a scheme pipeline access dispute—the fee prescribed by the Regulations (if any); or

(ii) if an access dispute is a non-scheme pipeline access dispute—the fee set by the AER from time to time and specified on the AER's website; and

(c) be given to any other party to any negotiations that gave rise to the dispute as soon as practicable after it is given to the dispute resolution body or AER; and

(d) be dealt with in accordance with the Rules.

(4) The user, prospective user, or service provider may not give a notice under subsection (2) if the dispute relates to a matter excluded from the operation of this Chapter by the Rules.

153—Withdrawal of notice

Subject to the Rules, a notice given under section 152 may be withdrawn—

(a) in accordance with the Rules; and

(b) at any time before an access determination is made in relation to the dispute.

Division 2—Parties to an access dispute

154—Parties to an access dispute

(1) The parties to an access dispute are—

(a) the parties to any negotiations that gave rise to the access dispute; and

(b) if the dispute resolution body or AER (as the case requires) is of the opinion that the resolution of the access dispute may involve requiring another person to do something and that it is appropriate that the person be joined as a party—that other person; and

(c) if a small shipper is a party and has elected, in accordance with the Rules, for a user association to be joined as a party—the user association; and

(d) if the access dispute is a scheme pipeline access dispute—any other person who applies in writing, in accordance with the Rules, to be made a party and is accepted by the dispute resolution body as having a sufficient interest.

(2) In this section—

user association means an association or body, whether incorporated or not—

(a) the members of which include more than 1 user or prospective user; and

(b) that represents and promotes the interests of those members in relation to the provision of pipeline services.

Part 3—Alternative dispute resolution for access disputes

Division 1—Alternative dispute resolution for scheme pipeline access disputes

155—Dispute resolution body may require parties to engage in alternative dispute resolution

(1) This section applies if the dispute resolution body receives a notice of a scheme pipeline access dispute under section 152.

(2) The dispute resolution body may require the parties to the dispute, in accordance with the Rules, to mediate, conciliate or engage in another alternative dispute resolution process for the purpose of resolving the dispute.

(3) A party must comply with a requirement under subsection (2).

Division 2—Mediation of access disputes involving small shippers

156—Small shipper may elect to have access dispute mediated

A small shipper who is a party to an access dispute may, in accordance with the Rules, elect for the dispute to be resolved by mediation.

157—Appointment of mediator

(1) This section applies if a small shipper makes an election under section 156.

(2) The parties to the access dispute may agree to appoint, in accordance with the Rules, a mediator to resolve the dispute.

(3) If the parties do not agree to the appointment of a mediator within a period specified by the Rules, the AER must—

(a) consult with the parties to the dispute about the appointment of a mediator; and

(b) after consultation, appoint a mediator the AER considers appropriate for the dispute.

(4) A mediator must be a person who—

(a) is independent of the parties to the dispute; and

(b) is properly qualified to act in the resolution of the dispute; and

(5) If a mediator does not, for any reason, complete a mediation of a dispute, the parties to the dispute may agree to appoint, in accordance with the Rules, an alternative mediator to resolve the dispute.

(6) However, if the parties do not agree to the appointment of an alternative mediator within a period specified by the Rules, the AER must appoint another mediator in the way set out under subsection (3).

(7) If an alternative mediator does not, for any reason, complete a mediation of the dispute, the dispute must be determined by the relevant adjudicator for the dispute under Part 5.

158—Party's lawyer may be present at mediation

A party to a mediation may have a lawyer present at the mediation.

Part 4—Arbitration of non-scheme pipeline access disputes

159—Reference of non-scheme pipeline access dispute to arbitration

(1) This section applies if the AER receives a notice of a non-scheme pipeline access dispute under section 152.

(2) The AER must refer the dispute to arbitration.

(3) The AER must give notice of the referral of an access dispute to arbitration to—

(a) the parties to the access dispute; and

(b) if relevant, any other person who will be a party to the access dispute.

(4) However, this section applies subject to section 156.

160—Appointment of arbitrator

(1) This section applies if a non-scheme pipeline access dispute is referred to arbitration under section 159.

(2) The parties to the access dispute may agree to appoint, in accordance with the Rules, an arbitrator to resolve the dispute.

(3) If the parties do not agree to the appointment of an arbitrator within a period specified by the Rules, the AER must—

(a) consult with the parties to the dispute about the appointment of an arbitrator; and

(b) after consultation, appoint an arbitrator the AER considers appropriate for the dispute.

(4) An arbitrator must be a person who—

(a) is independent of the parties to the dispute; and

(b) is properly qualified to act in the resolution of the dispute; and

(5) If an arbitrator does not, for any reason, complete an arbitration of a dispute, the parties to the dispute may agree to appoint, in accordance with the Rules, an alternative arbitrator to resolve the dispute.

(6) However, if the parties do not agree to the appointment of an alternative arbitrator within a period specified by the Rules, the AER must appoint another arbitrator in the way set out under subsection (3).

Part 5—Access determination

Division 1—Determination of access disputes generally

161—Determination of access dispute

(1) Unless the relevant adjudicator for an access dispute terminates the access dispute under Part 7, the relevant adjudicator must make a determination on access by the user or prospective user (as the case requires) (including a determination that does not require a service provider to provide access to any pipeline services).

(2) In making an access determination, the relevant adjudicator must comply with this Chapter and the Rules.

(3) An access determination may deal with any matter relating to access by the user or prospective user to the pipeline services specified by the Rules for the purposes of this subsection.

(4) The Rules may also, in connection with the making of an access determination, contain provisions for or with respect to such things as—

(a) the form of any determination; and

(b) the content of any determination, including as to the giving of reasons; and

(d) the process for making a determination; and

(e) when a determination takes effect; and

(f) the giving of notice of the making of a determination; and

(g) the publication of an access determination and other information related to the determination, including a statement of reasons for making the access determination, relevant financial calculations and any reports.

162—Matters to be taken into account for access disputes

In making an access determination, the relevant adjudicator for an access dispute the subject of the determination must take into account any matters specified in the Rules for the purposes of this section.

163—Restrictions on access determinations

(1) An access determination must not have any of the following effects:

(a) preventing a user from obtaining a sufficient amount of a pipeline service under a contract or previous access determination to be able to meet the user's reasonably anticipated requirements, measured at the time the access dispute was notified;

(b) preventing a user or prospective user from obtaining, by the exercise of a pre-notification right, a sufficient amount of a pipeline service to be able to meet the user's or prospective user's actual requirements;

(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 152;

relevant exclusivity right means an express contractual right that arose on or after 30 March 1995 that—

(a) prevents a service provider supplying pipeline services to persons who are not parties to the contract; or

(b) limits or controls a service provider's ability to supply pipeline services to persons who are not parties to the contract,

but does not include a user's contractual right to obtain a certain amount of pipeline services;

relevant protected contractual right means a right under a contract (other than a relevant exclusivity right) that was in force immediately before the notification of an access dispute under section 152.

164—Access determinations and part contributions of capital to fund installations or the construction of new facilities

(1) In making an access determination, the relevant adjudicator for an access dispute the subject of the determination may take into account past contributions of capital to fund installations or the construction of new facilities for the access dispute pipeline.

(2) Without limiting section 74, the Rules may—

(a) specify the matters that the relevant adjudicator must address in making that access determination; and

(b) specify the content of that access determination.

Division 2—Particular provisions relating to scheme pipeline access disputes

165—Access determination must give effect to applicable access arrangement

(1) This section applies subject to sections 161, 164 and 166 and any Rules made for the purposes of this Part.

(2) In making an access determination for a scheme pipeline access dispute, the dispute resolution body must give effect to the applicable access arrangement (the relevant 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.

(3) Subsection (2) applies even though the relevant applicable access arrangement may not have been in force when notice of the access dispute was given.

166—Rules may allow determination that varies applicable access arrangement for installation of a new facility

(1) This section applies in relation to an access determination for a scheme pipeline access dispute that requires—

(a) a service provider to install or construct a new facility to expand the capacity of the access dispute pipeline; and

(b) the user or prospective user who is a party to the access dispute to contribute some or all of the capital to fund the installation or construction of the new facility.

(2) Without limiting section 74, the Rules may—

(a) confer a function or power on the dispute resolution body, when making the access determination, to vary the applicable access arrangement; and

(b) specify the matters that the dispute resolution body must address in making the access determination; and

(d) specify the content of the access determination.

Part 6—Variation of access determinations

167—Variation of access determination—scheme pipeline disputes

(1) This section applies in relation to an access determination for a scheme pipeline access dispute.

(2) The dispute resolution body may vary the access determination on the application of any party to the determination, but 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 152.

(3) Section 163 applies to a variation under this section as if—

(a) an access dispute arising out of the access determination had been notified when the application was made to the dispute resolution body for the variation of the determination; and

(b) the variation were the making of an access determination in the terms of the varied determination.

168—Variation of access determination—non-scheme pipeline disputes

(1) This section applies in relation to an access determination for a non-scheme pipeline access dispute.

(2) The access determination may be varied by agreement between all parties to the access determination.

(3) The Rules may also contain provisions with respect to seeking variations to an access determination.

(4) The provisions of this Chapter about the arbitration of an access dispute apply with necessary modifications to a proposal under the Rules to vary an access determination or to a dispute arising out of such a proposal.

Part 7—Termination of access dispute

169—Relevant adjudicator may terminate access dispute in particular circumstances

(1) The relevant adjudicator for an access dispute may at any time terminate the access dispute (without making an access determination) if—

(a) the notice of dispute given under section 152 is withdrawn; or

(b) the relevant adjudicator considers that—

(i) 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; or

(ii) the notice of the access dispute was vexatious; or

(iii) the subject matter of the dispute is trivial, misconceived or lacking in substance; or

(iv) the party who notified the access dispute did not negotiate in good faith; or

(v) a specified dispute termination circumstance has occurred; or

(vi) there is some other good reason why the dispute should be terminated.

(2) Subject to section 163, the relevant adjudicator for an access dispute may also terminate the access dispute (without making an access determination) if the relevant adjudicator considers that the aspect of access about which there is a dispute is expressly or impliedly dealt with under a contract between the user or prospective user and the service provider.

(3) Furthermore, a relevant adjudicator who is an arbitrator for a non-scheme pipeline access dispute may terminate an arbitration (without making an access determination) if the arbitrator considers that the user or prospective user seeking access is not engaging in the arbitration in good faith.

(4) In this section—

specified dispute termination circumstance means a circumstance specified by the Rules as being a circumstance, the occurrence of which, entitles the relevant adjudicator for an access dispute to terminate the access dispute (without making an access determination).

Part 8—Compliance with access determinations

170—Compliance with access determination

(1) Subject to the Rules and subsection (2)—

(a) a party to a scheme pipeline access dispute in respect of which an access determination is made must comply with the access determination; and

(b) an access determination in relation to a non-scheme pipeline is enforceable as if it were a contract between the parties to the access determination.

Note—

See also Chapter 8 Part 6 in relation to the enforcement of access determinations.

(2) A user or prospective user of a pipeline service to which an access determination relates is not bound to seek access to the service.

(3) However, if a user or prospective user of a pipeline service seeks or obtains access, the user or prospective user is bound by any relevant provision of the access determination.

171—Subsequent service providers bound by access determinations

(1) An access determination applies to every subsequent service provider as if that subsequent service provider were a party to the access dispute in respect of which the access determination was made.

(2) In this section—

subsequent service provider means a service provider (other than the service provider to whom the access determination applies) who provides pipeline services—

(a) the subject of the access dispute; and

(b) in respect of which the access determination was made.

Part 9—Access dispute hearing procedure

172—Part applies subject to any modifications prescribed by the Regulations

This Part applies subject to any modifications prescribed by the Regulations.

173—Fast track resolution process—scheme pipeline access disputes

A scheme pipeline access dispute may be dealt with in accordance with a fast track resolution process under the Rules in the circumstances provided for in the Rules.

174—Hearing to be in private

(1) A dispute hearing is to be in private.

(2) However, if the parties agree, a dispute hearing or part of a dispute hearing may be conducted in public.

(3) The relevant adjudicator for an access dispute the subject of the dispute hearing 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 relevant adjudicator must have regard to the wishes of the parties and the need for commercial confidentiality.

175—Right to representation

In a dispute hearing, a party may appear in person or be represented by another person.

176—Procedure of relevant adjudicator

(1) In a dispute hearing the relevant adjudicator for an access dispute—

(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

(2) The relevant adjudicator may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties in the dispute hearing, and may require that the cases be presented within those periods.

(3) The relevant adjudicator may require evidence or argument to be presented in writing, and may decide the matters on which the relevant adjudicator will hear oral evidence or argument.

(4) The relevant adjudicator may determine that a dispute hearing is to be conducted by—

(a) telephone; or

(b) closed circuit television; or

(5) The Rules may make further provision about the procedure for the conduct of dispute hearings.

177—Particular powers of relevant adjudicator in a hearing

(1) The relevant adjudicator for an access dispute may do any of the following things for the purpose of determining the 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;

(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 relevant adjudicator may make an interim determination.

178—Role of a dispute resolution expert

(1) This section applies if, for the purpose of determining an access dispute, a matter is referred to an independent expert under section 177(1)(e).

(2) The expert is to be appointed on terms and conditions determined by the relevant adjudicator for the access dispute.

(3) The expert must report to the relevant adjudicator in accordance with the requirements of the relevant adjudicator.

(4) The independent expert must—

(a) have knowledge and experience that is relevant to the matter; and

(b) not have any material direct or indirect interest or association that compromises, or is likely to compromise, the impartiality of the expert; and

(c) disclose to the relevant adjudicator any material or indirect interest or association that compromises, or would reasonably be seen to compromise, the impartiality of the expert.

179—Disclosure of information

(1) The relevant adjudicator for an access dispute 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 the access dispute unless the person has the relevant adjudicator's permission.

(2) A person must not, without reasonable excuse, refuse or fail to comply with an order under subsection (1).

Maximum penalty:

(a) in the case of a natural person—$3 400;

(b) in the case of a body corporate—$17 000.

Note—

180—Power to take evidence on oath or affirmation

(1) The relevant adjudicator for an access dispute may take evidence on oath or affirmation and for that purpose the relevant adjudicator may administer an oath or affirmation.

(2) The relevant adjudicator may summon a person to appear before the relevant adjudicator to—

(a) give evidence; or

(b) produce such documents (if any) as are referred to in the summons; or

(3) The powers in this section may be exercised only for the purposes of hearing and determining the access dispute.

