South Australian Consolidated Acts South Australian Consolidated ActsChapter 1—Preliminary
Part 1—Citation and interpretation
1—Citation
This law may be cited as the National Gas Law.
2—Definitions
In this Law—
15-year no-coverage determination means a determination of a relevant Minister
under Chapter 5 Part 2;
ACCC means the Australian Competition and Consumer Commission established by
section 6A of the Trade Practices Act 1974 of the Commonwealth;
access arrangement means an arrangement setting out terms and conditions about
access to pipeline services provided or to be provided by means of a pipeline;
access determination means a determination of the dispute resolution body
under Chapter 6 Part 3 and includes a determination varied under Part 4 of
that Chapter;
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
(c) the
Procedures first made under this Law after the enactment of the amendments
referred to in paragraph (a);
AER means the Australian Energy Regulator established by section 44AE of the
Trade Practices Act 1974 of the Commonwealth;
AER economic regulatory decision means a decision (however described) of the
AER under this Law or the Rules performing or exercising an AER economic
regulatory function or power;
AER economic regulatory function or power means a function or power performed
or exercised by the AER under this Law or the Rules that relates to the
economic regulation of pipeline services provided by a service provider—
(a) by
means of; or
(b) in
connection with,
a scheme pipeline and includes a function or power performed or exercised by
the AER under this Law or the Rules that relates to—
(c) the
preparation of a service provider performance report;
(d) a
ring fencing decision;
(e) an
applicable access arrangement decision;
(f) an
access determination (if the AER is the dispute resolution body);
AER ring fencing determination means a determination of the AER under
section 143(1);
applicable access arrangement means a limited access arrangement or full
access arrangement that has taken effect after being approved or made by the
AER under the Rules and includes an applicable access arrangement as
varied—
(a)
under the Rules; or
(b) by
an access determination as provided by this Law or the Rules;
applicable access arrangement decision means—
(a) a
full access arrangement decision; or
(b) a
limited access arrangement decision;
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 5;
associate pipeline service means a pipeline service provided by means of a
pipeline other than a pipeline to which a 15-year no coverage determination
applies;
Australian Energy Market Operator or AEMO means Australian Energy Market
Operator Limited (ACN 072 010 327);
BB Procedures means Procedures directed at regulating the Natural Gas Services
Bulletin Board;
Bulletin Board information means information that—
(a) a
person gives to AEMO to comply with section 223(1); or
(b) a
person gives to AEMO in its capacity as operator of the Natural Gas Services
Bulletin Board in circumstances expressly permitted by the Rules;
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 means—
(a) in
the case of a breach of a civil penalty provision by a natural person—
(i)
an amount not exceeding $20 000; and
(ii)
an amount not exceeding $2 000 for every day during
which the breach continues;
(b) in
the case of a breach of a civil penalty provision by a body corporate—
(i)
an amount not exceeding $100 000; and
(ii)
an amount not exceeding $10 000 for every day during
which the breach continues;
civil penalty provision has the meaning given by section 3;
classification decision under the Rules means a decision of the NCC under the
Rules that classifies either of the following pipelines as a cross boundary
transmission pipeline, cross boundary distribution pipeline, transmission
pipeline or a distribution pipeline:
(a) a
pipeline in respect of which a tender approval decision becomes irrevocable by
operation of the Rules;
(b) a
pipeline—
(i)
by means of which a service provider intends to provide
pipeline services to which a full access arrangement voluntarily submitted to
the AER for approval by that provider will apply, if approved; and
(ii)
in respect of which the NCC has not previously made an
initial classification decision;
commission , in relation to a pipeline, has the meaning given by
section 12;
Commonwealth Minister means the Minister of the Commonwealth administering the
Australian Energy Market Act 2004 of the Commonwealth;
conduct provision has the meaning given by section 4;
coverage determination means a determination of a relevant Minister under
Chapter 3 Part 1 Division 1;
coverage recommendation means a recommendation of the NCC under Chapter 3 Part
1 Division 1;
coverage revocation determination means a determination of a relevant Minister
under Chapter 3 Part 1 Division 2;
coverage revocation recommendation means a recommendation of the NCC under
Chapter 3 Part 1 Division 2;
covered pipeline means a pipeline—
(a) to
which a coverage determination applies; or
(b)
deemed to be a covered pipeline by operation of section 126 or 127;
covered pipeline service provider means a service provider that provides or
intends to provide pipeline services by means of a covered pipeline;
cross boundary distribution pipeline means a distribution pipeline that is
partly situated in the jurisdictional areas of 2 or more participating
jurisdictions;
cross boundary transmission pipeline means a transmission pipeline that is
partly situated in the jurisdictional areas of 2 or more participating
jurisdictions;
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 natural gas
defined in the application Act of an adoptive jurisdiction;
designated pipeline means a pipeline classified by the Regulations, or
designated in the application Act of a participating jurisdiction, as a
designated pipeline;
Note—
A light regulation determination cannot be made in respect of pipeline
services provided by means of a designated pipeline: see sections 109 and
111.
developable capacity means the difference between the current capacity of a
covered pipeline and the capacity of a covered pipeline which would be
available if a new facility was constructed, but does not include any new
capacity of a covered pipeline resulting from an extension to the geographic
range of a covered pipeline;
dispute resolution body means the AER;
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 is classified in accordance with
this Law or the Rules as a distribution pipeline and includes any extension
to, or expansion of the capacity of, such a pipeline when it is a covered
pipeline that, by operation of an applicable access arrangement or under this
Law, is to be treated as part of the pipeline;
Note—
See also sections 18 and 19.
draft Rule determination means a determination of the AEMC under
section 308;
end user means a person who acquires natural gas or proposes to acquire
natural gas for consumption purposes;
ERA means the Economic Regulation Authority established by section 4 of the
Economic Regulation Authority Act 2003 of Western Australia;
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, or expansion of
the capacity of, a covered pipeline is to be treated as forming part of the
covered pipeline; and
(ii)
whether the pipeline services provided or to be provided
by means of, or in connection with, spare capacity arising out of an extension
to, or expansion of the capacity of, a covered pipeline will be subject to the
applicable access arrangement applying to the pipeline services to which that
arrangement applies; and
(iii)
whether an extension to, or expansion of the capacity of,
a covered pipeline will affect a reference tariff, and if so, the effect on
the reference tariff; and
(b) any
other requirements specified by the Rules as extension and expansion
requirements;
Note—
See also sections 18 and 19.
final Rule determination means a determination of the AEMC under
section 311;
foreign company has the same meaning as in the Corporations Act 2001 of the
Commonwealth;
foreign source means—
(a) a
source beyond the outer limits of all of the following:
(i)
the adjacent area of this jurisdiction;
(ii)
the adjacent area of another participating jurisdiction;
or
(b) a
source within the joint petroleum development area (within the meaning of the
Petroleum (Timor Sea Treaty) Act 2003 of the Commonwealth);
former gas market operator means any of the following:
(a)
VENCorp;
(b) Gas
Market Company Limited (ACN 095 400 258);
(c) in
relation to South Australia (but not Western Australia)—Retail Energy
Market Company Limited (ACN 103 318 556);
(d) the
gas retail market operator appointed under section 257A of the
Gas Supply Act 2003 (Qld);
form of regulation factors has the meaning given by section 16;
full access arrangement means an access arrangement that—
(a)
provides for price or revenue regulation as required by the Rules; and
(b)
deals with all other matters for which the Rules require provision to be made
in an access arrangement;
full access arrangement decision means a decision of the AER under the Rules
that—
(a)
approves or does not approve a full access arrangement or revisions to an
applicable access arrangement submitted to the AER under section 132 or
the Rules; or
(b)
makes a full access arrangement—
(i)
in place of a full access arrangement the AER does not
approve in that decision; or
(ii)
because a service provider does not submit a full access
arrangement in accordance with section 132 or the Rules;
(c)
makes revisions to an access arrangement—
(i)
in place of revisions submitted to the AER under
section 132 that the AER does not approve in that decision; or
(ii)
because a service provider does not submit revisions to
the AER under section 132;
Gas Code means the National Third Party Access Code for Natural Gas Pipeline
Systems set out in Schedule 2 to the Gas Pipelines Access (South Australia)
Act 1997 of South Australia as in force from time to time before the
commencement of section 20 of the National Gas (South Australia) Act 2008
of South Australia;
gas statement of opportunities means the statement published under Chapter 2
Part 6 Division 4;
general market information order means an order under section 91F(1)(a)
requiring information from persons of a class specified in the order;
general regulatory information order has the meaning given by section 45;
greenfields pipeline incentive means—
(a) a
15-year no-coverage determination; or
(b) a
price regulation exemption;
haulage , in relation to natural gas, includes conveyance or reticulation of
natural gas;
initial classification decision means a decision of the NCC under
section 98 or 155;
initial National Gas Procedures means National Gas Procedures made under
section 294A and includes Wholesale Market Procedures and BB Procedures
in force immediately before the commencement of the National Gas (South
Australia) (National Gas Law—Australian Energy Market Operator)
Amendment Act 2009 ;
initial National Gas Rules means the National Gas Rules made under
section 294, 294A or 294B;
international pipeline means a pipeline for the haulage of gas from a foreign
source;
jurisdictional determination criteria , in relation to a cross boundary
distribution pipeline, has the meaning given by section 14;
jurisdictional gas legislation means an Act of a participating jurisdiction
(other than national gas legislation), or any instrument made or issued under
or for the purposes of that Act, that regulates the haulage of gas in that
jurisdiction;
jurisdictional regulator means—
(a) for
New South Wales—the Independent Pricing and Regulatory Tribunal of New
South Wales established by section 5(1) of the Independent Pricing and
Regulatory Tribunal Act 1992 of New South Wales;
(b) for
Victoria—the Essential Services Commission established by
section 7(1) of the Essential Services Commission Act 2001 of Victoria;
(c) for
Queensland—the Queensland Competition Authority established by
section 7 of the Queensland Competition Authority Act 1997 of Queensland;
(d) for
South Australia—the Essential Services Commission established by
section 4(1) of the Essential Services Commission Act 2002 of South
Australia;
(e) for
Tasmania—the Director of Gas appointed under section 7 of the Gas
Act 2000 of Tasmania;
(f) for
the Australian Capital Territory—the Independent Competition and
Regulatory Commission for the Australian Capital Territory established by
section 5(1) of the Independent Competition and Regulatory Commission Act
1997 of the Australian Capital Territory;
(g) any
other person or body—
(i)
to which the functions of the jurisdictional regulator
for a participating jurisdiction are assigned by or under an Act of the
participating jurisdiction; or
(ii)
that is prescribed by the Regulations as jurisdictional
regulator of a participating jurisdiction;
light regulation determination means a determination of the NCC under Chapter
3 Part 2 Division 1;
light regulation services means pipeline services to which a light regulation
determination applies;
limited access arrangement means an access arrangement that, under this Law
and the Rules, is not required to make provision for price or revenue
regulation but deals with the matters for which this Law and the Rules require
provision to be made in an access arrangement;
limited access arrangement decision means a decision of the AER under the
Rules that approves or does not approve—
(a) a
limited access arrangement submitted to the AER under section 116 or 168;
or
(b)
revisions to a limited access arrangement submitted to the AER under
section 116(3) or 168(3) or the Rules;
market information instrument means a general market information order or a
market information notice;
market information notice means a notice under section 91F(1)(b)
requiring information from the person to whom the notice is addressed;
market operator service means a service classified under the Rules as a market
operator service;
MCE means the Ministerial Council on Energy established on 8 June 2001, being
the Council of Ministers with primary carriage of energy matters at a national
level comprising the Ministers representing the Commonwealth, the States, the
Australian Capital Territory and the Northern Territory, acting in accordance
with its own procedures;
MCE directed review means a review conducted by the AEMC under Chapter 2
Part 2 Division 4;
MCE statement of policy principles means a statement of policy principles
issued by the MCE under section 25;
minimum ring fencing requirement means a requirement under Chapter 4 Part 2
Division 2;
Ministerial Gazette notice means a notice in the South Australian Government
Gazette published by the South Australian Minister on the recommendation of
the MCE;
Minister of a participating jurisdiction means a Minister who is a Minister of
a participating jurisdiction within the meaning of section 22;
Ministerial coverage decision means—
(a) a
decision of a relevant Minister under section 99, 106 or 156; or
(b) a
decision of the Commonwealth Minister under section 164;
national gas legislation means—
(a) the
National Gas (South Australia) Act 2008 of South Australia and
Regulations in force under that Act; and
(b) the
National Gas (South Australia) Law ; and
(c) the
National Gas Access (WA) Act 2009 of Western Australia; and
(d) the
National Gas Access (Western Australia) Law within the meaning given in the
National Gas Access (WA) Act 2009 of Western Australia; and
(e)
Regulations made under the National Gas Access (WA) Act 2009 of Western
Australia for the purposes of the National Gas Access (Western Australia) Law;
and
(f) an
Act of a participating jurisdiction (other than South Australia or Western
Australia) that applies, as a law of that jurisdiction, any part of—
(i)
the Regulations referred to in paragraph (a); or
(ii)
the National Gas Law set out in the Schedule to the
National Gas (South Australia) Act 2008 of South Australia; and
(g) the
National Gas Law set out in the Schedule to the National Gas (South
Australia) Act 2008 of South Australia as applied as a law of a
participating jurisdiction (other than South Australia or Western Australia);
and
(h) the
Regulations referred to in paragraph (a) as applied as a law of a
participating jurisdiction (other than South Australia or Western Australia);
national gas objective means the objective set out in section 23;
National Gas Procedures or Procedures means—
(a) the
initial National Gas Procedures; and
(b)
Procedures made by AEMO under this Law, including Procedures that amend or
revoke the initial National Gas Procedures or Procedures earlier made by AEMO;
National Gas Rules or Rules means—
(a) the
initial National Gas Rules; and
(b)
Rules made by the AEMC under this Law, including Rules that amend or
revoke—
(i)
the initial National Gas Rules; or
(ii)
Rules made by it;
natural gas means a substance that—
(a) is
in a gaseous state at standard temperature and pressure; and
(b)
consists of naturally occurring hydrocarbons, or a naturally occurring mixture
of hydrocarbons and non-hydrocarbons, the principal constituent of which is
methane; and
(c) is
suitable for consumption;
natural gas service means—
(a) a
pipeline service; or
(b) the
supply of natural gas; or
(c) a
service ancillary to the service described in paragraph (b);
Natural Gas Services Bulletin Board means the website maintained by AEMO that
contains information of the kind specified in the Rules in relation to natural
gas services;
NCC means the National Competition Council established by section 29A of the
Trade Practices Act 1974 of the Commonwealth;
NCC recommendation or decision means—
(a) a
coverage recommendation; or
(b) a
coverage revocation recommendation; or
(c) a
no-coverage recommendation; or
(d) a
price regulation exemption recommendation; or
(e) a
reclassification decision; or
(f) a
light regulation determination; or
(g) a
decision of the NCC under Chapter 3 Part 2 Division 2 to revoke a light
regulation determination; or
(h) a
decision of the NCC not to make a decision referred to in paragraph (f)
or (g); or
(i)
advice under section 172;
new facility means an extension to, or expansion of the capacity of, a covered
pipeline which is to be treated as part of the covered pipeline—
(a) in
accordance with the extension and expansion requirements contained in an
applicable access arrangement applying to the pipeline services provided by
means of that covered pipeline; or
(b)
under this Law;
Note—
See also sections 18 and 19.