181—Failing to attend as a witness

A person who is served, as prescribed by the Regulations, with a summons to appear as a witness at a dispute hearing before the relevant adjudicator for an access dispute must not, without reasonable excuse—

(a) fail to attend as required by the summons; or

(b) fail to appear and report from day to day unless excused, or released from further attendance, by the relevant adjudicator.

Maximum penalty: $6 300.

Note—

182—Failing to answer questions etc

(1) A person appearing at a dispute hearing as a witness before the relevant adjudicator for an access dispute the subject of the dispute hearing must not, without reasonable excuse—

(a) refuse or fail to be sworn or to make an affirmation; or

(b) refuse or fail to answer a question that the person is required to answer by the relevant adjudicator; or

(c) refuse or fail to produce a document that the person is required to produce by a summons under this Chapter served on the person as prescribed by the Regulations.

Maximum penalty: $6 300.

Note—

(2) It is a reasonable excuse for the purposes of subsection (1) for a natural person to refuse or fail to answer a question or produce a document on the ground that the answer or the production of the document might—

(a) tend to incriminate the person; or

(b) expose the person to a criminal penalty.

(3) Subsection (2) does not limit what is a reasonable excuse for the purposes of subsection (1).

183—Intimidation etc

A person must not—

(a) threaten, intimidate or coerce another person; or

(b) cause or procure damage, loss or disadvantage to another person,

because that other person—

(d) proposes to appear, or has appeared, as a witness before the relevant adjudicator for a dispute hearing.

Maximum penalty: $6 300.

Note—

184—Particular powers of a relevant adjudicator in a hearing

(1) A party in a dispute hearing may—

(a) inform the relevant adjudicator for an access dispute the subject of the dispute hearing that, in the party's opinion, a specified part of a document contains confidential information (the relevant part of the document ); and

(b) request the relevant adjudicator not to give a copy of the relevant part of the document to another party.

(2) On receiving a request, the relevant adjudicator must—

(a) inform the other party or parties that the request has been made and of the general nature of the matters to which the relevant part of the document relates; and

(b) ask the other party or parties whether there is any objection to the relevant adjudicator complying with the request.

(3) If there is an objection to the relevant adjudicator complying with the request, the party objecting may inform the relevant adjudicator of the objection and of the reasons for it.

(4) The relevant adjudicator must consider—

(a) a request; and

(b) any objection; and

(5) After considering the matters mentioned in subsection (4), the relevant adjudicator may decide—

(a) not to give the other party or parties a copy of any part of the relevant part of the document that the relevant adjudicator thinks should not be given; or

(b) to give the other party or another specified party a copy of the whole, or part, of the relevant part of the document subject to—

(i) a condition that the party give an undertaking not to disclose the information contained in the relevant part of the document to another person except to the extent specified by the relevant adjudicator; and

(ii) any other condition the relevant adjudicator considers appropriate.

Part 10—Costs

Division 1—Scheme pipeline access disputes

185—Costs—scheme pipeline access disputes

(1) Each party to a scheme pipeline access dispute is to bear its own costs in a dispute hearing except to the extent that an order under this section specifies otherwise.

(2) At any time, the dispute resolution body may order that a party (other than a small shipper) pay all or a specified part of the costs of another party in a dispute hearing.

(3) The dispute resolution body may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to—

(a) whether a party has conducted the dispute hearing in a way that unnecessarily disadvantaged another party by conduct such as—

(i) failing to comply with an order or direction of the dispute resolution body without reasonable excuse; or

(ii) failing to comply with this Law, the Regulations or the Rules; or

(iii) asking for an adjournment as a result of subparagraph (i) or (ii); or

(iv) causing an adjournment; or

(v) attempting to deceive another party or the dispute resolution body; or

(vi) vexatiously conducting an access dispute; and

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the dispute hearing; and

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law; and

(d) the nature and complexity of the access dispute; and

(e) any other matter the dispute resolution body considers relevant.

(4) A party to whom an order made under subsection (2) is directed must comply with the order.

(5) If the dispute resolution body considers that the representative of a party, rather than the party, is responsible for conduct described in subsection (3)(a) or (b), the dispute resolution body may order that the representative in the representative's own capacity compensate another party for any costs incurred unnecessarily.

(6) Before making an order under subsection (5), the dispute resolution body must give the representative a reasonable opportunity to be heard.

(7) A representative of a party to whom an order made under subsection (5) is directed must comply with the order.

(8) If the dispute resolution body makes an order for costs before the end of an access dispute, the dispute resolution body may require that the order be complied with before it continues with the proceeding.

(9) If the dispute resolution body makes an order for costs, the dispute resolution body may fix the amount of costs itself.

(10) This section applies to costs incurred by the parties in a dispute hearing even if the notice of the access dispute to which the dispute hearing relates is withdrawn.

186—Outstanding costs are a debt due to party awarded the costs—scheme pipelines

Costs that are payable under section 185(4) or (7)—

(a) are a debt due to the party to whom the dispute resolution body has ordered that they be paid; and

(b) may be recovered by that party in a court of competent jurisdiction.

187—Regulations about the costs to be paid by parties to access dispute—scheme pipelines

The Regulations may provide for the dispute resolution body to—

(a) charge the parties to an access dispute for its costs in the access dispute; and

(b) apportion those costs between the parties.

Division 2—Non-scheme pipeline disputes

188—Costs of arbitration of non-scheme pipeline disputes

(1) This section applies in relation to the parties to an arbitration of a non-scheme pipeline dispute conducted under this Chapter.

(2) Despite any other provision of this Chapter, the parties to the arbitration bear their own costs.

(3) The costs of the arbitration (including costs associated with the arbitration process and the cost of the arbitrator) must be shared equally between the parties to the arbitration.

(4) The Rules may make provision in relation to the costs of an arbitration conducted under this Chapter, including rules that provide for a different approach to allocating costs under subsection (3) in specified circumstances.

(5) Costs that are payable to the arbitrator under this section—

(a) are a debt due by the party to the arbitrator; and

(b) may be recovered by the arbitrator in a court of competent jurisdiction.

Division 3—Mediation of access disputes involving small shippers

189—Costs of mediation of access disputes involving small shippers

(1) This section applies in relation to an access dispute involving small shippers that is referred to mediation under this Chapter.

(2) The parties to the mediation bear their own costs.

(3) The costs of the mediation (including costs associated with the mediation process and the cost of the mediator) must be shared equally between the parties to the mediation.

(4) Subsections (2) and (3) apply subject to any agreement between the parties to the access dispute about who will bear any costs (or a particular share of any costs) in the particular case.

(5) Costs that are payable to the mediator under this section—

(a) are a debt due by the party to the mediator; and

(b) may be recovered by the mediator in a court of competent jurisdiction.

Part 11—Joint access dispute hearings—scheme pipeline disputes

190—Definition

In this Part—

nominated disputes has the meaning given by section 191(2).

191—Joint dispute hearing

(1) This section applies if—

(a) the dispute resolution body is conducting 2 or more dispute hearings in relation to scheme pipeline access disputes at a particular time; and

(b) one or more matters are common to the access disputes in relation to which the dispute hearings are being conducted.

(2) The dispute resolution body may, by notice in writing, decide that it will hold a joint dispute hearing in respect of such of those access disputes (the nominated disputes ) as are specified in the notice.

(3) The dispute resolution body may do so only if it considers this would be likely to result in the nominated disputes being resolved in a more efficient and timely manner.

192—Consulting the parties

(1) Before making a decision under section 191(2), the dispute resolution body must give each party to each of the nominated disputes a notice in writing—

(a) specifying what the dispute resolution body is proposing to do; and

(b) inviting the party to make a written submission on the proposal to the dispute resolution body within 10 business days after the notice is given.

(2) The dispute resolution body must have regard to any submission so made in deciding whether to do so.

(3) The dispute resolution body may also have regard to any other matter it considers relevant.

193—Constitution and procedure of dispute resolution body for joint dispute hearings

Part 9 applies to the joint dispute hearing in a corresponding way to the way in which it applies to a particular dispute hearing.

194—Record of proceedings etc

(1) The dispute resolution body as constituted for the purposes of the joint dispute hearing may have regard to any record of the proceedings of the dispute of any of the nominated disputes.

(2) The dispute resolution body as constituted for the purposes of the dispute hearing of each of the nominated disputes may, for the purposes of making an access determination in relation to the access dispute to which that hearing relates—

(a) have regard to any record of the proceedings of the joint dispute hearing; and

(b) adopt any findings of fact made by the dispute resolution body as constituted for the purposes of the joint dispute hearing.

Part 12—Miscellaneous matters

195—Correction of access determinations for clerical mistakes etc

(1) This section applies if an access determination contains—

(a) a clerical mistake; or

(b) an error arising from an accidental slip or omission; or

(c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the determination; or

(d) a defect in form.

(2) Subject to the Rules, the relevant adjudicator for the access dispute the subject of the dispute hearing may correct the determination.

196—User's existing capacity rights during an access dispute

A service provider who is in an access dispute with a user must not, without the consent of the user, alter the rights that the user has to use the capacity of the pipeline during the period of the dispute.

Chapter 5A—Third-party access obligations for non-pipeline facilities

Part 1—Information transparency

197—Definitions

In this Part—

facility means the following:

(a) a blend processing facility;

(b) a compression service facility;

(d) a facility, other than a pipeline, prescribed by the Regulations for the purpose of this definition;

provider means the following:

(a) a blend processing service provider;

(b) a compression service provider;

(d) the owner, operator or controller of a facility prescribed for the purpose of paragraph (d) of the definition of facility .

198—Information and transparency requirements relating to facilities

(1) Without limiting any other provision, the Rules may provide for—

(a) the collection, disclosure, verification, management and publication of information in relation to services that may be provided by means of a facility; and

(b) without limiting paragraph (a), requirements about the information that must be provided by a provider in relation to access, or potential access, to services provided by means of a facility, including information about the following:

(i) the terms and conditions on which the provider is prepared to make the facility available for use by others;

(ii) the procedures that the provider will apply in determining a proposal for access to the facility;

(iii) relevant prices, costs and methodologies associated with gaining access to, and using, a facility and relevant or related services;

(iv) access contracts and arrangements used, or required to be used, by the relevant provider; and

(c) without limiting paragraphs (a) and (b), information to be provided by a provider in response to a request for access to services provided by means of a facility; and

(d) requirements to ensure that information is accurate and complete; and

(e) the imposition or recovery of costs associated with any matter referred to in a preceding paragraph or otherwise associated with facilitating access, or potential access, to services provided by means of a facility.

(2) Nothing in subsection (1) limits any power to grant an exemption from complying with a provision, or part of a provision, of the Rules.

199—Publication of information relating to facilities

A person required by the Rules made under section 198 to publish information must do so in accordance with the Rules.

Part 2—Access to certain facilities

200—Definitions

In this Part—

relevant facility means—

(a) a blend processing facility; or

(b) a facility of a type prescribed by the Regulations for the purposes of this paragraph.

201—Preventing or hindering access to relevant facilities

(1) A person who owns, operates or controls a relevant facility, or an associate of the person, must not engage in conduct for the purpose of preventing or hindering the access of another person to a service provided by a relevant facility.

(2) For the purposes of subsection (1), a person is taken to engage in conduct for a particular purpose if—

(a) the conduct is, or was, engaged in for that purpose or for a purpose that includes, or included, that purpose; and

(b) that purpose is, or was, a substantial purpose.

(3) A person may be taken to have engaged in conduct for the purpose referred to in subsection (1) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or another person or from other relevant circumstances.

(4) Subsection (3) does not limit the manner in which the purpose of a person may be established for the purpose of subsection (1).

(5) In this section—

(a) a reference to engaging in conduct is a reference to doing, or refusing to do, any act, including the following:

(i) refusing to supply a service provided by means of a relevant facility;

(ii) without reasonable grounds, limiting or disrupting a service provided by means of a relevant facility;

(iii) making, or giving effect to, a provision of a contract or arrangement;

(iv) arriving at, or giving effect to, a provision of an understanding;

(v) requiring the giving of, or giving, a covenant; and

(b) a reference to refusing to do an act includes a reference to—

(i) refraining, otherwise than inadvertently, from doing the act; or

(ii) making it known the act will not be done.

(6) Subsection (1) does not apply to conduct engaged in under an agreement, other than conduct in breach of this Law, the Regulations, the Rules or the Procedures, if—

(a) for conduct relating to a blend processing facility—the agreement was in force immediately before the Statutes Amendment (National Energy Laws) (Other Gases) Act 2023 commenced; and

(b) for conduct relating to any other type of facility—the agreement was in force immediately before the facility was prescribed as a relevant facility.

202—Terms and conditions must not discriminate

(1) A person who owns, operates or controls a relevant facility must not set terms and conditions for the use of a service provided by means of the facility that discriminate in favour of the following:

(a) the person's own operations, whether upstream or downstream; or

(b) the operations of an associate of the person.

(2) Subsection (1) does not apply to the extent that the cost of providing a service to another person is higher.

(3) This section does not apply if the agreement setting the terms and conditions was in force immediately before—

(a) for a blend processing facility—the commencement of the Statutes Amendment (National Energy Laws) (Other Gases) Act 2023 ; or

(b) otherwise—the facility became a relevant facility.

203—Duty to negotiate in good faith

(1) A user or prospective user seeking access to a service provided by means of a relevant facility and a person who owns, operates or controls the facility must negotiate in good faith with each other about—

(a) whether access can be granted to the user or prospective user; and

(b) if access is to be granted—the terms and conditions for the provision of access to the user or prospective user.

(2) Without limiting any other provision, the Rules may make provision for or with respect to the following:

(a) making and responding to a request for access;

(b) the negotiation framework;

(c) the resolution of disputes between the person who owns, operates or controls a relevant facility and a user or prospective user of the service provided by means of the relevant facility about 1 or more aspects of access to the service.

(3) Where provided for in the Rules, the decision of a dispute resolution body, made in accordance with a rule under subsection (2)(c), has effect as a contract between the parties to the dispute.

(4) Rules made under subsection (2) are not required to adopt, either in whole or in part, an existing dispute resolution mechanism in this Law or the Regulations.

204—Rules about ring fencing

(1) The Rules may make provision for matters relating to ring fencing the activities of providers, including the following:

(a) requirements for the structural and operational separation of the activities of providers;

(b) separate accounting requirements for the activities of providers;

(2) In this section—

provider means the following:

(a) a blend processing service provider;

(b) the owner, operator or controller of a class of facility prescribed by the Regulations.

Chapter 7—The Gas Bulletin Board

Part 1—AEMO to be Bulletin Board operator

217—AEMO to be Bulletin Board operator

AEMO is responsible for the operation of the Gas Bulletin Board.

218—AEMO's obligation to maintain Bulletin Board

(1) AEMO must maintain the Gas Bulletin Board.

(2) The Gas Bulletin Board—

(a) must be maintained as a website; and

(b) must contain information of the kind specified in the Rules in relation to the covered gas industry.

(3) AEMO may replace the website with another website containing information of the kind specified in the Rules in relation to the covered gas industry.

219—AEMO's other functions as operator of Gas Bulletin Board

AEMO also has, in its capacity as operator of the Gas Bulletin Board, the following functions:

(a) to collect and collate Bulletin Board information;

(b) to collect and collate other information in relation to the covered gas industry for inclusion on the Gas Bulletin Board;

(c) to derive from information of the type mentioned in paragraphs (a) and (b) information for inclusion on the Gas Bulletin Board;

(d) subject to the Rules, to publish information on the Gas Bulletin Board of the kinds that may or must be included on the Gas Bulletin Board under the Rules;

(e) to manage information of the type mentioned in paragraphs (a), (b) and (c);

(f) the other functions conferred on AEMO in its capacity as the operator of the Gas Bulletin Board by this Law, the Rules or any other law prescribed by the Regulations for the purposes of this paragraph.

222—Fees for services provided

(1) AEMO 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 Gas Bulletin Board; or

(b) Bulletin Board information.

(2) The fee must not be such as to amount to taxation.

Part 2—Bulletin Board information

223—Obligation to give information to AEMO

(1) A person who has possession or control of information in relation to the covered gas industry must give the information to AEMO for use by AEMO in connection with the Gas Bulletin Board if the person is required to do so under the Rules.

(2) The information must be given to AEMO in accordance with the Rules.

(3) Subsection (1) does not apply if the person is exempt under the Rules from giving the information.

(4) Subsection (1) applies subject to any provision made by the Regulations as to any person, transaction or activity that is not to be the subject of any Rules made under this section.

(5) AEMO must make available for the operation of the Bulletin Board information about covered gas, covered gas services or the use of covered gas that it acquires in its capacity as the operator or administrator of a regulated gas market.

(6) Subsection (1) does not require—

(a) a person to disclose information that is the subject of legal professional privilege; or

224—Person cannot rely on duty of confidence to avoid compliance with obligation

A person must not refuse to comply with the requirement in section 223(1) or under section 226A on the ground of any duty of confidence.

225—Giving false or misleading information

A person must not give Bulletin Board information to AEMO or the AER that the person knows is false or misleading in a material particular.

226—Immunity of persons giving information to AEMO or AER

(1) A person who gives Bulletin Board information to AEMO or the AER does not incur any civil monetary liability for an act or omission in giving that information unless the act or omission is done or made in bad faith or through negligence.

(2) The civil monetary liability for an act or omission of a kind referred to in subsection (1) done or made through negligence may not exceed the prescribed maximum amount.

(3) The Regulations may, for the purposes of subsection (2), without limitation do all or any of the following:

(a) prescribe a maximum amount that is limited in its application to persons, events, circumstances, losses or periods specified in the Regulations;

(b) prescribe maximum amounts that vary in their application according to the persons to whom or the events, circumstances, losses or periods to which they are expressed to apply;

226A—Provision of certain information to AER

(1) Without limiting any other provision, the Rules may provide for—

(a) requirements for persons subject to the operation of this Chapter to give to the AER gas price assumptions and forecasts connected with estimates of natural gas reserves and resources; and

(b) requirements to ensure that information satisfies the requirements of the Rules; and

(2) The AER, in relation to information given to the AER in compliance with a requirement under subsection (1), is to treat the information as having been given to it in confidence and is authorised to disclose the information in accordance with Chapter 10 Part 2 Division 1.

Part 3—BB Procedures

227—BB Procedures

AEMO may, in accordance with the Rules, make BB Procedures.

228—Nature of BB Procedures

(1) BB Procedures are a form of statutory instrument directed at the regulation of the Gas Bulletin Board.

(2) The BB Procedures may deal with the following matters:

(a) the matters specified by the Rules;

(b) any other matter relevant to the Gas Bulletin Board on which this Law or the Rules contemplate the making of Procedures.

(3) The BB Procedures—

(a) may vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(b) may confer functions or powers on, or leave any matter or thing to be decided by, AEMO; and

(d) may confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and

(e) may confer power on AEMO to require a person on whom a right is conferred, or an obligation imposed, under the Procedure—

(i) to comply with a guideline, standard or other document of an administrative nature; or

(ii) to conduct, or submit to, a test designed by AEMO under the Procedures; and

(f) may exempt, or confer a power of exemption, from the application of the Procedures or specified provisions of the Procedures; and

(g) may contain provisions of a savings or transitional nature.

(4) AEMO must not, without the consent of the MCE, make Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.

(5) The BB Procedures cannot—

(a) create an offence; or

(b) provide for a criminal or civil penalty.

228A—Compliance with BB Procedures

(1) AEMO and each person to whom the BB Procedures are applicable must comply with the Procedures.

(3) If AEMO has reason to believe that a person is not complying with the BB Procedures, it may, by notice in writing, direct the person to comply with relevant provisions of the BB Procedures.

(4) A person to whom a direction is addressed under subsection (3) must comply with the direction.

Chapter 7A—Access to operational transportation services

Part 1—Standard terms for operational transportation services

228B—Transportation service provider to publish standard OTSA

(1) A transportation service provider for a transportation facility must, in accordance with the Rules, prepare and publish on its website a form of operational transportation agreement in respect of the transportation facility that complies with the applicable requirements of the Rules and the Operational Transportation Service Code (a standard OTSA ) unless—

(a) the provider is exempted from the requirement under this section to prepare and publish a standard OTSA in respect of that transportation facility by or under the Rules; or

(b) the provider is exempted by the AER from the requirement under this section in respect of that transportation facility by or under this Law or the Rules.

(2) A transportation service provider for a transportation facility in respect of which a standard OTSA must be prepared and published under this section must, where required by the Rules or the Operational Transportation Service Code, prepare and publish on its website an amended standard OTSA in respect of the transportation facility.

(3) A transportation service provider for a transportation facility may, where permitted by the Rules or the Operational Transportation Service Code, prepare and publish on its website an amended standard OTSA in respect of the transportation facility.

228C—Formation of contracts on standard terms

(1) A transportation service provider for a transportation facility must on request by any person made in respect of the transportation facility—

(a) make an offer to enter into the standard OTSA for the transportation facility in accordance with the Rules; and

(b) if the offer is accepted, enter into the agreement in accordance with the Rules.

(2) Subsection (1) does not apply to a transportation service provider in respect of a transportation facility—

(a) if the provider is exempted from compliance with that subsection in respect of that transportation facility in accordance with the Rules; or

(b) if the provider is exempted by the AER from compliance with that subsection in respect of that transportation facility under this Law or the Rules; or

(3) A standard OTSA takes effect as a contract between the transportation service provider and another person when—

(a) the other person accepts the transportation service provider's offer to enter into the standard OTSA and enters into the OTSA; and

(b) any pre-conditions to the formation of the contract are satisfied.

(4) A contract formed in accordance with subsection (3) may be amended in accordance with its terms.

(5) A contract formed in accordance with subsection (3) expires and may be terminated in accordance with its terms.

228D—Exemptions from obligations under section 228B or 228C

(1) A transportation service provider for a transportation facility may request the AER to exempt that person from an obligation imposed under section 228B or 228C in respect of that transportation facility.

(2) A request under subsection (1) must be made in accordance with the Rules.

(3) On receipt of a request under subsection (1), the AER may, subject to the Rules, grant the person the exemption.

(4) An exemption granted under subsection (3) may be subject to such terms and conditions as may be required by the Rules or as the AER considers appropriate in accordance with the Rules.

228E—Requirements relating to standard OTSA

Without limiting any other provision, the Rules may make provision for or with respect to such things as—

(a) the time and manner of preparation and publication of a standard OTSA; and

(b) the form and content of a standard OTSA, including the transportation services that may be available for use under a standard OTSA; and

(d) amendments to a standard OTSA and contracts in the form of a standard OTSA; and

(e) matters of a savings or transitional nature.

228F—Service provider may enter into agreements different from a standard OTSA

Subject to section 83C, nothing in this Law is to be taken as preventing a transportation service provider from entering into an operational transportation service agreement with a transportation facility user or a prospective transportation facility user that is different to a standard OTSA prepared and published by the transportation service provider under section 228B.

Part 2—Operational Transportation Service Code

228G—Operational Transportation Service Code

The AER may, in accordance with the Rules—

(a) amend the initial Operational Transportation Service Code; and

(b) from time to time make subsequent amendments to the Code.

228H—Nature of the Operational Transportation Service Code

(1) The Operational Transportation Service Code (the Code ) is—

(a) the initial Operational Transportation Service Code; or

(b) if the initial Operational Transportation Service Code is amended under section 228G—that Code as amended and as subsequently amended from time to time under that section.

(2) The Code is made under the Rules and specifies the content of, or requirements for the content of, a standard OTSA, including the transportation services that may be provided under a standard OTSA and the terms and conditions applicable to the use of those transportation services.

(3) The Code may deal with the following matters:

(a) the matters specified by the Rules;

(b) any other matter relevant to a standard OTSA that this Law or the Rules contemplates being dealt with in the Code.

(4) The Code may specify provisions or classes of provisions that—

(a) confer rights or impose obligations under a standard OTSA; and

(b) vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(c) must be made by a transportation service provider in accordance with the Rules or Code and incorporated in a standard OTSA; and

(d) must not be included in a standard OTSA.

(5) The Code may contain provisions of a savings or transitional nature.

(6) The AER must not, without the consent of the MCE, make a provision in the Code that confers a right or function, or imposes an obligation, on the MCE or a Minister of a participating jurisdiction.

(7) The Code cannot—

(a) create an offence; or

(b) provide for a criminal or civil penalty.

Part 3—Other matters relating to access to operational transportation services

228I—Service requirements may be specified in the Rules

Without limiting any other provision, the Rules may make provision for or with respect to the following:

(a) principles that must be complied with when preparing terms and conditions for a standard OTSA;

(b) charges under a standard OTSA and review of those charges by the AER;

(d) the allocation to zones of points on a transportation facility where transportation services are provided and the provision and use of transportation services using zones;

(e) the obligations of transportation service providers with respect to facilitating the operational transfer of transportation capacity;

(f) the use of an operational transportation service after termination or suspension of the contract from which the transportation capacity was first derived;

(g) requests by a transportation facility user for changes to the point on a transportation facility where covered gas may be injected or withdrawn;

(h) the collection, recording and use of information about nominations and renominations for use of transportation services and the scheduling of that use.

228J—When operational transfer must be offered

(1) If a transportation facility user states terms and conditions (the first terms ) on which the user offers to grant to another person a right to use, directly or indirectly, the transportation capacity of the user without arranging for its transfer to the other person, the user must, on request by the person, state the terms and conditions on which the user will arrange for a transfer of the transportation capacity to the person for use under an operational transportation service agreement (the second terms ).

(2) If there is a difference in the price stated in the first terms and the second terms, the transportation facility user making the offer must include in the second terms a statement of the reasons for the difference.

228K—Preventing or hindering access to operational transportation services

(1) A person who is—

(a) a transportation service provider; or

(b) a transportation facility user; or

must not engage in conduct for the purpose of preventing or hindering the access of another person to an operational transportation service.

(2) For the purposes of subsection (1), a person is deemed to engage in conduct for a particular purpose if—

(a) the conduct is or was engaged in for that purpose or for a purpose that includes, or included, that purpose; and

(b) that purpose is or was a substantial purpose.

(4) Subsection (3) does not limit the manner in which the purpose of a person may be established for the purpose of subsection (1).

(5) In this section—

(a) a reference to engaging in conduct is a reference to doing or refusing to do any act, including the following:

(i) refusing to supply a transportation service or an operational transportation service;

(ii) without reasonable grounds, limiting or disrupting a transportation service or an operational transportation service or a transfer of transportation capacity;

(iii) making, or giving effect to, a provision of a contract or arrangement, arriving at, or giving effect to, a provision of an understanding, or requiring the giving of, or giving, a covenant; and

(b) a reference to refusing to do an act includes a reference to—

(i) refraining (otherwise than inadvertently) from doing that act; or

(ii) making it known that that act will not be done.

(6) Subsection (1) does not apply to conduct engaged in in accordance with an agreement (other than conduct in breach of this Law, the Regulations, the Rules or the Procedures), if the agreement was in force on 19 March 2018.

228L—Transportation service provider providing operational transportation services must not price discriminate

(1) A transportation service provider must not engage in price discrimination when providing operational transportation services.

(2) Subsection (1) does not apply if the transportation service provider engages in price discrimination that is conducive to efficient service provision.

Chapter 8—Proceedings under the National Gas Law

Part 1—Proceedings generally

229—Instituting civil proceedings under this Law

(1) Proceedings may not be instituted in a court in respect of a breach of a provision of this Law, the Regulations, Rules or Procedures that is not an offence provision by any person except as provided for in this Chapter.

(2) The AER may, in accordance with Chapter 8 Part 2, institute civil proceedings in respect of a breach of—

(a) a provision of this Law that is not an offence provision (including a provision that is a civil penalty provision or conduct provision); or

(b) a provision of the Regulations that is not an offence provision (including a provision that is a civil penalty provision or conduct provision); or

(d) a provision of the Procedures.

(3) A person other than the AER may, in accordance with Chapter 8 Part 2, institute civil proceedings in respect of a breach of a conduct provision.

230—Time limits 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, the Rules or the Procedures that is not an offence provision within 6 years after the date on which the breach occurred.

(2) A person, other than the AER, may only institute a proceeding for a breach of a conduct provision by another person within 6 years after the date on which the breach occurred.

Part 1A—Enforceable undertakings

230A—Enforceable undertakings

(1) The AER may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the AER has a function or power under this Law or the Rules.

(2) A person may withdraw or vary the undertaking at any time, but only with the consent of the AER.

(3) If the AER considers that the person who gave the undertaking has breached any of its terms, the AER may apply to the Court for an order under subsection (4).

(4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make any or all of the following orders:

(a) an order directing the person to comply with that term of the undertaking;

(b) an order directing the person to pay the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is attributable to the breach;

(c) an order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

(d) any other order that the Court considers appropriate.

Part 2—Proceedings for breaches of this Law, Regulations, the Rules or the Procedures

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 has breached a provision of this Law, the Regulations, the Rules or the Procedures that is not an offence provision.

Note—

A Supreme Court of a participating jurisdiction that is a State may hear an application by the AER under subsection (1) by operation of section 39(2) of the Judiciary Act 1903 of the Commonwealth.