no-coverage recommendation means a recommendation of the NCC under Chapter 5
Part 2;
non scheme pipeline user means a person who—
(a) is a
party to a contract with a service provider under which the service provider
provides or intends to provide a pipeline service to that person by means of a
pipeline that is not a scheme pipeline; or
(b) has
a right under an access determination to be provided with a pipeline service
by means of a pipeline that is not a scheme pipeline;
offence provision means a provision of this Law the breach or contravention of
which by a person exposes that person to a finding of guilt by a court;
officer has the same meaning as officer has in relation to a corporation under
section 9 of the Corporations Act 2001 of the Commonwealth;
old access law means Schedule 1 to the Gas Pipelines Access (South Australia)
Act 1997 of South Australia as in force from time to time before the
commencement of section 20 of the National Gas (South Australia) Act 2008
of South Australia;
old scheme classification or determination means a classification or
determination under section 10 or 11 of the old access law in force at any
time before the repeal of the old access law;
old scheme distribution pipeline means a pipeline that was, at any time before
the repeal of the old access law—
(a) a
distribution pipeline as defined in that law; and
(b) a
covered pipeline as defined in the Gas Code;
old scheme transmission pipeline means a pipeline that was, at any time before
the repeal of the old access law—
(a) a
transmission pipeline as defined in that law; and
(b) a
covered pipeline as defined in the Gas Code;
participating jurisdiction means a jurisdiction that is a participating
jurisdiction by reason of section 21;
pipeline means—
(a) a
pipe or system of pipes for the haulage of natural gas, and any tanks,
reservoirs, machinery or equipment directly attached to that pipe or system of
pipes; or
(b) a
proposed pipe or system of pipes for the haulage of natural gas, and any
proposed tanks, reservoirs, machinery or equipment proposed to be directly
attached to the proposed pipe or system of pipes; or
(c) a
part of a pipe or system of pipes or proposed pipe or system of pipes referred
to in paragraph (a) or (b),
but does not include—
(d)
unless paragraph (e) applies, anything upstream of a prescribed exit
flange on a pipeline conveying natural gas from a prescribed gas processing
plant; or
(e) if a
connection point upstream of an exit flange on such a pipeline is prescribed,
anything upstream of that point; or
(f) a
gathering system operated as part of an upstream producing operation; or
(g) any
tanks, reservoirs, machinery or equipment used to remove or add components to
or change natural gas (other than odourisation facilities) such as a gas
processing plant; or
(h)
anything downstream of a point on a pipeline from which a person takes natural
gas for consumption purposes;
pipeline classification criterion has the meaning given by section 13;
pipeline coverage criteria has the meaning given by section 15;
pipeline reliability standard means a standard imposed by or under an Act of a
participating jurisdiction, or any instrument made or issued under or for the
purposes of that Act, relating to the reliable haulage of natural gas in that
jurisdiction;
pipeline safety duty means a duty or requirement under an Act of a
participating jurisdiction, or any instrument made or issued under or for the
purposes of that Act, relating to—
(a) the
safe haulage of natural gas in that jurisdiction; or
(b) the
safe operation of a pipeline in that jurisdiction;
pipeline service means—
(a) a
service provided by means of a pipeline, including—
(i)
a haulage service (such as firm haulage, interruptible
haulage, spot haulage and backhaul); and
(ii)
a service providing for, or facilitating, the
interconnection of pipelines; and
(b) a
service ancillary to the provision of a service referred to in
paragraph (a),
but does not include the production, sale or purchase of natural gas or
processable gas;
pipeline service standard means a standard relating to the standard of the
pipeline services provided by a service provider by means of a covered
pipeline imposed—
(a) by
or under jurisdictional gas legislation; or
(b) by
the AER—
(i)
under an access arrangement decision; or
(ii)
in accordance with the Rules;
price or revenue regulation means regulation of—
(a) the
prices, charges or tariffs for pipeline services to be, or that are to be,
provided; or
(b) the
revenue to be, or that is to be, derived from the provision of pipeline
services;
price regulation exemption means an exemption under Chapter 5 Part 3;
price regulation exemption recommendation means a recommendation of the NCC
under section 162;
processable gas means a substance that—
(a) is
in a gaseous state at standard temperature and pressure; and
(b)
consists of naturally occurring hydrocarbons, or a naturally occurring mixture
of hydrocarbons and non-hydrocarbons, the principal constituent of which is
methane;
producer means a person who carries on a business of producing natural gas;
prospective user has the meaning given by section 5;
protected information has the meaning given by section 91G;
queuing requirements means terms and conditions providing for the priority
that a prospective user has, as against any other prospective user, to obtain
access to spare capacity and developable capacity;
reclassification decision means a decision of the NCC under Chapter 3
Part 5;
recognised energy industry ombudsman means a body or person classified by
Regulation as a recognised energy industry ombudsman;
reference service means a pipeline service specified by, or determined or
approved by the AER under, the Rules as a reference service;
reference tariff means a tariff or charge for a reference service—
(a)
specified in an applicable access arrangement approved or made under a full
access arrangement decision; or
(b)
determined by applying the formula or methodology contained in an applicable
access arrangement approved or made under a full access arrangement decision;
Registered participant means a person registered as such by AEMO under this
Law (section 91BJ, section 91BRD or section 91LB) and the
Rules;
regulated gas market means—
(a) a
declared wholesale gas market; or
(ab) a
short term trading market; or
(b) a
regulated retail gas market;
regulated retail gas market has the meaning given by section 91L(2);
Regulations means the regulations made under Part 3 of the
National Gas (South Australia) Act 2008 of South Australia that apply as
a law of this jurisdiction;
regulatory information instrument means—
(a) a
general regulatory information order; or
(b) a
regulatory information notice;
regulatory information notice has the meaning given by section 46;
regulatory obligation or requirement has the meaning given by section 6;
regulatory payment has the meaning given by section 7;
relevant Minister means if, in a coverage recommendation, no-coverage
recommendation, classification decision under the Rules or reclassification
decision, the NCC determines the pipeline is—
(a) a
cross boundary transmission pipeline—the Commonwealth Minister;
(b) a
transmission pipeline situated wholly within a participating
jurisdiction—the designated Minister;
Note—
The term designated Minister is defined in the Act of this jurisdiction that
applies this Law as a law of this jurisdiction.
(c) a
distribution pipeline situated wholly within a participating
jurisdiction—the Minister of the participating jurisdiction;
(d) a
cross boundary distribution pipeline—the Minister of the participating
jurisdiction determined by the NCC in the recommendation as being the
participating jurisdiction with which the cross boundary distribution pipeline
is most closely connected;
relevant Regulator has the same meaning as in section 2 of the old access law;
REMCo means the Retail Energy Market Company Limited
(ACN 103 318 556);
retail gas market has the meaning given by section 91L(1);
Retail Market Procedures means Procedures directed at regulating a retail gas
market;
revenue and pricing principles means the principles set out in
section 24;
ring fencing decision means—
(a) an
AER ring fencing determination; or
(b) a
decision under section 146 granting or not granting an exemption under
that section; or
(c) an
associate contract decision;
rule dispute means a dispute for the resolution of which provision is made in
the Rules;
scheme pipeline means—
(a) a
covered pipeline; or
(b) an
international pipeline to which a price regulation exemption applies;
service provider has the meaning given by section 8;
service provider performance report means a report prepared by the AER under
section 64;
short term trading market means a market for the supply of natural gas
that—
(a)
operates in an adoptive jurisdiction; and
(b) is
defined in a Rule made for the purposes of Chapter 2 Part 6
Division 2A to be a short term trading market of that adoptive
jurisdiction;
Note—
There may be more than 1 short term trading market of an adoptive
jurisdiction.