(2) If the order declares a person has breached a provision of this Law, the Regulations, the Rules or the Procedures that is not an offence provision, the order may include 1 or more of the following:

(a) an order that the person pay a civil penalty determined in accordance with this Law, the Regulations and the Rules if the breach is a breach of a civil penalty provision;

(b) an order that the person cease, within a specified period, the act, activity or practice constituting the breach;

(c) an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;

(d) an order that the person implement a specified program for compliance with this Law, the Regulations, the Rules and the Procedures;

(da) an order that the person perform a specified service that relates to the breach and that is for the benefit of the community or a section of the community;

(db) an order that the person, at the person's expense, engage—

(i) another person specified in the order; or

(ii) another person in a class of persons specified in the order,

to perform a service that is specified in the order and that relates to the breach and that is for the benefit of the community or a section of the community;

(dc) an order to ensure that the person does not engage in further conduct of the same nature, or similar or related conduct, during the period of the order (which cannot exceed 3 years), including—

(i) an order that the person establish a compliance program or an education and training program for employees or other persons involved in the person's business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the conduct constituting the breach, or similar or related conduct; or

(ii) an order that the person revise the internal operations of the person's business that led to the person committing the breach;

(dd) an order that the person—

(i) disclose, in the way and to the persons specified in the order, specified information, being information that the person has possession of or access to; and

(ii) publish, at the person's expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order;

(e) an order of a kind prescribed by the Regulations.

(2a) An order under paragraph (db) of subsection (2) is not enforceable against a person mentioned in paragraph (db)(i) or (ii).

(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, the Rules or the Procedures that is not an offence provision, the Court may, on application by the AER on behalf of the Commonwealth, grant an injunction—

(a) restraining the person from engaging in the conduct; and

(b) if, in the Court's opinion, it is desirable to do so—requiring the person to do something.

(4) The power of the Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised—

(a) if the Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

(b) if it appears to the Court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

232—Proceedings for declaration that a person has breached a conduct provision

(1) The Court may make an order, on application by a person other than the AER, declaring that another person has breached a conduct provision.

(2) If the order declares a person has breached a conduct provision, the order may include 1 or more of the following:

(a) an order that the person cease, within a specified period, the act, activity or practice constituting the breach;

(b) an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;

(d) an order of a kind prescribed by the Regulations.

(3) If a person has engaged, is engaging or is proposing to engage in any conduct in breach of a conduct provision, the Court may, on application by another person (other than the AER), grant an injunction—

(a) restraining the first mentioned person from engaging in the conduct; and

(b) if, in the Court's opinion, it is desirable to do so—requiring the first mentioned person to do something.

(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—

233—Actions for damages by persons for breach of conduct provision

A person other than the AER who suffers loss or damage by conduct of another person that was done in breach of a conduct provision may recover the amount of the loss or damage by action against that other person in a court of competent jurisdiction.

Part 3—Matters relating to breaches of this Law, the Regulations or the Rules

234—Matters for which there must be regard in determining amount of civil penalty

Every civil penalty ordered to be paid by a person declared to have breached 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 breach; and

(ba) without limiting the operation of section 3A(1)(c)(ii)(B) or (C)—the value of any benefit reasonably attributable to the breach that the person or, in the case of a body corporate, any related body corporate, has obtained, directly or indirectly; and

(d) whether the person has engaged in any similar conduct and been found to have breached a provision of this Law, the Regulations or the Rules in respect of that conduct; and

(e) whether the service provider had in place a compliance program approved by the AER or required under the Rules, and if so, whether the service provider has been complying with that program.

235—Breach of a civil penalty provision is not an offence

A breach of a civil penalty provision is not an offence.

236—Breaches of civil penalty provisions involving continuing failure

For the purpose of determining the civil penalty for a breach of a civil penalty provision, if the breach consists of a failure to do something that is required to be done, the breach is to be regarded as continuing until the act is done despite the fact that any period within which, or time before which, the act is required to be done has expired or passed.

237—Conduct in breach of more than 1 civil penalty provision

(1) If the conduct of a person constitutes a breach of 2 or more civil penalty provisions, proceedings may be instituted under this Law against the person in relation to the breach of any 1 or more of those provisions.

(2) However, the person is not liable to more than 1 civil penalty under this Law in respect of the same conduct.

Note—

Clause 49 of Schedule 2 to this Law sets out further provisions in relation to double jeopardy.

238—Persons involved in breach of civil penalty provision or conduct provision

(1) A person must not—

(a) aid, abet, counsel or procure a breach of a civil penalty provision or conduct provision by another person; or

(b) be in any way directly or indirectly knowingly concerned in, or party to, a breach of a civil penalty provision or conduct provision by another person.

(2) This Law applies to a person who breaches subsection (1) in relation to a civil penalty provision or conduct provision as if the person were a person who has breached the civil penalty provision or conduct provision.

239—Attempt to breach a civil penalty provision

A person who attempts to commit a breach of a civil penalty provision commits a breach of that provision.

240—Civil penalties payable to the Commonwealth

If a person is ordered to pay a civil penalty, the penalty is payable to the Commonwealth.

Part 4—Judicial review of decisions under this Law, the Regulations and the Rules

241—Definition

In this Part—

person aggrieved includes a person whose interests are adversely affected.

242—Applications for judicial review of decisions of the AEMC

(1) A person aggrieved by—

(a) a decision or determination of the AEMC under this Law, the Regulations or the Rules; or

(b) a failure by the AEMC to make a decision or determination under this Law, the Regulations or the Rules; or

(c) conduct engaged in, or proposed to be engaged in, by the AEMC for the purpose of making a decision or determination under this Law, the Regulations or the Rules,

may apply to the Court for judicial review of the decision or determination, failure or conduct or proposed conduct.

Note—

The AER is subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth.

(2) Unless the Court otherwise orders, the making of an application to the Court under subsection (1) does not affect the operation of the decision or determination referred to in that subsection or prevent the taking of action to implement the decision or determination.

243—Applications for judicial review of AEMO's decisions

(1) A person aggrieved by—

(a) a decision or determination of AEMO under this Law, the Rules or the Procedures; or

(b) a failure by AEMO to make a decision or determination under this Law, the Rules or the Procedures; or

(c) conduct engaged in, or proposed to be engaged in, by AEMO for the purpose of making a decision or determination under this Law, the Rules or the Procedures,

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 a decision or determination to which the application relates or prevent the taking of action to implement the decision or determination.

Part 5—Merits review and other non-judicial review

Division 1—Interpretation

244—Definitions

In this Part—

applicant means—

(b) a person who makes an application under section 263;

information disclosure decision means—

(a) a decision to disclose information made by the AER under section 329; or

(b) a decision to disclose information made by AEMO under section 91GH.

review under this Part means a review under Division 3.

Division 3—Tribunal review of information disclosure decisions

263—Application for review

(1) A person whose interests are adversely affected by an information 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

(b) the decision is unreasonable having regard to all relevant circumstances.

(4) The person must lodge the notice with the Tribunal no later than 5 business days after the date of the last notice given under section 91GH or section 329 (as the case requires).

(5) An application under this section stays the operation of the decision until the earlier of—

(a) 20 business days; or

(b) the making of a determination by the Tribunal in respect of the application.

264—Exclusion of public in certain cases

On the application of a party to a review under this Division, the Tribunal may conduct the review in the absence of the public.

265—Determination in the review

(1) Subject to this Part, on receipt of an application under section 263, the Tribunal must make a determination in respect of the application.

(2) A determination under this section must only—

(a) affirm the information disclosure decision; or

(b) forbid disclosure by the AER or AEMO of the information or document to which the information disclosure decision relates; or

(c) restrict, as specified in the determination, the intended disclosure by the AER or AEMO of the information or document to which the information disclosure decision relates.

(3) For the purposes of making a determination of the kind in subsection (2)(a), the Tribunal may perform all the functions and exercise all the powers of the AER or AEMO (as the case requires) under this Law or the Rules.

(4) A determination by the Tribunal affirming the information disclosure decision, or forbidding or restricting disclosure of information, is, for the purposes of this Law (other than this Part), to be taken to be a decision of the AER or AEMO (as the case requires).

266—Tribunal must be taken to have affirmed decision if decision not made within time

(1) This section applies if the Tribunal does not make a determination under section 265 within 20 business days after an application is lodged under section 263.

(2) The Tribunal must be taken to have made a determination under section 265 affirming the information disclosure decision to which the application relates.

267—Assistance from AER or AEMO

The member of the Tribunal presiding in the review may require the AER or AEMO (as the case requires) to give information, to make a report or to give other assistance for the purposes of the review.

Division 4—General

268—Costs in a review

(1) Subject to this section, the Tribunal may order that a party to a review under this Part pay all or a specified part of the costs of another party to the review.

(2) The Tribunal must not make an order requiring the AER or AEMO to pay the costs of another party to the review unless the Tribunal considers that the AER or AEMO has conducted their case in the review without due regard to—

(a) the costs that would have to be incurred by another party to the review as a result of that conduct; or

(b) the time required by—

(i) the Tribunal to hear the review as a result of that conduct; or

(ii) another party to prepare their case as a result of that conduct.

269—Amount of costs

(1) If the Tribunal makes an order for costs in a review under this Part, the Tribunal may in that order fix the amount of costs payable by a party to the review on—

(a) a party and party basis; or

(b) a solicitor and client basis; or

(d) any other basis as the Tribunal may decide.

Part 5A—Dispute resolution under the Rules

270B—Commercial Arbitration Acts to apply to proceedings before Dispute resolution panels

(1) Subject to the modifications prescribed by the Regulations, the procedural provisions of the Commercial Arbitration Act of this jurisdiction apply to the hearing of a rule dispute and decisions or determinations of a Dispute resolution panel.

(2) In this section—

procedural provisions of the Commercial Arbitration Act of this jurisdiction means the provisions prescribed by the Regulations for the purposes of this section.

270C—Appeals on questions of law from decisions or determinations of Dispute resolution panels

(1) A person who is a party to a rule dispute may appeal to the Court, on a question of law, against—

(a) a decision or determination of a Dispute resolution panel; or

(b) a decision that is classified under the Rules as an appealable decision.

(2) Subject to the modifications prescribed by the Regulations, the review provisions of the Commercial Arbitration Act of this jurisdiction apply to the decision or determination under appeal.

(3) In this section—

review provisions of the Commercial Arbitration Act of this jurisdiction means the provisions prescribed by the Regulations for the purposes of this section.

Part 6—Enforcement of access determinations

271—Enforcement of access determinations

(1) If the Court is satisfied, on the application of a party to an access determination, that another party to the determination has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of the determination, the Court may make all or any of the following orders:

(a) an order granting an injunction on such terms as the Court thinks appropriate—

(i) restraining the other party from engaging in the conduct; or

(ii) if the conduct involves refusing or failing to do something—requiring the other party to do that thing;

(b) an order directing the other party to compensate the applicant for loss or damage suffered as a result of the contravention;

(2) The revocation of an access determination does not affect any remedy under subsection (1) in respect of a contravention of the determination that occurred when the determination was in force.

(3) If the Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.

(4) A reference in this section to a person involved in the contravention is a reference to a person who has—

(a) aided, abetted, counselled or procured the contravention; or

(b) induced the contravention, whether through threats or promises or otherwise; or

(d) conspired with others to effect the contravention.

272—Consent injunctions

On an application for an injunction under section 271, the Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.

273—Interim injunctions

The Court may grant an interim injunction pending determination of an application under section 271.

274—Factors relevant to granting a restraining injunction

The power of the Court to grant an injunction under section 271 restraining a person from engaging in conduct may be exercised whether or not—

(a) it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

(b) the person has previously engaged in conduct of that kind; or

(c) there is an imminent danger of substantial damage to any person if the first mentioned person engages in conduct of that kind.

275—Factors relevant to granting a mandatory injunction

The power of the Court to grant an injunction under section 271 requiring a person to do a thing may be exercised whether or not—

(a) it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or

(b) the person has previously refused or failed to do that thing; or

(c) there is an imminent danger of substantial damage to any person if the first mentioned person refuses or fails to do that thing.

276—Discharge or variation of injunction or other order

The Court may discharge or vary an injunction or order granted under this Part.

Part 7—Infringement notices

277—Power to serve notice

(1) The AER may serve an infringement notice on a person if the AER believes on reasonable grounds that the person has breached a civil penalty provision.

(2) The AER must, however, serve an infringement notice not later than 12 months after the date on which the AER forms a belief that there has been a breach of a civil penalty provision.

(3) An infringement notice may be served on a natural person—

(a) by delivering it personally to the person; or

(b) by sending it by post addressed to the person to their usual or last known place of residence or business.

(4) An infringement notice may be served on a person that is a body corporate—

(a) by delivering it personally to the registered office or usual or last known place of business of the body corporate; or

(b) by sending it by post addressed to the body corporate to its registered office or usual or last known place of business.

278—Form of notice

An infringement notice must state—

(a) the date of the notice;

(b) that the alleged breach is a breach of the civil penalty provision;

(d) the date, time and place of the alleged breach;

(e) the infringement penalty for the alleged breach;

(f) the manner in which the infringement penalty may be paid;

(g) the time (being not less than 28 days after the date on which the notice is served) within which the infringement penalty must be paid;

(h) that, if the amount of the infringement penalty is paid before the end of the time specified in the notice, proceedings will not be instituted in respect of the alleged breach by the AER unless the notice is withdrawn before the end of that time in accordance with section 282;

(i) that the person is entitled to disregard the notice and defend any proceedings in respect of the civil penalty provision;

(j) any other particulars prescribed by the Regulations.

279—Infringement penalties

(1) In this section—

tier 1 civil penalty provision means a provision with a civil penalty determined under section 3A(1)(c);

tier 2 civil penalty provision means a provision with a civil penalty determined under section 3A(1)(b);

tier 3 civil penalty provision means a provision with a civil penalty determined under section 3A(1)(a).

(2) The infringement penalty for a breach of a civil penalty provision is—

(a) in the case of a tier 3 civil penalty provision—

(i) if the breach is alleged to have been committed by a natural person—$6 790 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision;

(ii) if the breach is alleged to have been committed by a body corporate—

(A) if the AER makes a determination under subsection (3)—$6 790 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision; or

(B) in any other case—$33 900 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision;

(b) in the case of a tier 2 or tier 1 civil penalty provision—

(i) if the breach is alleged to have been committed by a natural person—$13 600 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision;

(ii) if the breach is alleged to have been committed by a body corporate—$67 800 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision.