spare capacity means unutilised capacity of a pipeline;
statutory functions , in relation to AEMO, means functions or powers conferred
under—
(a) this
Law, the Rules or the Procedures; or
(b) the
National Electricity Law or the National Electricity Rules;
storage provider means any person who owns, operates or controls a facility
for storing natural gas or processable gas for injection into a pipeline;
STTM amendments means—
(a) the
amendments to this Law made by the National Gas (South Australia) (Short Term
Trading Market) Amendment Act 2009 of South Australia; and
(b) the
amendments to the Rules made under section 294B; and
(c) the
STTM Procedures first made under this Law after the enactment of the
amendments referred to in paragraph (a);
STTM functions —AEMO's STTM functions are as set out in
section 91BRB;
STTM hub means a point or points, situated in an adoptive jurisdiction,
specified in the Rules or STTM Procedures, at which a short term trading
market operates;
STTM information means information that—
(a) a
person gives to AEMO, to comply with section 91FEA(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 short term
trading market in which the person participates;
(ii)
to AEMO in its capacity as operator of another regulated
gas market if that information is to be used for the purpose of a short term
trading market in which the person participates;
STTM Procedures means Procedures directed at regulating a short term trading
market;
STTM trading participant means a person referred to in section 91BRC;
superseded jurisdictional rules means—
(a)
legislation (including subordinate legislation) of a participating
jurisdiction regulating the gas industry in that jurisdiction that—
(i)
was in force immediately before the relevant changeover
date; and
(ii)
is superseded by the AEMO amendments; and
(b)
rules to which a member of a corporate former gas market operator was subject,
immediately before the relevant changeover date, under the constitution of the
former gas market operator; and
(c) a
licence condition governing the activities of the licensee in, or in relation
to, a regulated retail gas market in a participating jurisdiction—
(i)
in force immediately before the relevant changeover date;
and
(ii)
superseded by the AEMO amendments; and
(d) a
guideline, code, standard or other instrument governing the operation or
regulation of a gas market in a participating jurisdiction—
(i)
made or issued by the jurisdictional regulator; and
(ii)
in force immediately before the relevant changeover date;
and
(iii)
superseded by the AEMO amendments;
Examples—
1 The Gas Market Retail Rules (Vic) and the Gas
Industry Market and System Operation Rules (Vic).
2 The Gas Retail Market Business Rules to Support
Retail Competition in Gas (NSW).
3 The Gas Market Retail Rules (Qld).
4 The Retail Market Rules (SA).
supply includes—
(a) in
relation to goods—supply (including re-supply) by way of sale, exchange,
lease, hire or hire purchase; and
(b) in
relation to services—provide, grant or confer;
tariff means a rate by which a charge for a pipeline service is calculated;
tender approval decision means a decision of the AER under the Rules under
which the AER approves a tender process for the construction and operation of
a pipeline as a competitive tender process;
Territory means the Australian Capital Territory or the Northern Territory;
trader means a person who—
(a) buys
or sells natural gas; and
(b) in
doing so is not acting in some other registrable capacity; and
(c)
where the person is the purchaser of natural gas, is not buying the natural
gas for the purchaser’s own use;
transmission pipeline means a pipeline that is classified in accordance with
this Law or the Rules as a transmission pipeline and includes any extension
to, or expansion of the capacity of, such a pipeline when it is a covered
pipeline that, by operation of an applicable access arrangement or under this
Law, is to be treated as part of the pipeline;
Note—
See also sections 18 and 19.
Tribunal means the Australian Competition Tribunal referred to in the
Trade Practices Act 1974 of the Commonwealth and includes a member of the
Tribunal or a Division of the Tribunal performing functions of the Tribunal;
user means a person who—
(a) is a
party to a contract with a service provider under which the service provider
provides or intends to provide a pipeline service to that person by means of a
scheme pipeline; or
(b) has
a right under an access determination to be provided with a pipeline service
by means of a scheme pipeline;
VENCorp means the Victorian Energy Networks Corporation continued under
Part 8 of the Gas Industry Act 2001 of Victoria until the AEMO amendments
come into force;
Wholesale Market Procedures means Procedures directed at regulating the
declared wholesale gas market of an adoptive jurisdiction.
3—Meaning of civil penalty provision
A civil penalty provision is—
(a) a
provision of this Law specified in an item in the Table at the foot of this
section; or
(b) a
provision of this Law (other than an offence provision) or the Rules that is
prescribed by the Regulations to be a civil penalty provision; or
(c) a
declared system provision that is prescribed by or under the application Act
of the adoptive jurisdiction to be a civil penalty provision.
Table
|
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 91FEA |
|
2E |
Section 91FC(3) and (4) |
|
2F |
Section 91LB(1) |
|
2G |
Section 91MB(6) |
|
3 |
Section 131 |
|
4 |
Section 133 |
|
5 |
Section 134 |
|
6 |
Section 135 |
|
7 |
Section 136 |
|
8 |
Section 139 |
|
9 |
Section 140 |
|
10 |
Section 141 |
|
11 |
Section 143(6) |
|
12 |
Section 147 |
|
13 |
Section 148 |
|
14 |
Section 168 |
|
15 |
Section 169(3) |
|
16 |
Section 170 |
|
17 |
Section 195 |
|
18 |
Section 223 |
|
19 |
Section 225 |
4—Meaning of conduct provision
A conduct provision is—
(a) a
provision of this Law specified in an item in the Table at the foot of this
section; or
(b) a
provision of this Law (other than an offence provision) or the Rules that is
prescribed by the Regulations to be a conduct provision; or
(c) a
declared system provision that is prescribed by or under the application Act
of the adoptive jurisdiction to be a conduct provision.
Table
|
Item |
Provision |
|---|---|
|
A1 |
Section 91BP |
|
A2 |
Section 91BRF |
|
A3 |
Section 91BRG |
|
1 |
Section 133 |
|
2 |
Section 134 |
|
3 |
Section 135 |
|
4 |
Section 136 |
|
5 |
Section 147 |
|
6 |
Section 148 |
|
7 |
Section 170 |
5—Meaning of prospective user
(1) A prospective user
is a person who seeks or wishes to be provided with a pipeline service by
means of a scheme pipeline.
(2) To avoid doubt, a
user is also a prospective user if the user seeks or wishes to be provided
with a pipeline service by means of a scheme pipeline other than a pipeline
service already provided to them under—
(a) a
contract; or
(b) an
access determination.
6—Meaning of regulatory obligation or requirement
(1) A regulatory
obligation or requirement is—
(a) in
relation to the provision of a pipeline service by a service provider—
(i)
a pipeline safety duty; or
(ii)
a pipeline reliability standard; or
(iii)
a pipeline service standard; or
(b) an
obligation or requirement under—
(i)
this Law or the Rules; or
(ii)
an Act of a participating jurisdiction, or any instrument
made or issued under or for the purposes of that Act, that levies or imposes a
tax or other levy that is payable by a service provider; or
(iii)
an Act of a participating jurisdiction, or any instrument
made or issued under or for the purposes of that Act, that regulates the use
of land in a participating jurisdiction by a service provider; or
(iv)
an Act of a participating jurisdiction or any instrument
made or issued under or for the purposes of that Act that relates to the
protection of the environment; or
(v)
an Act of a participating jurisdiction, or any instrument
made or issued under or for the purposes of that Act (other than national gas
legislation or an Act of a participating jurisdiction or an Act or instrument
referred to in subparagraphs (ii) to (iv)), that materially affects the
provision, by a service provider, of pipeline services to which an applicable
access arrangement applies.
(2) A regulatory
obligation or requirement does not include an obligation or requirement to pay
a fine, penalty or compensation—
(a) for
a breach of—
(i)
a pipeline safety duty; or
(ii)
a pipeline reliability standard; or
(iii)
a pipeline service standard; or
(b)
under this Law or the Rules or an Act or an instrument referred to in
subsection (1)(b)(ii) to (v).
Note—
See also section 24(2)(b).
7—Meaning of regulatory payment
A regulatory payment is a sum that a service provider had been required or
allowed to pay to a user or an end user for a breach of, as the case
requires—
(a) a
pipeline reliability standard; or
(b) a
pipeline service standard,
because it was efficient for the service provider (in terms of the service
provider's overall business) to pay that sum.
Note—
See also section 24(2)(b).
8—Meaning of service provider
(1) A service provider
is a person who—
(a)
owns, controls or operates; or
(b)
intends to own, control or operate,
a pipeline or scheme pipeline, or any part of a pipeline or scheme pipeline.
Note—
A service provider must not provide pipeline services by means of a scheme
pipeline unless the service provider is a legal entity of a specified kind:
see section 131, and section 169 where the scheme pipeline is an
international pipeline to which a price regulation exemption applies.
(2) If AEMO controls
or operates (without at the same time owning) a pipeline or scheme pipeline,
or any part of a pipeline or scheme pipeline, AEMO is not for that reason to
be taken to be a service provider for the purposes of this Law.
9—Passive owners of scheme pipelines deemed to provide or intend to
provide pipeline services
(1) This section
applies to a person who owns a scheme pipeline but does not provide or intend
to provide pipeline services by means of that pipeline.
(2) The person is, for
the purposes of this Law, deemed to provide or intend to provide pipeline
services by means of that pipeline even if the person does not, in fact, do
so.
10—Things done by 1 service provider to be treated as being done by all
of service provider group
(1) This section
applies if—
(a) more
than 1 service provider (a service provider group ) carries out a controlling
pipeline activity in respect of a pipeline (or a part of a pipeline); and
(b)
under this Law or the Rules a service provider is required or allowed to do a
thing.
(2) A service provider
of the service provider group (the complying service provider ) may do that
thing on behalf of the other service providers of the service provider group
if the complying service provider has the written permission of all of the
service providers of that group to do that thing on behalf of the service
provider group.
(3) Unless this Law or
the Rules otherwise provide, on the doing of a thing referred to in
subsection (2) by a complying service provider, the service providers of
the service provider group on whose behalf the complying service provider does
that thing, must, for the purposes of this Law and the Rules, each be taken to
have done the thing done by the complying service provider.
(4) This section does
not apply to a thing required or allowed to be done under section 131 or
Chapter 4 Part 2.
(5) In this
section—
controlling pipeline activity means own, control or operate.
11—Local agents of foreign service providers
(1) This section
applies if—
(a) a
service provider is a foreign company; and
(b) the
service provider has, under the Corporations Act 2001 of the Commonwealth,
appointed a local agent within the meaning of that Act.
(2) The local
agent—
(a) is
answerable for the doing of all acts, matters and things the service provider
is required by or under this Law to do; and
(b) is
personally liable to a penalty imposed on the service provider for a breach of
a provision of this Law or the Rules if a court hearing the matter is
satisfied that the local agent should be so liable.
12—Commissioning of a pipeline
A pipeline is commissioned when the pipeline is first used for the haulage of
natural gas, on a commercial basis.
13—Pipeline classification criterion
(1) The pipeline
classification criterion is whether the primary function of the pipeline is
to—
(a)
reticulate gas within a market (which is the primary function of a
distribution pipeline); or
(b)
convey gas to a market (which is the primary function of a transmission
pipeline).
(2) Without limiting
subsection (1), in determining the primary function of the pipeline,
regard must also be had to whether the characteristics of the pipeline are
those of a transmission pipeline or distribution pipeline having regard
to—
(a) the
characteristics and classification of, as the case requires, an old scheme
transmission pipeline or an old scheme distribution pipeline;
(b) the
characteristics of, as the case requires, a transmission pipeline or a
distribution pipeline classified under this Law;
(c) the
characteristics and classification of pipelines specified in the Rules (if
any);
(d) the
diameter of the pipeline;
(e) the
pressure at which the pipeline is or will be designed to operate;
(f) the
number of points at which gas can or will be injected into the pipeline;
(g) the
extent of the area served or to be served by the pipeline;
(h) the
pipeline's linear or dendritic configuration.
14—Jurisdictional determination criteria—cross boundary
distribution pipelines
The pipeline jurisdictional determination criteria are—
(a)
whether more gas is to be delivered by a cross boundary distribution pipeline
in the jurisdictional area of 1 participating jurisdiction than in the
jurisdictional area of any other participating jurisdiction;
(b)
whether more customers to be served by a cross boundary distribution pipeline
are resident in the jurisdictional area of 1 participating jurisdiction than
in the jurisdictional area of any other participating jurisdiction;
(c)
whether more of the network for a cross boundary distribution pipeline is in
the jurisdictional area of 1 participating jurisdiction than in the
jurisdictional area of any other participating jurisdiction;
(d)
whether 1 participating jurisdiction has greater prospects for growth in the
gas market served or to be served by a cross boundary distribution pipeline
than any other participating jurisdiction;
(e)
whether the regional economic benefits from competition are likely to be
greater for 1 participating jurisdiction than for any other participating
jurisdiction.
15—Pipeline coverage criteria
The pipeline coverage criteria are—
(a) that
access (or increased access) to pipeline services provided by means of the
pipeline would promote a material increase in competition in at least 1 market
(whether or not in Australia), other than the market for the pipeline services
provided by means of the pipeline;
(b) that
it would be uneconomic for anyone to develop another pipeline to provide the
pipeline services provided by means of the pipeline;
(c) that
access (or increased access) to the pipeline services provided by means of the
pipeline can be provided without undue risk to human health or safety;
(d) that
access (or increased access) to the pipeline services provided by means of the
pipeline would not be contrary to the public interest.
16—Form of regulation factors
The form of regulation factors are—
(a) the
presence and extent of any barriers to entry in a market for pipeline
services;
(b) the
presence and extent of any network externalities (that is, interdependencies)
between a natural gas service provided by a service provider and any other
natural gas service provided by the service provider;
(c) the
presence and extent of any network externalities (that is, interdependencies)
between a natural gas service provided by a service provider and any other
service provided by the service provider in any other market;
(d) the
extent to which any market power possessed by a service provider is, or is
likely to be, mitigated by any countervailing market power possessed by a user
or prospective user;
(e) the
presence and extent of any substitute, and the elasticity of demand, in a
market for a pipeline service in which a service provider provides that
service;
(f) the
presence and extent of any substitute for, and the elasticity of demand in a
market for, electricity or gas (as the case may be);
(g) the
extent to which there is information available to a prospective user or user,
and whether that information is adequate, to enable the prospective user or
user to negotiate on an informed basis with a service provider for the
provision of a pipeline service to them by the service provider.
17—Effect of separate and consolidated access arrangements in certain
cases
(1) This section
applies despite anything to the contrary in this Law.
(2) If, under this Law
and the Rules, separate access arrangements are approved in an applicable
access arrangement decision for pipeline services provided, or to be provided,
by means of different parts of a covered pipeline, each part of the covered
pipeline—
(a) by
which pipeline services are provided; and
(b) to
which each separate applicable access arrangement applies,
must to be taken to be a separate covered pipeline for the purposes of this
Law.
(3) If under this Law
and the Rules, a single access arrangement is approved in an applicable access
arrangement decision for pipeline services provided, or to be provided, by
means of 2 or more covered pipelines, those pipelines must be taken to be a
single covered pipeline for the purposes of this Law.
18—Certain extensions to, or expansion of the capacity of, pipelines to
be taken to be part of a covered pipeline
For the purposes of this Law—
(a) an
extension to, or expansion of the capacity of, a covered pipeline must be
taken to be part of the covered pipeline; and
(b) the
pipeline as extended or expanded must be taken to be a covered pipeline,
if, by operation of the extension and expansion requirements under an
applicable access arrangement, the applicable access arrangement will apply to
pipeline services provided by means of the covered pipeline as extended or
expanded.
19—Expansions of and extensions to covered pipeline by which light
regulation services are provided
For the purposes of this Law, an extension to, or expansion of the capacity
of, a covered pipeline by means of which light regulation services (and in
respect of which there is no limited access arrangement) are provided, must be
taken to be part of the covered pipeline unless the AER determines otherwise
in writing.