(3) In the case of a body corporate that is not a listed corporation or a body corporate that is subject to the infringement penalty by virtue only of being a related body corporate, the AER may, in a particular case, determine that the infringement penalty to be included in an infringement notice to be issued to the body corporate in relation to an alleged breach of a tier 3 civil penalty provision will be the amount applying under subsection (2)(a)(ii)(A) if the AER considers this to be an appropriate course of action after taking into account—

(a) the nature of the alleged breach; and

(b) the degree of financial impact on the body corporate if the higher infringement penalty under subsection (2)(a)(ii)(B) were to be imposed; and

(c) the extent to which the imposition of the higher infringement penalty would appear to be excessive in the circumstances; and

(d) any other matter considered relevant by the AER.

Note—

See Schedule 2 clause 47A, which provides for the amounts specified in this section to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website.

280—AER cannot institute proceedings while infringement notice on foot

On serving an infringement notice under this Part, the AER must not institute a proceeding in respect of the breach for which the infringement notice was served if—

(a) the time for payment stated in the infringement notice has not expired; and

(b) the infringement notice has not been withdrawn by the AER in accordance with section 282.

281—Late payment of penalty

The AER may accept payment of the infringement penalty even after the expiration of the time for payment stated in the infringement notice if—

(a) a proceeding has not been instituted in respect of the breach to which the infringement penalty relates; and

(b) the infringement notice has not been withdrawn by the AER in accordance with section 282.

282—Withdrawal of notice

(1) The AER may withdraw an infringement notice at any time before the end of the time for payment specified in the notice by serving a withdrawal notice on the person served with the infringement notice.

(2) A withdrawal notice may be served on a natural person—

(a) by delivering it personally to the person; or

(b) by sending it by post addressed to the person to their usual or last known place of residence or business.

(3) A withdrawal notice may be served on a person that is a body corporate—

(a) by delivering it personally to the registered office or usual or last known place of business of the body corporate; or

(b) by sending it by post addressed to the body corporate to its registered office or usual or last known place of business.

(4) An infringement notice may be withdrawn even if the infringement penalty has been paid.

283—Refund of infringement penalty

If an infringement notice is withdrawn in accordance with section 282, the amount of any infringement penalty paid must be refunded by the AER.

284—Payment expiates breach of civil penalty provision

No proceedings may be taken by the AER against a person on whom an infringement notice was served in respect of an alleged breach of a civil penalty provision if—

(a) the infringement penalty is—

(i) paid within the time for payment stated in the notice; and

(ii) not withdrawn by the AER within the time for payment stated in the notice in accordance with section 282; or

(b) the infringement penalty is accepted in accordance with section 281.

285—Payment not to have certain consequences

The payment of an infringement penalty under this Part is not and must not be taken to be an admission of a breach of a civil penalty provision or an admission of liability for the purpose of any proceeding instituted in respect of the breach.

286—Conduct in breach of more than 1 civil penalty provision

(1) If the conduct of a person constitutes a breach of 2 or more civil penalty provisions, an infringement notice may be served on the person under this Part in relation to the breach of any 1 or more of those provisions.

(2) However, the person is not liable to pay more than 1 infringement penalty in respect of the same conduct.

Part 8—Further provision for corporate liability for breaches of this Law etc

287—Definition

In this Part—

breach provision means an offence provision, a civil penalty provision or a conduct provision.

288—Offences and breaches by corporations

(1) If a corporation contravenes a breach provision, each officer of the corporation is to be taken to have contravened the breach provision if the officer knowingly authorised or permitted the contravention or breach.

(2) An officer of a corporation may be proceeded against under a breach provision pursuant to this section whether or not the corporation has been proceeded against under the provision.

(3) Nothing in this section affects the liability of a corporation for a contravention of a breach provision.

289—Corporations also in breach if officers and employees are in breach

If an officer or employee of a corporation commits an act, which is within the scope of the actual or apparent authority of the officer or employee, that would, if that act were committed 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

Division 1—Interpretation

290—Definitions

In this Chapter—

AEMC initiated Rule means a Rule of the kind referred to in section 295(2);

AEMC Rule review means a review conducted by the AEMC under Chapter 2 Part 2 Division 5;

gas market regulatory body means—

(a) the AER;

(b) AEMO;

(d) REMCo;

(e) a person or body prescribed by Regulation to be a gas market regulatory body;

GMCo means the Gas Market Company Ltd (ACN 095 400 258);

market initiated proposed Rule means a request for a Rule, including a trial Rule, made under section 295(1) in respect of which the AEMC publishes a notice under section 303;

more preferable Rule has the meaning given by section 296;

non-controversial Rule means a Rule that is unlikely to have a significant effect on a market for gas or the regulation of pipeline services;

proposed Rule means—

(a) a market initiated proposed Rule; or

(b) a proposal for an AEMC initiated Rule; or

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 and on the AEMC's website;

(b) in relation to a decision under section 301(2)—publish on the AEMC's website and make available at the offices of the AEMC;

(c) in relation to a proposed Rule referred to in section 303 and any other documents prescribed by the Regulations in relation to a proposed Rule referred to in section 303—publish on the AEMC's website and make available at the offices of the AEMC;

(d) in relation to a draft Rule determination or final Rule determination—publish on the AEMC's website and make available at the offices of the AEMC;

(da) in relation to a notice setting out requirements imposed under section 314B—publish on the AEMC's website;

(e) in relation to any submissions or comments received by the AEMC under this Chapter—subject to section 319, publish on the AEMC's website and make available at the offices of the AEMC;

(f) in relation to a report prepared under section 320—publish on the AEMC's website and make available at the offices of the AEMC;

REMCo means the Retail Energy Market Company Ltd (ACN 103 318 556);

trial Rule means a Rule for the purposes of a trial project;

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—

(a) the effective operation or administration of a regulated gas market operated and administered by AEMO; or

(b) the supply of gas.

Division 2—Rule making tests

291—Application of national gas objective

(1) The AEMC may only make a Rule if it is satisfied that the Rule will or is likely to contribute to the achievement of the national gas objective.

(2) For the purposes of subsection (1), the AEMC may give such weight to any aspect of the national gas objective as it considers appropriate in all the circumstances, having regard to any relevant MCE statement of policy principles.

292—AEMC must take into account form of regulation factors in certain cases

In addition to complying with sections 291 and 293, the AEMC must take into account the form of regulation factors and any other matter the AEMC considers relevant—

(a) in making a Rule that—

(i) specifies a pipeline service as a reference service; or

(ii) confers a function or power on the AER to specify under an access arrangement decision approving or making an access arrangement a pipeline service (to which the relevant applicable access arrangement applies) as a reference service; or

(b) in revoking a Rule that has been made or is in force that—

(i) specifies a pipeline service as a reference service; or

293—AEMC must take into account revenue and pricing principles in certain cases

In addition to complying with sections 291 and 292, the AEMC must take into account the revenue and pricing principles in making a Rule for or with respect to any matter or thing specified in items 45 to 53 of Schedule 1 to this Law.

293A—AEMC must take into account innovative trial principles in certain cases

In addition to complying with sections 291 to 293, the AEMC must take into account the innovative trial principles in making a trial Rule.

Part 2—Minister initiated National Gas Rules

Division 1—Initial Rules made by Minister

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 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)—

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 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—

(a) the date on which the Rules commence operation; or

(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.

(7) If the Minister referred to in subsection (1) makes Rules under that subsection, the Minister cannot make another Rule under that subsection.

294A—South Australian Minister to make initial Rules and Procedures related to AEMO's functions under this Law

(1) The Minister in right of the Crown of South Australia administering Part 2 of the National Gas (South Australia) Act 2008 of South Australia (the South Australian Minister )—

(a) may make Rules on any 1 or more of the following subjects:

(i) AEMO's statutory functions (including the declared system functions);

(ii) the subject matter of a new head of power added to Schedule 1 by the AEMO amendments;

(iii) any other subject contemplated by, or consequential on, the AEMO amendments; and

(b) may make Wholesale Market Procedures and Retail Market Procedures.

(2) Rules or Procedures may only be made under subsection (1) on the recommendation of the MCE.

(3) Section 74(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(4) Section 91BM(3) and section 91MA(3) apply respectively to Wholesale Market Procedures and Retail Market Procedures made under subsection (1) in the same way as they apply to Procedures made by AEMO.

(5) As soon as practicable after making Rules or Procedures under subsection (1), the South Australian Minister must—

(a) publish notice of the making of the Rules or Procedures in the South Australian Government Gazette stating the date of commencement or, if they commence at different times, the various dates of commencement; and

(b) make the Rules or Procedures publicly available.

(6) The South Australian Minister may, by a later notice published in the South Australian Government Gazette, vary a commencement date fixed under subsection (5)(a) or this subsection.

(7) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection and once the first Procedures have been made for a particular market, no further Procedures for that market can be made under subsection (1).

(8) Rules in the nature of a derogation may be made under this section even though no request has been made for the derogation.

294B—South Australian Minister to make initial Rules related to AEMO's declared STTM functions

(1) The Minister in right of the Crown of South Australia administering Part 2 of the National Gas (South Australia) Act 2008 of South Australia (the South Australian Minister ) may make Rules on any 1 or more of the following subjects:

(a) AEMO's STTM functions;

(b) the subject matter of a new head of power added to Schedule 1 by the STTM amendments;

(2) Rules may only be made under subsection (1) on the recommendation of the MCE.

(3) Section 74(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(4) As soon as practicable after making Rules under subsection (1), the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette stating the date of commencement or, if they commence at different times, various dates of commencement; and

(b) make the Rules publicly available.

(5) The South Australian Minister may, by a later notice published in the South Australian Government Gazette, vary a commencement date fixed under subsection (4)(a) or this subsection.

(6) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

(7) Rules in the nature of a derogation may be made under this section even though no request has been made for the derogation.

294C—South Australian Minister may make initial Rules and Retail Market Procedures relating to implementation of NERL and NERR

(1) The Minister in right of the Crown of South Australia administering Part 2 of the National Gas (South Australia) Act 2008 of South Australia (the South Australian Minister ) may—

(a) make Rules for or with respect to the following:

(i) retail support obligations between service providers and retailers;

(ii) credit support arrangements between service providers and retailers;

(iii) the connection of premises of retail customers;

(iv) any other matter consequential on the making of the National Energy Retail Law or the National Energy Retail Rules or on the application of that Law or those Rules in a participating jurisdiction; and

(b) make Retail Market Procedures.

(2) The South Australian Minister may make Rules or Retail Market Procedures that amend the Rules or Retail Market Procedures (as the case requires) made under subsection (1) for any purpose that is necessary or consequential on the application of the National Energy Retail Law or the National Energy Retail Rules in a participating jurisdiction.

(3) Section 74(3) applies to Rules made under this section in the same way as it applies to Rules made by the AEMC.

(4) As soon as practicable after making Rules or Retail Market Procedures under this section, the South Australian Minister must—

(a) publish notice of the making of the Rules or Procedures in the South Australian Government Gazette; and

(b) make the Rules or Procedures publicly available.

(5) The notice referred to in subsection (4)(a) must state—

(a) the date on which the Rules or Retail Market Procedures commence operation; or

(b) if different Rules or Procedures will commence operation on different dates, those dates.

(6) Rules or Retail Market Procedures may only be made under this section on the recommendation of the MCE.

(7) Rules or Retail Market Procedures cannot be made under this section once any one of the participating jurisdictions applies the National Energy Retail Law as a law of that jurisdiction.

(8) A reference in this section to Retail Market Procedures includes a reference to RoLR Procedures within the meaning of Part 6 of the National Energy Retail Law.

294CA—South Australian Minister may make consequential Rules relating to rate of return instrument

(1) The South Australian Minister may make Rules that revoke or amend a Rule if the revocation or amendment is consequential on the enactment of the Statutes Amendment (National Energy Laws) (Binding Rate of Return Instrument) Act 2018 .

(2) Without limiting subsection (1), the South Australian Minister may make a Rule providing that the rate of return on capital under a rate of return instrument in force at the start of a regulatory period applies throughout the period.

(3) Section 74(3) applies to Rules made under this section in the same way it applies to Rules made by the AEMC.

(4) As soon as practicable after making Rules under this section, the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(5) The notice referred to in subsection (4)(a) must state—

(a) the date on which the Rules commence operation; and

(b) if different Rules will commence operation on different dates, those dates.

(6) Rules may only be made under this section on the recommendation of the MCE.

(7) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

(8) In this section—

regulatory period means the period specified in an applicable access arrangement to be the regulatory period;

South Australian Minister means the Minister in right of the Crown of South Australia administering Part 2 of the National Gas (South Australia) Act 2008 of South Australia.

294D—South Australian Minister to make initial Rules relating to AEMO's gas trading exchange functions

(1) The Minister in right of the Crown of South Australia administering Part 2 of the National Gas (South Australia) Act 2008 (the South Australian Minister ) may make Rules on any 1 or more of the following subjects:

(a) AEMO's gas trading exchange functions;

(b) the subject matter of a new head of power added to Schedule 1 by the GTE amendments;

(2) Rules may only be made under subsection (1) on the recommendation of the MCE.

(3) Section 74(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(4) As soon as practicable after making Rules under subsection (1), the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette stating the date of commencement or, if they commence at different times, various dates of commencement; and

(b) make the Rules publicly available.

(5) The South Australian Minister may, by a later notice published in the South Australian Government Gazette, vary a commencement date fixed under subsection (4)(a) of this subsection.

(6) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

(7) Rules in the nature of a derogation may be made under this section even though no request has been made for the derogation.

294DA—South Australian Minister to make initial Rules relating to the capacity reforms

(1) The Minister in right of the Crown of South Australia administering Part 2 of the National Gas (South Australia) Act 2008 of South Australia (the South Australian Minister )—

(a) may make Rules for or with respect to any one or more of the following subjects:

(i) the capacity auction functions of AEMO, the operation of a capacity auction and the activities of transportation service providers and transportation facility users in connection with a capacity auction;

(ii) transaction support arrangements;

(iii) access to and the provision of operational transportation services;

(iv) the making and amendment of an Operational Transportation Service Code;

(v) the standard market timetable and the standard gas day;

(vi) the collection, use, disclosure, copying, recording, management and publication of information in relation to secondary capacity transactions;

(vii) the collection, use, disclosure, copying, recording, management and publication of information in relation to natural gas or natural gas services from a person who determines the allocation of deliveries or receipts of natural gas;

(viii) the matters referred to in sections 83B, 83C, 228E and 228I;

(ix) the buying and selling of transportation capacity through the gas trading exchange;

(x) the subject matter of a new head of power added to Schedule 1 by the Capacity Trading and Auction amendments;

(xi) any other subject contemplated by, or consequential on, the Capacity Trading and Auction amendments; and

(b) may make Rules that revoke or amend a Rule as a consequence of the enactment of the Capacity Trading and Auction amendments and any of the Rules referred to in paragraph (a); and

(c) may make Rules that require a contract (including a contract made in accordance with an access arrangement or an access determination) to be amended as a consequence of the enactment of the Capacity Trading and Auction amendments and any of the Rules referred to in paragraph (a) or (b); and

(d) may make an Operational Transportation Service Code.