20—Interpretation generally
Schedule 2 to this Law applies to this Law, the Regulations and the Rules and
any other statutory instrument made under this Law.
Part 2—Participating jurisdictions
21—Participating jurisdictions
The State of South Australia, the Commonwealth, each of the States of New
South Wales, Victoria, Queensland, Western Australia and Tasmania, and the
Australian Capital Territory and the Northern Territory are participating
jurisdictions for the purposes of this Law.
22—Ministers of participating jurisdictions
The Ministers of the participating jurisdictions are—
(a) the
Minister of the Crown in right of South Australia administering Part 2 of the
National Gas (South Australia) Act 2008 of South Australia; and
(b) the
Minister of the Crown in right of Western Australia administering the
National Gas Access (WA) Act 2009 of Western Australia; and
(c) the
Minister of the Crown in right of the Commonwealth administering the
Australian Energy Market Act 2004 of the Commonwealth; and
(d) the
Ministers of the Crown in right of the other participating jurisdictions
administering the laws of those jurisdictions that substantially correspond to
Part 2 of the National Gas (South Australia) Act 2008 of South
Australia.
Part 3—National gas objective and principles
Division 1—National gas objective
23—National gas objective
The objective of this Law is to promote efficient investment in, and efficient
operation and use of, natural gas services for the long term interests of
consumers of natural gas with respect to price, quality, safety, reliability
and security of supply of natural gas.
Division 2—Revenue and pricing principles
24—Revenue and pricing principles
(1) The revenue and
pricing principles are the principles set out in subsections (2) to (7).
(2) A service provider
should be provided with a reasonable opportunity to recover at least the
efficient costs the service provider incurs in—
(a)
providing reference services; and
(b)
complying with a regulatory obligation or requirement or making a regulatory
payment.
(3) A service provider
should be provided with effective incentives in order to promote economic
efficiency with respect to reference services the service provider provides.
The economic efficiency that should be promoted includes—
(a)
efficient investment in, or in connection with, a pipeline with which the
service provider provides reference services; and
(b) the
efficient provision of pipeline services; and
(c) the
efficient use of the pipeline.
(4) Regard should be
had to the capital base with respect to a pipeline adopted—
(a) in
any previous—
(i)
full access arrangement decision; or
(ii)
decision of a relevant Regulator under section 2 of the
Gas Code;
(b) in
the Rules.
(5) A reference tariff
should allow for a return commensurate with the regulatory and commercial
risks involved in providing the reference service to which that tariff
relates.
(6) Regard should be
had to the economic costs and risks of the potential for under and over
investment by a service provider in a pipeline with which the service provider
provides pipeline services.
(7) Regard should be
had to the economic costs and risks of the potential for under and over
utilisation of a pipeline with which a service provider provides pipeline
services.
Division 3—MCE policy principles
25—MCE statements of policy principles
(1) Subject to this
section, the MCE may issue a statement of policy principles in relation to any
matters that are relevant to the exercise and performance by the AEMC of its
functions and powers in—
(a)
making a Rule; or
(b)
conducting a review under section 83.
(2) Before issuing a
statement of policy principles, the MCE must be satisfied that the statement
is consistent with the national gas objective.
(3) As soon as
practicable after issuing a statement of policy principles, the MCE must give
a copy of the statement to the AEMC.
(4) The AEMC must
publish the statement in the South Australian Government Gazette and on its
website as soon as practicable after it is given a copy of the statement.
Part 4—Operation and effect of National Gas Rules
26—National Gas Rules to have force of law
The National Gas Rules have the force of law in this jurisdiction.
Chapter 2—Functions and powers of gas market regulatory entities
Part 1—Functions and powers of the Australian Energy Regulator
Division 1—General
27—Functions and powers of the AER
(1) The AER has the
following functions and powers:
(a) to
monitor compliance by persons (including AEMO) with this Law, the Regulations
and the Rules, including compliance with an applicable access arrangement, an
access determination and a ring fencing decision; and
(b) to
investigate breaches or possible breaches of provisions of this Law, the
Regulations or the Rules, including offences against this Law; and
(c) to
institute and conduct proceedings in relation to breaches of provisions of
this Law, the Regulations or the Rules, including offences against this Law;
and
(d) to
institute and conduct appeals from decisions in proceedings referred to in
paragraph (c); and
(e) AER
economic regulatory functions or powers; and
(f) to
prepare and publish reports on the financial and operational performance of
service providers in providing pipeline services by means of covered
pipelines; and
(g) to
approve compliance programs of service providers relating to compliance by
service providers with this Law or the Rules; and
(h) any
other functions and powers conferred on it under this Law or the Rules.
(1a) The AER has the
following functions and powers in relation to the Procedures:
(a) to
investigate breaches or possible breaches of the Procedures referred to the
AER by AEMO; and
(b) to
institute and conduct proceedings in relation to breaches of the Procedures
referred to the AER by AEMO; and
(c) to
institute and conduct appeals from decisions in proceedings referred to in
paragraph (b); and
(d) to
approve, in consultation with AEMO, compliance programs relating to compliance
by Registered participants with the Procedures.
(2) The AER has the
power to do all things necessary or convenient to be done for or in connection
with the performance of its functions.
28—Manner in which AER must perform or exercise AER economic regulatory
functions or powers
(1) The AER must, in
performing or exercising an AER economic regulatory function or power, perform
or exercise that function or power in a manner that will or is likely to
contribute to the achievement of the national gas objective.
(a) must
take into account the revenue and pricing principles—
(i)
when exercising a discretion in approving or making those
parts of an access arrangement relating to a reference tariff; or
(ii)
when making an access determination relating to a rate or
charge for a pipeline service; and
(b) may
take into account the revenue and pricing principles when performing or
exercising any other AER economic regulatory function or power, if the AER
considers it appropriate to do so.
(3) For the purposes
of subsection (2)(a)(ii), a reference to a "reference service" in the
revenue and pricing principles must be read as a reference to a "pipeline
service".
29—Delegations
Any delegation by the AER under section 44AAH of the Trade Practices Act 1974
of the Commonwealth extends to, and has effect for the purposes of, this Law,
the Regulations and the Rules.
30—Confidentiality
Section 44AAF of the Trade Practices Act 1974 of the Commonwealth has effect
for the purposes of this Law, the Regulations and the Rules as if it formed
part of this Law.
Note—
See also Chapter 10 Part 2 Division 1.
Division 2—Search warrants
31—Definitions
In this Division—
authorised person means a person authorised under section 32;
relevant provision means a provision of this Law, the Regulations or the
Rules.
32—Authorised person
(1) The AER may, in
writing, authorise a person that the AER considers is suitably qualified or
trained to be an authorised person for the purposes of this Division.
(2) An authorised
person must comply with any direction of the AER in exercising powers or
functions as an authorised person.
33—Identity cards
(1) The AER must issue
an identity card to an authorised person.
(2) The identity card
must contain the name, a recent photograph and the signature of the authorised
person.
(3) An authorised
person must carry the identity card at all times when exercising powers or
performing functions as an authorised person.
(4) An authorised
person must produce his or her identity card for inspection—
(a)
before exercising a power as an authorised person; or
(b) at
any time during the exercise of a power as an authorised person, if asked to
do so.
34—Return of identity cards
If a person to whom an identity card has been issued ceases to be an
authorised person, the person must return the identity card to the AER as soon
as practicable.
Maximum penalty: $500
35—Search warrant
(1) An authorised
person may apply to a magistrate for the issue of a search warrant in relation
to a particular place if the person—
(a)
believes on reasonable grounds that—
(i)
there is or has been or will be a breach of a relevant
provision; and
(ii)
there is or may be a thing or things of a particular kind
connected with that breach on or in that place; or
(b)
reasonably suspects that—
(i)
there may have been a breach of a relevant provision; and
(ii)
there is or may be a thing or things of a particular kind
connected with that breach on or in that place.