(2) Rules or an Operational Transportation Service Code may only be made under subsection (1) on the recommendation of the MCE.

(3) Section 74(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(4) As soon as practicable after making Rules or an Operational Transportation Service Code under subsection (1), the South Australian Minister must—

(a) publish notice of the making of the Rules or Code in the South Australian Government Gazette; and

(b) make the Rules or Code publicly available.

(5) The notice referred to in subsection (4)(a) must state—

(a) the date on which the Rules or Code commence operation; or

(b) if different Rules or provisions of the Code will commence operation on different dates, those dates.

(6) The South Australian Minister may, by a later notice published in the South Australian Government Gazette, vary a commencement date fixed under subsection (5).

(7) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

(8) Once the first Operational Transportation Service Code has been made under subsection (1), no further Operational Transportation Service Code can be made under that subsection.

(9) Rules in the nature of a derogation may be made under this section even though no request has been made for the derogation.

(10) In this section—

Capacity Trading and Auction amendments means the amendments made to this Law by the National Gas (South Australia) (Capacity Trading and Auctions) Amendment Act 2018 .

294E—South Australian Minister to make initial Rules relating to Energy Consumers Australia

(a) for or with respect to Energy Consumers Australia (including provisions for its funding); and

(b) for or with respect to any other subject contemplated by, or consequential on, the ECA amendments; and

(2) Section 74(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(3) As soon as practicable after making Rules under subsection (1), the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(4) The notice referred to in subsection (3)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

(5) The Rules made under subsection (1) may only be made on the recommendation of the MCE.

(6) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

294EA—South Australian Minister to make initial Rules relating to regulatory sandboxing

(a) for or with respect to—

(i) the regulatory sandboxing amendments; and

(ii) any other subject contemplated by, or necessary or expedient for the regulatory sandboxing amendments; and

(b) that revoke or amend a Rule as a consequence of the enactment of the regulatory sandboxing amendments.

(2) Section 74(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(3) As soon as practicable after making Rules under this section, the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(4) The notice referred to in subsection (3)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

(5) Rules may only be made under subsection (1) on the recommendation of the MCE.

(6) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

(7) In this section—

regulatory sandboxing amendments means the amendments made to this Law by the Statutes Amendment (National Energy Laws) (Regulatory Sandboxing) Act 2022 .

294F—South Australian Minister to make initial Rules relating to access to non-scheme pipelines

(a) access proposals, access disputes and arbitrations under Chapter 6A;

(b) the subject matter of a new head power added to Schedule 1 by the Pipelines Access/Arbitration amendments;

(2) Rules may only be made under subsection (1) on the recommendation of the MCE.

(3) Section 74(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(4) As soon as practicable after making Rules under subsection (1), the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette stating the date of commencement or, if they commence at different times, various dates of commencement; and

(b) making the Rules publicly available.

(5) The South Australian Minister may, by a later notice published in the South Australian Government Gazette, vary a commencement date fixed under subsection (4)(a) or this subsection.

(6) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

(7) Rules in the nature of a derogation may be made under this section even though no request has been made for the derogation.

(8) In this section—

Pipelines Access/Arbitration amendments means the amendments made to this Law by the National Gas (South Australia) (Pipelines Access—Arbitration) Amendment Act 2017 .

294FA—South Australian Minister to make initial Rules relating to enhanced market transparency

(1) The Minister in right of the Crown of South Australia administering Part 2 of the National Gas (South Australia) Act 2008 (the South Australian Minister ) may make Rules—

(a) for or with respect to any 1 or more of the following subjects:

(i) the AER gas price reporting functions;

(ii) the Natural Gas Services Bulletin Board;

(iii) the collection and use of information for, or the content of, the gas statement of opportunities;

(iv) the subject matter of a new head power added to Schedule 1 by the market transparency amendments;

(v) any other subject contemplated by, or consequential on, the market transparency amendments; and

(b) that revoke or amend a Rule as a consequence of the market transparency amendments and any of the Rules referred to in paragraph (a).

(2) Rules may only be made under subsection (1) on the recommendation of the MCE.

(3) Section 74(3) applies to the Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(4) As soon as practicable after making Rules under subsection (1), the South Australian Minister must—

(a) publish a notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(5) The notice referred to in subsection (4)(a) must state—

(a) the date on which the Rules commence operation; and

(b) if different Rules will commence operation on different dates, those dates.

(6) The Minister may, by a later notice published in the South Australian Government Gazette, vary a commencement date fixed under subsection (5).

(7) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

(8) Rules in the nature of a derogation may be made under this section even though no request has been made for the derogation.

(9) In this section—

market transparency amendments means the amendments made to this Law by the National Gas (South Australia) (Market Transparency) Amendment Act 2022 .

294FB—South Australian Minister to make initial Rules relating to pipeline regulation

(1) The South Australian Minister may make Rules on any 1 or more of the following subjects:

(a) scheme pipeline determinations, scheme pipeline revocation determinations, scheme pipeline elections, greenfields incentive determinations, greenfields price protection determinations, monitoring of service providers, general requirements for the provision of pipeline services, information disclosure requirements, access negotiations and access disputes;

(b) the subject matter of a new head of power added to Schedule 1, or an existing head of power amended, by the Gas Pipelines amendments;

(2) Rules may only be made under subsection (1) on the recommendation of the MCE.

(3) Section 74(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(4) As soon as practicable after making Rules under subsection (1), the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette stating the date of commencement or, if they commence at different times, various dates of commencement; and

(b) make the Rules publicly available.

(5) The South Australian Minister may, by a later notice published in the South Australian Government Gazette, vary a commencement date fixed under subsection (4)(a) or this subsection.

(6) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

(7) Rules in the nature of a derogation may be made under this section even though no request has been made for the derogation.

(8) In this section—

Gas Pipelines amendments means the amendments made by the Statutes Amendment (National Energy Laws) (Gas Pipelines) Act 2022 and the amendments to the National Gas (South Australia) Regulations by regulations that are expressed to be made in connection with the Statutes Amendment (National Energy Laws) (Gas Pipelines) Act 2022 .

294FC—South Australian Minister to make initial Rules relating to national gas objective

(1) The South Australian Minister may, within 9 months after the commencement of this section—

(a) make Rules for or with respect to any matter or thing necessary or expedient to implement the amended objective; and

(b) make Rules for or with respect to any other subject contemplated by, or necessary or expedient for implementing, the amended objective; and

(c) make Rules that revoke or amend a Rule as a consequence of the enactment of the Statutes Amendment (National Energy Laws) (Emissions Reduction Objectives) Act 2023 of South Australia.

(2) Rules in the nature of a derogation may be made under subsection (1) even though there may not have been a request for a derogation.

(3) 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.

(4) As soon as practicable after making Rules under subsection (1), the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(5) The notice referred to in subsection (4)(a) must state—

(a) the date on which the Rules commence operation; or

(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.

(7) If the South Australian Minister makes Rules under subsection (1), the Minister cannot make another Rule under that subsection.

(8) In this section—

amended objective means the national gas objective as in force on the commencement of this section.

294FD—South Australian Minister to make initial Rules relating to other gases

(1) The South Australian Minister may make Rules—

(a) for or with respect to—

(i) the other gas amendments; and

(ii) any other subject contemplated by, or necessary or expedient for, the other gas amendments; and

(b) that revoke or amend a Rule as a consequence of the enactment of the other gas amendments.

(2) Rules may only be made under this section on the recommendation of the MCE.

(3) Section 74(3) applies to Rules made under this section in the same way as it applies to a Rule made by the AEMC.

(4) As soon as practicable after making Rules under this section, the South Australian Minister must—

(a) publish a notice of the making of the Rules and the date the Rules commence in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(5) The notice referred to in subsection (4)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

(6) The Minister may, by a later notice published in the South Australian Government Gazette, vary a commencement date fixed under subsection (5).

(7) Once the first Rules have been made, no further Rules can be made under this section.

(8) Rules in the nature of a derogation may be made under this section even though no request has been made for the derogation.

(9) In this section—

other gas amendments means the amendments made to this Law by the Statutes Amendment (National Energy Laws) (Other Gases) Act 2023 .

Division 2—Rules made by Minister from time to time

294G—South Australian Minister may make Rules on recommendation of MCE and Energy Security Board

(1) The South Australian Minister may make Rules recommended by the MCE in accordance with subsection (2).

(2) The MCE may only recommend the making of Rules under subsection (1) if—

(a) the Rules are for or with respect to any matter or thing referred to in section 74 and Schedule 1 to this Law; and

(b) the Energy Security Board has recommended to the MCE that it recommend the making of the Rules under subsection (1).

(3) The Energy Security Board may only make a recommendation for the purposes of subsection (2)(b) in relation to Rules if—

(a) the Rules are in connection with energy security and reliability of the NEM or long-term planning—

(i) for the NEM; or

(ii) in relation to investment in, and operation and use of, covered gas services; and

(b) the Energy Security Board is satisfied that the Rules are consistent with the national gas objective; and

(c) the Energy Security Board has undertaken consultation on the Rules in accordance with any requirements determined by the MCE.

(4) Rules in the nature of a derogation may be made under this section even though there may not have been a request for a derogation.

(5) Section 74(3) applies to Rules made under subsection (1) in the same way as that section applies to Rules made by the AEMC.

(6) As soon as practicable after making Rules under this section, the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(7) The notice referred to in subsection (6)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

Part 3—Procedure for the making of a Rule by the AEMC

295—Initiation of making of a Rule

(1) The AEMC may make a Rule at the request of any person or the MCE.

Note—

Section 74 and Schedule 1 to this Law specify the subject matter for Rules.

(2) The AEMC must not make a Rule without a request under subsection (1) unless—

(a) it considers the Rule corrects a minor error in the Rules; or

(b) it considers the Rule involves a non-material change to the Rules; or

(c) the Rule is in respect of any matter that is prescribed by the Regulations as a matter on which it may make a Rule on its own initiative.

(3) Despite subsection (1), a request for the making of a Rule regulating the declared system functions (other than the functions specified in section 91BA(1)(f) and (g)) may only be made by—

(a) AEMO; or

(b) a service provider for a declared transmission system that is a party to a service envelope agreement with AEMO; or

(4) The AEMC may only make a Rule that has effect with respect to an adoptive jurisdiction if satisfied that the proposed Rule is compatible with the proper performance of AEMO's declared system functions.

(5) The AEMC may only make a Rule that affects the allocation of powers, functions and duties between AEMO and a service provider for a declared transmission system if—

(a) AEMO consents to the making of the Rule; or

(b) the Rule is requested by the Minister of the relevant adoptive jurisdiction.

296—AEMC may make more preferable Rule in certain cases

The AEMC may make a Rule that is different (including materially different) from a market initiated proposed Rule (a more preferable Rule ) if the AEMC is satisfied that, having regard to the issue or issues that were raised by the market initiated proposed Rule (to which the more preferable Rule relates), the more preferable Rule will or is likely to better contribute to the achievement of the national gas objective.

297—AEMC may make Rules that are consequential to a Rule request

(1) Despite section 295(2), the AEMC may, having regard to a request to make a Rule under section 29(1), make a Rule under this Law, the National Electricity Law or the National Energy Retail Law that is necessary or consequential, or corresponds, to the Rule.

(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 or the Rules (or both); and

(b) must, subject to section 299, be accompanied by the fee prescribed by the Regulations (if any); and

299—Waiver of fee for Rule requests

The AEMC may waive the payment of any fee prescribed by the Regulations for the purposes of section 298.

300—Consolidation of 2 or more Rule requests

(1) If the AEMC considers it necessary or desirable that 2 or more requests for the making of a Rule should be dealt with together, the AEMC may—

(a) treat those requests as 1 request for the purposes of this Chapter (a consolidated Rule request ); or

(b) treat any later request as a submission in relation to the earliest Rule request.

(2) For the purposes of this Chapter, the AEMC may treat a consolidated Rule request as being received by it on the day it receives either the first or last of the Rule requests forming part of the consolidated Rule request.

301—Initial consideration of request for Rule

(1) Subject to this Chapter, as soon as practicable after receiving a request for the making of a Rule (an active request ), the AEMC must consider whether—

(a) the active request appears to—

(i) contain the information prescribed by the Regulations or the Rules (or both); and

(ii) not be misconceived or lacking in substance; and

(b) the subject matter of the active request appears to be for or with respect to a matter in respect of which the AEMC may make a Rule under this Law; and

Note—

Section 74 and Schedule 1 to this Law specify the subject matter for Rules.

(i) a Rule made, or a request for the making of a Rule under section 295(1) not proceeded with, in the 12 months immediately before the date of receipt of the active request; or

(ii) another request for the making of a Rule under section 295(1) in respect of which the AEMC is taking action under this Part; and

(d) in the case of an active request for a trial Rule—the subject matter of the request appears to relate to the subject matter of—

(i) a trial waiver granted by the AER; or

(ii) an application for a trial waiver that has been received by the AER (but that has not been granted at the time of the active request for the trial Rule).

(2) If the AEMC considers that—

(a) in the case of an active request for the making of any Rule—having regard to the matters set out in subsection (1), it should not take any action under this Part in respect of the active request; or

(b) in the case of an active request for the making of a trial Rule—it should not take any action under this Part in respect of the active request on the basis that—

(i) the trial project to which the active request relates—

(A) is unlikely to be carried out; or

(B) offers no reasonable prospect of leading to better services and outcomes for consumers of gas; or

(ii) the trial Rule requested—

(A) is unnecessary to enable the trial project to be undertaken (including, for example, because the trial project could be undertaken under a trial waiver); or

(B) is unlikely to enable the trial project to be undertaken; or

the AEMC must make a decision to that effect and inform the person or body, in writing, that requested the Rule of that decision.

(3) Despite subsection (1) or (2), the AEMC may make a decision to the effect that it should not take any action under this Part in respect of the active request if the person or body that made the active request has not complied with a notice in accordance with section 302.

(4) In making a decision under subsection (3), the AEMC must have regard to any representation it receives under section 302(4).