(2) If a magistrate is
satisfied by the evidence, on oath or by affidavit, of an authorised person
that there are reasonable grounds for suspecting that there is, or may be
within the next 7 days, a thing or things of a particular kind connected with
a breach or possible breach of a relevant provision on or in a place, the
magistrate may issue a search warrant authorising an authorised person named
in the warrant—
(a) to
enter the place specified in the warrant, with such assistance and by the use
of such force as is necessary and reasonable;
(b) to
search the place or any part of the place;
(c) to
search for and seize a thing named or described in the warrant and which the
person believes on reasonable grounds to be connected with the breach or
possible breach of the relevant provision;
(d) to
inspect, examine or record an image of anything in the place;
(e) to
take extracts from, and make copies of, any documents in the place;
(f) to
take into the place such equipment and materials as the person requires for
exercising the powers.
(3) A search warrant
issued under this section must state—
(a) the
purpose for which the search is required and the nature of the suspected
breach of the relevant provision; and
(b) any
conditions to which the warrant is subject; and
(c)
whether entry is authorised to be made at any time of the day or night or
during stated hours of the day or night; and
(d) a
day, not later than 7 days after the issue of the warrant, on which the
warrant ceases to have effect.
(4) Except as provided
by this Law, the rules to be observed with respect to search warrants
mentioned in any relevant laws of this jurisdiction extend and apply to
warrants under this section.
36—Announcement of entry and details of warrant to be given to occupier
or other person at premises
(1) This section
applies if the occupier or another person who apparently represents the
occupier is present at premises when a search warrant is being executed.
(2) The authorised
person executing the warrant must—
(a)
identify himself or herself to that person; and
(b)
announce that he or she is authorised by the warrant to enter the place; and
(c)
before using force to enter, give the person an opportunity to allow entry;
and
(d) give
the person a copy of the warrant.
(3) The authorised
person executing the warrant is not entitled to exercise any powers under the
warrant in relation to premises if the authorised person does not comply with
subsection (2).
37—Immediate entry permitted in certain cases
An authorised person executing a warrant need not comply with section 36
if he or she believes on reasonable grounds that immediate entry to premises
is required to ensure—
(a) the
safety of any person; or
(b) that
the effective execution of the search warrant is not frustrated.
38—Copies of seized documents
(1) If an authorised
person executing a warrant retains possession of a document seized from a
person in accordance with the warrant, the authorised person must give that
other person, within 21 days of the seizure, a copy of the document certified
as correct by the authorised person executing the warrant.
(2) A copy of a
document certified under subsection (1) shall be received in all courts
and all tribunals as evidence of equal validity to the original.
39—Retention and return of seized documents or things
(1) If an authorised
person executing a warrant seizes a document or other thing in accordance with
the warrant, the authorised person must if he or she is not a person employed
by the AER, give the document or other thing seized to the AER.
(2) The AER must take
reasonable steps to return the document or thing to the person from whom it
was seized if the reason for its seizure no longer exists.
(3) If the document or
thing seized has not been returned within 3 months after it was seized, the
AER must take reasonable steps to return it unless—
(a)
proceedings for the purpose for which the document or thing was retained have
commenced within that 3 month period and those proceedings (including any
appeal) have not been completed; or
(b) a
magistrate makes an order under section 40 extending the period during
which the document or thing may be retained.
40—Extension of period of retention of documents or things seized
(1) The AER may apply
to a magistrate—
(a)
within 3 months after a document or other thing was seized in accordance with
a warrant; or
(b) if
an extension has been granted under this section, before the end of the period
of the extension,
for an extension of the period for which the AER may retain the document or
thing but so that the total period of retention does not exceed 12 months.
(2) An application
must be made before proceedings for the purpose for which the document or
thing was retained have been commenced.
(3) A magistrate may
order such an extension if he or she is satisfied that—
(a) it
is in the interests of justice; and
(b) the
total period of retention does not exceed 12 months; and
(c)
retention of the document or other thing is necessary—
(i)
for the purposes of an investigation into whether a
breach of a relevant provision has occurred; or
(ii)
to enable evidence of a breach of a relevant provision to
be obtained for the purposes of a proceeding under this Law.
(4) If proceedings are
commenced for the purpose for which the document or thing was retained at any
time before the expiry of the period specified in an order under this section,
the document or thing may be retained until those proceedings (including any
appeal) have been completed despite those proceedings being completed after
the period specified in the order.
(5) At least 7 days
prior to the hearing of an application under this section by a magistrate,
notice of the application must be sent to the owner of the document or thing
described in the application.
41—Obstruction of persons authorised to enter
A person must not, without reasonable excuse, obstruct or hinder an authorised
person in the exercise of a power under a search warrant under this Division.
Maximum penalty:
(a) in
the case of a natural person—$2 000;
(b) in
the case of a body corporate—$10 000.
Division 3—General information gathering powers
42—Power to obtain information and documents in relation to performance
and exercise of functions and powers
(1) If the AER has
reason to believe that a person is capable of providing information or
producing a document that the AER requires for the performance or exercise of
a function or power conferred on it under this Law or the Rules, the AER may,
by notice in writing, serve on that person a notice (a relevant notice ).
(2) A relevant notice
may require the person to—
(a)
provide to the AER, by writing signed by that person or, in the case of a body
corporate, by a competent officer of the body corporate, within the time and
in the manner specified in the notice, any information of the kind referred to
in subsection (1); or
(b)
produce to the AER, or to a person specified in the notice acting on its
behalf, in accordance with the notice, any documents of the kind referred to
in subsection (1).
(3) A person on whom a
relevant notice is served must comply with the relevant notice unless the
person has a reasonable excuse.
Maximum penalty:
(a) in
the case of a natural person—$2 000;
(b) in
the case of a body corporate—$10 000.
(4) A person must not,
in purported compliance with a relevant notice, provide information that the
person knows is false or misleading in a material particular.
Maximum penalty:
(a) in
the case of a natural person—$2 000;
(b) in
the case of a body corporate—$10 000.
(5) It is a reasonable
excuse for the purposes of subsection (3) if the person served the
relevant notice is not capable of complying with that notice.
(6) It is a reasonable
excuse for a natural person to—
(a) fail
to provide information of the kind referred to in subsection (1) to the
AER; or
(b) fail
to produce a document of the kind referred to in subsection (1) to the
AER, or to a person specified in a relevant notice acting on behalf of the
AER,
if to do so might tend to incriminate the person, or make the person liable to
a criminal penalty, under a law of this jurisdiction or a law of another
participating jurisdiction.
(7) It is not a
reasonable excuse for a person to—
(a) fail
to provide information of the kind referred to in subsection (1) to the
AER; or
(b) fail
to produce a document of the kind referred to in subsection (1) to the
AER, or to a person specified in a relevant notice acting on behalf of the
AER,
on the ground of any duty of confidence.
(8) This section does
not require a person to—
(a)
provide information that is the subject of legal professional privilege; or
(b)
produce a document the production of which would disclose information that is
the subject of legal professional privilege.
(9) This section does
not require a person to—
(a)
provide information that would disclose the contents of a document prepared
for the purposes of a meeting of the Cabinet or a committee of the Cabinet of
the Commonwealth or of a State or a Territory; or
(b)
produce a document prepared for the purposes of a meeting of the Cabinet or a
committee of the Cabinet of the Commonwealth or of a State or a Territory; or
(c)
provide information, or produce a document, that would disclose the
deliberations of the Cabinet or a committee of the Cabinet of the Commonwealth
or of a State or a Territory.
(10) A person incurs,
by complying with a relevant notice, no liability for breach of contract,
breach of confidence or any other civil wrong.
Division 4—Regulatory information notices and general regulatory
information orders
Subdivision 1—Interpretation
43—Definitions
In this Division—
contributing service has the meaning given by section 44;
scheme pipeline service provider means—
(a) a
covered pipeline service provider; or
(b) a
service provider who provides or intends to provide pipeline services by means
of an international pipeline to which a price regulation exemption applies;
related provider means a person who supplies a contributing service to a
scheme pipeline service provider.