(5) A decision under subsection (2) or (3) must—

(a) set out the reasons for the decision; and

(b) be given to the person or body that made the active request without delay; and

(6) Subject to this Chapter, if the AEMC considers that, having regard to the matters set out in subsection (1), it should take action under this Part in respect of an active request the AEMC must publish notice of that active request in accordance with section 303.

(7) The AEMC must, as soon as practicable after receiving an active request relating to a trial Rule, consult with AEMO on the matter.

302—AEMC may request further information from Rule proponent in certain cases

(1) This section applies if the AEMC—

(a) receives a request for the making of a Rule under section 295(1); and

(b) considers, having regard to the nature and content of the request, that further information is required from the person or body that has made the request to assist it to understand the request's purpose or content.

(2) The AEMC may, by notice in writing, request the person or body that made the request under section 295(1) to provide the AEMC further information.

(3) A notice under subsection (2) must specify—

(a) the kind of information the AEMC requires from the person or body; and

(b) the time within which that information must be provided to the AEMC.

(4) A person or body given a notice under this section may make a written representation to the AEMC as to why it cannot provide the information specified in the notice within the time specified in the notice.

303—Notice of proposed Rule

(1) This section applies if the AEMC—

(a) considers that it should take action under this Part in respect of a request for the making of a Rule; or

(b) forms an intention to make an AEMC initiated Rule.

(2) The AEMC must publish—

(a) notice of the request or intention (as the case requires); and

(b) a draft of the proposed Rule; and

(3) A notice published under this section must—

(a) invite written submissions and comments from any person or body in relation to the proposed Rule by the date specified in the notice by the AEMC, being a date that is not less than 4 weeks from the date the notice is published; and

(b) contain any other information prescribed by the Regulations.

(4) Nothing in this Part is to be taken as requiring the AEMC to publish notices under this section in the same order as it—

(a) considers that it should take action under this Part in respect of a request for the making of a Rule; or

(b) forms an intention to make an AEMC initiated Rule.

304—Publication of non-controversial or urgent final Rule determination

(1) Subject to this section, if the AEMC considers that—

(a) an AEMC initiated Rule is a non-controversial Rule; or

(b) a request for a Rule is a request for a non-controversial Rule; or

the AEMC may make the relevant Rule in accordance with this Part (except sections 307 to 310) and as if the period of time within which the final Rule determination in respect of the relevant Rule must be published were 8 weeks from the date of publication of the notice under section 303.

(2) Before making a Rule as set out in subsection (1), the AEMC must include in a notice under section 303 a statement to the effect that the AEMC may make the relevant Rule if the AEMC does not receive a written request, and reasons, not to do so from any person or body within 2 weeks of publication of that notice.

(3) The AEMC must not make a Rule in accordance with this section if, following publication of a notice under section 303 containing a statement to the effect set out in subsection (2)—

(a) the AEMC receives a written request not to do so; and

(b) the reasons set out in that request are not, in its opinion, misconceived or lacking in substance.

(4) If the AEMC is of the opinion that the reasons given by a person or body in a written request for it not to make the non-controversial Rule or urgent Rule are misconceived or lacking in substance, the AEMC must—

(a) make a decision to that effect; and

(b) give the person or body its reasons, in writing, for that decision without delay.

(5) If the AEMC is of the opinion that the reasons given by a person or body in a written request for it not to make the non-controversial Rule or urgent Rule, are not misconceived or lacking in substance, the AEMC must publish a notice to the effect that it will make the relevant Rule in accordance with this Part (other than this section).

304A—Publication of final Rule determination for trial Rule

(1) If the AEMC considers that a request for a Rule is a request for a trial Rule, the AEMC may make the relevant Rule in accordance with this Part (except sections 307 to 310) and as if the period of time within which the final Rule determination in respect of the relevant Rule must be published were 10 weeks from the date of publication of the notice under section 303.

(2) Sections 304 and 305 do not apply to a request for a trial Rule.

305—"Fast track" Rules where previous public consultation by gas market regulatory body or an AEMC review

(1) This section applies if—

(a) a gas market regulatory body has—

(i) made a request for the making of a Rule under section 295(1); and

(ii) consulted with the public on the nature and content of the request before making that request; or

(b) a person or the MCE has made a request for the making of a Rule under section 295(1) on the basis of—

(i) a recommendation for the making of a Rule contained in a MCE directed review; or

(ii) a conclusion for the making of a Rule contained in an AEMC Rule review.

(2) The AEMC may take action under this Part in respect of the request without complying with section 303(3)(a) or 307 if it is of the opinion that—

(a) in the case where the request has been made by a gas market regulatory body in the circumstances described in subsection (1)(a)—the consultation conducted by the gas market regulatory body was adequate, having regard to—

(i) the nature and content of that request; and

(ii) the kind of consultation conducted by the gas market regulatory body;

(b) in the case where a request has been made by a person or the MCE in the circumstances described in subsection (1)(b)—

(i) the request reflects, or is consistent with, the relevant recommendation contained in the MCE directed review or relevant conclusion in the AEMC Rule review (as the case requires); and

(ii) there was adequate consultation with the public by it on the content of the relevant recommendation or relevant conclusion during the MCE directed review or AEMC Rule review (as the case requires).

(3) To avoid doubt—

(a) section 301 applies to a request for the making of a Rule to which this section applies; and

(b) section 306 does not apply to a request for the making of a Rule to which this section applies.

306—Right to make written submissions and comments

Any person or body, within the period specified in a notice under section 303, may make a written submission or comment in relation to the proposed Rule to which the notice relates.

307—AEMC may hold public hearings before draft Rule determination

(1) The AEMC may (but need not), at any time after publication of a notice under section 303 and before making a draft Rule determination, hold a hearing in relation to any proposed Rule.

(2) Notice of a hearing held under this section must—

(a) be published; and

(b) contain the information prescribed by the Regulations (if any).

308—Draft Rule determination

(1) The AEMC must make a draft Rule determination before making a final Rule determination in relation to the proposed Rule.

(2) Subject to this Chapter, the AEMC must, within 10 weeks after the date specified in a notice under section 303, publish—

(a) the draft Rule determination; and

(b) notice of the making of the draft Rule determination.

(3) In the case of a proposed Rule to which section 305 applies, the AEMC must publish the draft Rule determination and notice of the making of the draft Rule determination within 5 weeks after the date notice under section 303(2) is published.

(4) A draft Rule determination must contain—

(a) the reasons of the AEMC as to whether or not it should make the proposed Rule, including—

(i) in the case where the proposed Rule is not a proposed more preferable Rule, the reasons of the AEMC as to whether it is satisfied the proposed Rule will or is likely to contribute to the achievement of the national gas objective; and

(ii) in the case of a proposed more preferable Rule, the reasons of the AEMC as to whether it is satisfied the proposed more preferable Rule will or is likely to better contribute to the achievement of the national gas objective than the market initiated Rule request to which the more preferable Rule relates; and

(iii) if the AEMC is required to take into account the form of regulation factors or the revenue and pricing principles, the reasons of the AEMC taking those factors or principles (as the case requires) into account; and

(iv) the reasons of the AEMC having regard to any relevant MCE statement of policy principles; and

(v) the reasons of the AEMC having regard to any other matters the AEMC considers relevant; and

(b) if the AEMC determines to make a Rule, a draft of the Rule to be made; and

(4a) The draft of the Rule to be made need not be the same as the draft of the proposed Rule to which the notice under section 303 relates.

(5) A notice referred to in subsection (2) must—

(a) invite written submissions and comments from any person or body in relation to the determination within a period specified by the AEMC, being a period not less than 6 weeks from the date of publication of the notice; and

(b) include a statement to the effect that any person or body may request, in writing within 1 week after the publication of the notice, the AEMC to hold a hearing in accordance with section 310; and

309—Right to make written submissions and comments in relation to draft Rule determination

Any person or body, within the period specified in a notice under section 308(1), may make a written submission or comment in relation to a draft Rule determination to which the notice relates.

310—Pre-final Rule determination hearing may be held

(1) The AEMC may (but need not), at any time after publication of a notice under section 308(2)(b) and before making a final Rule determination, hold a hearing in relation to a draft Rule determination.

(2) In addition, any person or body may request, in writing, within 1 week after the publication of a notice under section 308(2), the AEMC to hold a hearing in relation to a draft Rule determination.

(3) Despite subsection (2), the AEMC may decide not to a hold a hearing in relation to a draft Rule determination.

(4) Without limiting the reasons why the AEMC may decide not to a hold a hearing following a request under subsection (2) in relation to a draft Rule determination, the AEMC may decide not to hold a hearing if—

(a) the person or body that requests the AEMC to hold a hearing does not make a written submission or comment in accordance with section 309; and

(b) no other person or body requests the AEMC to hold a hearing.

(5) If the AEMC decides not to hold a hearing after a request under subsection (2), it must give the person or body that requested the hearing its reasons, in writing, for declining that person's or body's request.

(6) If the AEMC decides to hold a hearing, or agrees to hold a hearing after a request under subsection (2), the AEMC must—

(a) appoint a date (being not later than 3 weeks after the date of publication of the notice under section 308), time and place for the holding of the hearing; and

(b) publish a notice of that date, time and place.

311—Final Rule determination

(1) Subject to section 312, the AEMC must make a final Rule determination as to whether to make a proposed Rule.

(2) Subject to this Chapter, the AEMC must, within 6 weeks after the period for written submissions or comments in relation to the draft Rule determination ends, publish—

(a) the final Rule determination; and

(b) notice of the making of the final Rule determination.

(3) A final Rule determination must contain—

(a) the reasons of the AEMC as to whether or not it should make a Rule, including—

(i) in the case where the Rule to be made is not a more preferable Rule, the reasons of the AEMC as to whether it is satisfied the Rule will or is likely to contribute to the achievement of the national gas objective; and

(ii) in the case where the Rule to be made is a more preferable Rule, the reasons of the AEMC as to whether it is satisfied the more preferable Rule to be made will or is likely to better contribute to the achievement of the national gas objective than the market initiated Rule request to which the more preferable Rule relates; and

(iiia) if the AEMC is required to take into account the innovative trial principles, the reasons of the AEMC taking those principles into account; and

(iv) the reasons of the AEMC having regard to any relevant MCE statement of policy principles; and

(v) the reasons of the AEMC having regard to any other matters the AEMC considers relevant; and

(b) any other matters that are prescribed by the Regulations.

(4) A notice referred to in subsection (2) must contain the information prescribed by the Regulations.

312—Proposal to make more preferable Rule

(1) If, in view of the response to a draft Rule determination, the AEMC proposes to make a more preferable Rule, the AEMC may—

(a) make, and publish notice of, a draft Rule determination in respect of the proposed more preferable Rule; or

(b) make, and publish notice of, a final Rule determination for the proposed more preferable Rule.

(2) The final Rule determination, or further draft Rule determination, and the related notice, must be published within 30 business days after the end of the period for submissions or comments on the earlier draft Rule determination.

313—Making of Rule

(1) Subject to this section, if the AEMC, in its final Rule determination, determines to make a Rule, the AEMC must make the relevant Rule as soon as practicable after the publication of the final Rule determination.

(2) Notice of the making of the Rule must be published in the South Australian Government Gazette as soon as practicable after the making of the Rule.

(3) The AEMC must not make a trial Rule unless the date on which the Rule will expire (which must be no more than 5 years after the date on which the trial Rule commences operation) is specified in the Rule.

314—Operation and commencement of Rule

A Rule made under section 313 commences operation on the day the relevant notice is published in the South Australian Government Gazette or on any day after that day that is provided for in the relevant notice or the Rule.

314A—Extension of trial Rule

(1) Subject to this section, the AEMC may, on request, extend, by notice, the date on which a trial Rule will expire (the expiry date ) to a later date, being a date that falls not more than the period prescribed by the Regulations after the expiry date.

(2) Before extending the expiry date of a trial Rule, the AEMC—

(a) must have regard to the innovative trial principles; and

(b) must consult with the AER; and

(c) if the AEMC considers that the trial Rule, or the trial project to which the trial Rule relates, may impact on AEMO's operation of systems relating to covered gas and markets for covered gas—must consult with AEMO; and

(d) may consult with AEMO or any other person.

(3) A request under subsection (1) must—

(a) be made to the AEMC at least 60 days before the expiry date; and

(b) specify the length of the extension required.

(4) A notice under subsection (1) must—

(a) be published; and

(b) specify the later date referred to in subsection (1).

(5) The expiry date of a trial Rule may only be extended once under subsection (1).

314B—AEMC may impose requirements on proponent of trial project on making trial Rule

(1) The AEMC may, in connection with making a trial Rule, by notice, impose requirements on a person or body that proposes to undertake the trial project (a proponent ) to which the trial Rule relates.

(2) Without limiting subsection (1), the AEMC may impose a requirement that 1 or more reports be submitted to the AER in relation to the trial project.

(3) A notice under subsection (1) must—

(a) be published; and

(b) comply with any other requirements prescribed by the Regulations.

(4) A proponent to which requirements imposed under this section apply must comply with those requirements.

(5) If a proponent breaches subsection (4) and, as a result of the breach, the AER recommends that a trial Rule be revoked before the date on which the Rule will expire, the AEMC may—

(a) revoke the trial Rule; or

(b) vary or revoke a requirement imposed on the proponent, or impose further requirements on the proponent.

314C—AEMC may revoke trial Rule on recommendation of AER

(1) The AEMC may, on the recommendation of the AER, revoke a trial Rule in accordance with this Chapter.

(2) This section is in addition to, and does not limit, section 314B.

314D—Special provision for revocation of trial Rule

(1) Part 1 Division 2, Part 3 and Part 4 do not apply to the revocation of a trial Rule by the AEMC under section 314B(5)(a) or 314C(1).

(2) As soon as practicable after revoking a trial Rule under section 314B(5)(a) or 314C(1), the AEMC must—

(a) publish notice of the revocation, specifying the date on which the revocation takes effect, on its website; and

(b) publish reasons for the revocation on its website.

315—Rule that is made to be published on website and made available to the public

On publication of a notice in accordance with section 313(2), the AEMC must, without delay—

(a) publish the Rule on its website; and

(b) make copies of the Rule available to the public at its offices.

316—Evidence of the National Gas Rules

A document purporting to be a copy of—

(a) the National Gas Rules; or

(b) the initial National Gas Rules; or

endorsed with a certificate to which the seal of the AEMC has been duly affixed certifying the document is such a copy, is evidence that the document is such a copy.

Part 4—Miscellaneous provisions relating to rule making by the AEMC

317—Extension of periods of time in Rule making procedure

(1) Despite anything to the contrary in this Chapter and without limiting section 318, the AEMC may, by notice, extend a period of time specified in Chapter 9 Part 3 if the AEMC considers that a request for a Rule raises issues of sufficient complexity or difficulty or there is a material change in circumstances such that it is necessary that the relevant period of time specified in Chapter 9 Part 3 be extended.

(2) A notice under subsection (1) must—

(a) be published; and

(b) set out the period of time specified in Chapter 9 Part 3 to be extended; and

(3) A notice under subsection (1) may be published at the same time as a notice under section 303.

(4) The AEMC may only extend a period of time under this section before the expiry of that time.

318—AEMC may extend period of time for making of final Rule determination for further consultation

(1) This section applies if—

(a) a person or body raises an issue in—

(i) a submission or comment in relation to a draft Rule determination; or

(ii) a hearing held under section 307 or 310; and

(b) the AEMC considers the issue raised by the person or body requires further public consultation in relation to the proposed Rule or draft Rule determination.

(2) Despite anything to the contrary in this Chapter and without limiting section 317, the AEMC may, by notice, extend the period of time specified in section 311 within which it must make a final Rule determination.

(3) A notice under subsection (2) must—

(a) be published; and

(b) specify a new period of time to apply in the place of the period of time specified in section 311; and

(d) invite written submissions and comments from any person or body by the date specified in the notice.

(4) The new period of time must not have the effect of extending the relevant period of the time specified in section 311 by more than 4 weeks.

(5) The AEMC may only extend the period of time under this section before the expiry of time specified in section 311.

(6) Any person or body, within the period specified in a notice under subsection (2), may make a written submission or comment in relation to the issue specified in the notice.

319—AEMC may publish written submissions and comments unless confidential

(1) Subject to this section, the AEMC may publish any information in any written submission or comment given to it under this Chapter unless—

(a) the person or body who gave the information, claims, when giving it to the AEMC, that it contains confidential information; and

(b) the AEMC decides that the written submission or comment contains confidential information.

(2) A written submission or comment given to the AEMC under this Chapter that has been claimed under this section to contain confidential information, and that the AEMC has decided contains confidential information, may be published if that information is omitted.

(3) If information is omitted from a published written submission or comment given to the AEMC under this Chapter as being confidential information, a note to that effect must be included in the submission or comment at the place in the submission or comment from which the information is omitted.

Note—

See also section 71 of this Law and section 24 of the Australian Energy Market Commission Establishment Act 2004 of South Australia.

320—AEMC must publicly report on Rules not made within 12 months of public notification of requests

(1) This section applies if the AEMC—

(a) publishes a notice under section 303 in respect of a request for the making of a Rule; but

(b) does not make a final Rule determination in respect of that request within 12 months after the publication of that notice (the report trigger date ).

(2) The AEMC must prepare a report on the request as soon as practicable after the report trigger date.

(3) A report prepared under this section—

(a) must contain the reasons why the final Rule determination has not been made within 12 months after the publication of the notice under section 303; and

(b) must specify when the AEMC considers it will make the final Rule determination; and

320A—Subsequent rule making by AEMC

Nothing in Part 2 Division 2 is to be taken to affect the power of the AEMC to make Rules (in accordance with this Law and the Regulations) for or with respect to any matter or thing referred to in section 74 and Schedule 1 to this Law (whether before or after Rules have been made under Part 2 Division 2).

Chapter 10—General

Part 2—Handling of confidential information

Division 1—Disclosure of confidential information held by AER

324—Authorised disclosure of information given to the AER in confidence

The AER is authorised to disclose information given to it in confidence in, or in connection with, the performance or exercise of its functions or powers under this Law or the Rules subject to and in accordance with—

(a) this Division; or

(b) section184.

Note—

See also section 30 of this Law and section 44AAF of the Competition and Consumer Act 2010 of the Commonwealth.

325—Disclosure with prior written consent is authorised

The AER is authorised to disclose information given to it in confidence if the AER has the written consent to do so of—

(a) the person who gave the information; or

(b) the person from whom the person referred to in paragraph (a) received that information.

326—Disclosure for purposes of court and tribunal proceedings and to accord natural justice

The AER is authorised to disclose information given to it in confidence—

(a) for the purposes of civil or criminal proceedings; or

(b) for the purposes of a proceeding before the Tribunal or a tribunal established by or under a law of this jurisdiction or another participating jurisdiction; or

(c) for the purposes of according natural justice to a person affected by a decision (however described) of the AER under this Law or the Rules.

326A—Disclosure of information to Energy Security Board

The AER is authorised to disclose to the Energy Security Board information given to the AER in confidence in or in connection with the performance of its functions or the exercise of its powers under this Law or the Rules.

327—Disclosure of information given to the AER with confidential information omitted

(1) This section applies if—

(a) in compliance with this Law or the Rules or voluntarily, a person gives the AER information in confidence; and

(b) that information is contained in a document with other information.

(2) The AER may disclose the document with the information given in confidence omitted.

(3) The AER must include a note at the place in the document from which the information given in confidence is omitted to the effect that that information has been omitted from the document.

328—Disclosure of information given in confidence does not identify anyone

The AER is authorised to disclose information given to it in confidence, in compliance with this Law or the Rules or voluntarily, if—

(a) it does not disclose any elements of the information that could lead to the identification of the person to whom that information relates; or

(b) the manner in which it discloses the information does not identify the person to whom that information relates.

Example—

Information disclosed under this section may be combined or arranged with other information provided that the manner in which that information is combined or arranged will not lead to the identification of the person to whom the information relates.

328A—Disclosure of information that has entered the public domain

The AER is authorised to disclose information given to it in confidence, in compliance with this Law or the Rules or voluntarily, if the information is already in the public domain.

328B—Disclosure of information in an aggregated form

The AER is authorised to disclose information given to it in confidence, in compliance with this Law or the Rules or voluntarily, if the information has been combined or arranged with other information so that it does not reveal any confidential aspects of the information.

329—Disclosure of information authorised if detriment does not outweigh public benefit

(1) Despite sections 325 to 328B (inclusive), the AER is authorised to disclose information given to it in confidence, in compliance with this Law or the Rules or voluntarily, after the restricted period if the AER is of the opinion—

(a) that the disclosure of the information would not cause detriment to the person who has given it or to the person from whom that person received it; or

(b) that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment.

(1a) However—

(a) in the case of information given to the AER in order to comply with a regulatory information instrument—the AER must not disclose information under subsection (1) unless and until—

(i) the AER has considered any reasons and information given to the AER under section 57A(1)(b) and (2) when determining whether or not it is of the opinion required by subsection (1); and

(ii) the AER has complied with subsections (1b), (1c) and (1d); and

(iii) the restricted period has expired; and

(b) in the case of other information—the AER must not disclose information under subsection (1) unless and until—

(i) the AER has complied with subsections (2) to (6) (inclusive); and

(ii) the restricted period has expired.

(1b) If the AER wishes to disclose information to which subsection (1a)(a) applies (after taking into account the requirements of subsections (1) and (1a)(a)) and—

(a) the AER intends to disclose the information on the basis of the AER having formed the opinion required by subsection (1)(a), the AER must give the person who gave the information and, if the AER is aware that the person who gave the information in turn received the information from another person and is aware of that other person's identity and address, that other person—

(i) a written notice stating—

(A) that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

(B) that the AER is of the opinion required by subsection (1)(a); and

(ii) the AER's decision, in writing, setting out the reasons why the AER—

(A) wishes to make the disclosure; and

(B) is of the opinion required by subsection (1)(a); or

(b) the AER intends to disclose the information on the basis of the AER having formed the opinion required by subsection (1)(b), the AER must give the person who gave the information and, if the AER is aware that the person who gave the information in turn received the information from another person and is aware of that other person's identity and address, that other person—

(i) a written notice stating—

(A) that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

(B) that the AER is of the opinion required by subsection (1)(b); and

(C) that the person, within the period specified in the notice (which must not be less than 5 business days after the date the notice is given to the person), may make representations to the AER solely in relation to the AER's reasons for deciding that the public benefit in disclosing the information outweighs any detriment that may be caused to the person by the disclosure; and

(ii) the AER's decision, in writing, setting out the reasons why the AER—

(A) wishes to make the disclosure; and

(B) is of the opinion required by subsection (1)(b).

(1c) The AER must consider any representation that complies with the requirements of subsection (1b)(b)(i)(C) made to it by a person given a notice under subsection (1b)(b)(i) within the time specified in the notice.

(1d) If, after considering any representation under subsection (1c), the AER wishes to disclose the information, the AER must give each person given a notice under subsection (1b)(b)(i)—

(a) a written notice stating—

(i) that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

(ii) that the AER is of the opinion required by subsection (1)(b); and

(b) the AER's decision, in writing, setting out the reasons why the AER—

(i) wishes to make the disclosure; and

(ii) is of the opinion required by subsection (1)(b).

(1e) To avoid doubt, a person entitled to make representations under subsection (1b)(b)(i) is not entitled to make representations under that subsection in relation to the AER's assessment of the detriment that may be caused to the person by the intended disclosure of the information.

(2) Before disclosing information to which subsection (1a)(b) applies disclosing the information, the AER must give the person who gave the information—

(a) a written notice (an initial disclosure notice ) stating—

(i) that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

(ii) that the AER is of the opinion required by subsection (1); and

(iii) that the person, within the period specified in the notice, may make representations to the AER not to disclose the information; and

(b) the AER's decision, in writing, setting out the reasons why the AER—

(i) wishes to make the disclosure; and

(ii) is of the opinion required by subsection (1).

(3) If the AER is aware that the person who gave information to which subsection (1a)(b) applies in turn received the information from another person and is aware of that other person's identity and address, the AER must, before disclosing the information give that other person—

(a) a written notice (an initial disclosure notice ) stating—

(i) that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

(ii) that the AER is of the opinion required by subsection (1); and

(iii) that the person, within the period specified in the notice, may make representations to the AER not to disclose the information; and

(b) the AER's decision, in writing, setting out the reasons why the AER—

(i) wishes to make the disclosure; and

(ii) is of the opinion required by subsection (1).

(4) The AER must consider every representation made to it by a person given an initial disclosure notice under this section within the time specified in the notice.

(5) The period of time specified in an initial disclosure notice must not be less than 5 business days after the date the initial disclosure notice is given to the person.

(6) If after considering any representation under subsection (4), the AER wishes to disclose the information, the AER must give the person given the initial disclosure notice—

(a) a written notice (a further disclosure notice ) stating—

(i) that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

(ii) that the AER is of the opinion required by subsection (1); and

(b) the AER's decision, in writing, setting out the reasons why the AER—

(i) wishes to make the disclosure; and

(ii) is of the opinion required by subsection (1).

(7) For the purposes of this section, the disclosure of anything that is already in the public domain at the time the AER wishes to disclose it cannot cause detriment to any person referred to in subsection (1b), (2) or (3).

(7a) Despite anything to the contrary in this Law, this section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to—

(a) the AER's decision under subsection (1) to disclose information given in confidence to the AER including, but not limited to, such information given to the AER in compliance with a regulatory information instrument and in relation to which a claim of confidentiality has been made in accordance with section 57A; and

(b) without limiting paragraph (a), if the AER's decision under subsection (1) is to disclose the confidential information, the AER's opinion—

(ii) that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment.

(8) In this section—

restricted period means—

(a) in the case of information given to the AER in order to comply with a regulatory information instrument—a period of 5 business days after—

(i) a notice has been given under subsection (1b)(a)(i); or

(ii) —

(A) a notice has been given under subsection (1b)(b)(i); or

(B) a notice has been given under subsection (1d)(a),

whichever is the later; or

(b) in the case of other information—a period of 5 business days after—

(i) an initial disclosure notice has been given under this section; or

(ii) a further disclosure notice has been given under this section,

whichever is the later.

Division 2—Disclosure of confidential information held by AEMC

330—Confidentiality of information

(1) Information provided to the AEMC for the purposes of an MCE directed review or a review conducted by the AEMC under section 83 is confidential information for the purposes of that procedure if—

(a) the person who provides it claims, when providing it to the AEMC, that it is confidential information; and

(b) the AEMC decides that the information is confidential information.

(2) Nothing prevents the disclosure of confidential information by the AEMC in a report published under Division 4 or Division 5 of Chapter 2 Part 2, but the AEMC must ensure that the information is identified as such in the report.

(3) If the AEMC decides that information provided to it for the purposes of an MCE directed review or a review conducted by the AEMC under section 83 is confidential information, the AEMC, the MCE or a Minister of a participating jurisdiction may only publish a version of the report from which the information has been omitted.

(4) If information is omitted from a published version of a report as being confidential information, a note to that effect must be included in the decision at the place in the decision from which the information is omitted.

Note—

See also section 71 of this Law and section 24 of the Australian Energy Market Commission Establishment Act 2004 of South Australia.

Part 3—Miscellaneous

332—Failure to make a decision under this Law or the Rules within time does not invalidate the decision

(1) A decision (however described) made under this Law or the Rules by a regulatory scheme decision maker after the expiry of the period of time specified by this Law or Rules for the making of that decision is not to be taken to be an invalid decision only because the decision is not made within the specified period of time.

(2) A decision to which subsection (1) applies takes effect on and from—

(a) the day it is made; or

(b) if it specifies a date for operation or effect that is after the day it is made, that specified date.

(3) In this section—

regulatory scheme decision maker means any of the following:

(a) the AER;

(b) the AEMC;

333—Withdrawal of applications relating to particular determinations or classification

(1) A person who has made an application for a relevant decision may withdraw the application at any time before the decision is made.

(2) A withdrawal of an application in accordance with this section must be—

(a) in writing; and

(b) given to the AER.

(3) In this section—

relevant decision means—

(a) a scheme pipeline determination; or

(b) a scheme pipeline revocation determination; or

(d) a greenfields price protection determination; or

(e) a classification decision; or

(f) a reclassification decision.

335A—Penalty privilege

If an individual has a privilege against self-exposure to a penalty, other than for a criminal offence, the individual is not excused from doing any of the following on that ground:

(a) providing information under this Law, the Regulations or the Rules;

(b) producing a document under this Law, the Regulations or the Rules;

(d) answering a question under this Law, the Regulations or the Rules.

335B—Court may grant relief from liability

If in any proceedings under this Law in which a person, other than a body corporate, may be liable for an offence or a civil penalty it appears to the Court that the person acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused, the Court may relieve the person either wholly or partly from liability on such terms as the Court thinks fit.

336—Savings and transitionals

Schedule 3 to this Law has effect.

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NATIONAL GAS (SOUTH AUSTRALIA) ACT 2008 - SCHEDULE