44—Meaning of contributing service
(1) A contributing
service is a service that the AER, in accordance with this section, decides is
a service that contributes in a material way to the provision of a pipeline
service by a scheme pipeline service provider.
(2) In deciding
whether a service is a service that contributes in a material way to the
provision of a pipeline service by a scheme pipeline service provider, the AER
must have regard to—
(a) the
nature and kind of the service;
(b) when
the service was first supplied;
(c) the
nature and extent of the contribution of the service relative to—
(i)
the pipeline service; and
(ii)
all other services supplied by the scheme pipeline
service provider;
(d)
whether the service was previously supplied—
(i)
by the scheme pipeline service provider; or
(ii)
directly or indirectly by an associate of the scheme
pipeline service provider;
(e)
whether the service, together with other services, contributes in a material
way to the provision of pipeline services;
(f) any
other matter specified under the Rules.
45—Meaning of general regulatory information order
A general regulatory information order is an order made by the AER in
accordance with this Division that requires each scheme pipeline service
provider of a specified class, or each related provider of a specified class,
to do either or both of the following:
(a)
provide to the AER the information specified in the order;
(b)
prepare, maintain or keep information specified in the notice in a manner and
form specified in the order.
46—Meaning of regulatory information notice
A regulatory information notice is a notice prepared and served by the AER in
accordance with this Division that requires the scheme pipeline service
provider, or a related provider, named in the notice to do either or both of
the following:
(a)
provide to the AER the information specified in the notice;
(b)
prepare, maintain or keep information specified in the notice in a manner and
form specified in the notice.
47—Division does not limit operation of information gathering powers
under Division 3
This Division does not limit the operation of Division 3.
Subdivision 2—Serving and making of regulatory information instruments
48—Service and making of regulatory information instrument
(1) Subject to this
Division, the AER, if it considers it reasonably necessary for the performance
or exercise of its functions or powers under this Law or the Rules, may—
(a)
serve a regulatory information notice on a scheme pipeline service provider or
a related provider; or
(b) make
a general regulatory information order.
(2) In considering
whether it is reasonably necessary to serve a regulatory information notice,
or make a general regulatory information order, the AER must have regard
to—
(a) the
matter to be addressed by—
(i)
the service of the regulatory information notice; or
(ii)
the making of the general regulatory information order;
and
(b) the
likely costs that may be incurred by an efficient scheme pipeline service
provider or efficient related provider in complying with the notice or order.
Note—
The AER must also exercise its powers under this section in a manner that will
or is likely to contribute to the achievement of the national gas objective:
see section 28.
(3) A regulatory
information notice must not be served, or a general regulatory information
order must not be made, solely for the purpose of—
(a)
investigating breaches or possible breaches of provisions of this Law, the
Regulations or the Rules, including offences against this Law; or
(b)
instituting and conducting proceedings in relation to breaches of provisions
of this Law, the Regulations or the Rules, including offences against this
Law; or
(c)
instituting and conducting appeals from decisions in proceedings referred to
in paragraph (b); or
(d)
collecting information for the preparation of a service provider performance
report; or
(e) any
application for review of a decision of the AER under Chapter 8 Part 5.
49—Additional matters to be considered for related provider regulatory
information instruments
(1) This section
applies if the AER is intending to—
(a)
serve a regulatory information notice on a related provider; or
(b) make
a general regulatory information order that will apply to a class of related
providers.
(2) In addition to the
matters set out in section 48(2), the AER, in considering whether it is
reasonably necessary to serve the regulatory information notice, or make the
general regulatory information order, must have regard to—
(a)
whether the scheme pipeline service provider being supplied a contributing
service by the related provider or related providers to which the intended
regulatory information instrument will apply can—
(i)
provide the information to be specified in that
instrument; or
(ii)
prepare, maintain or keep the information to be specified
in the particular manner and form to be specified in that instrument; and
(b) the
extent to which the related provider or related providers to which the
intended regulatory information instrument will apply is, or are, supplying a
contributing service on a genuinely competitive basis; and
(c) the
nature of any ownership or control between—
(i)
the scheme pipeline service provider being supplied a
contributing service by a related provider to which the intended regulatory
information instrument will apply; and
(ii)
that related provider; and
(d) the
nature of any ownership or control as between different related providers
supplying the contributing service to the scheme pipeline service provider;
and
(e) any
other matter the AER considers relevant.
(3) For the purposes
of subsection (2)(b), in considering whether a contributing service is
being supplied on a genuinely competitive basis, the AER may take into
account—
(a)
whether there is effective competition in the market for the supply of the
contributing service; and
(b)
whether the related provider supplies the contributing service to a scheme
pipeline service provider under a contract, arrangement or understanding
entered into with that scheme pipeline service provider following a
competitive process for the awarding of the right to enter into that contract,
arrangement or understanding involving persons who were not associates of the
scheme pipeline service provider.
50—AER must consult before publishing a general regulatory information
order
The AER must, in accordance with the Rules, consult with the public on the
general regulatory information order it intends to make before it makes that
order.
Note—
See also section 65 about what the AER must and may do after receiving
submissions.
51—Publication requirements for general regulatory information orders
(1) A general
regulatory information order made under section 48(1)(b) must be
published on the AER's website as soon as practicable after it is made.
(2) Notice of the
making of a general regulatory information order must be published in a
newspaper circulating generally throughout Australia as soon as practicable
after it is made.
52—Opportunity to be heard before regulatory information notice is
served
(1) The AER, before
serving a regulatory information notice, must—
(a)
notify, in writing, the scheme pipeline service provider, or the related
provider, on whom the AER intends to serve the regulatory information notice
of its intention to do so; and
(b) give
the scheme pipeline service provider, or the related provider, a draft of the
regulatory information notice it intends to serve.
(2) If the regulatory
information notice to be served is an urgent notice, the AER must, in a notice
under subsection (1)—
(a)
identify the regulatory information notice to be served as an urgent notice;
and
(b) give
its reasons, in writing, why the regulatory information notice to be served is
an urgent notice.
(3) A regulatory
information notice is an urgent notice if—
(a)
under the notice the AER will require the scheme pipeline service provider or
related provider to provide information to the AER; and
(b) that
requirement has arisen because the AER considers it must deal with or address
a particular matter or thing in order for it to make an AER economic
regulatory decision; and
(c) the
AER considers that, having regard to the time within which it must make that
AER economic regulatory decision, the time within which the AER requires the
information is of the essence.
(4) A notice under
subsection (1) must—
(a)
invite the scheme pipeline service provider, or the related provider, to make
written representations to the AER as to whether the AER should serve the
regulatory information notice on them; and
(b)
specify the period within which the scheme pipeline service provider, or the
related provider, may make the representations.
(5) The period that
must be specified in accordance with subsection (4) must be—
(a) in
the case of an urgent notice to be served—a period of not less than 5
business days and not more than 10 business days calculated from the date of
the notice under subsection (1);
(b) in
all other cases—a period of at least 20 business days calculated from
the date of the notice under subsection (1).
(6) The AER must
consider the written representations made in accordance with a notice under
subsection (1) before making its decision in accordance with this
Division to serve the regulatory information notice.
Subdivision 3—Form and content of regulatory information instruments
53—Form and content of regulatory information instrument
(1) A regulatory
information instrument—
(a) must
specify the information required to be—
(i)
provided to the AER;
(ii)
prepared, maintained or kept in the particular manner and
form specified in the instrument; and
(b) may
specify the manner and form in which the information described in the
instrument is required to be—
(i)
provided to the AER;
(ii)
prepared, maintained or kept; and
(c) must
state the reasons of the AER for requiring the information described in the
instrument to be—
(i)
provided to the AER;
(ii)
prepared, maintained or kept in the particular manner and
form specified in the instrument; and
(d) in
the case of an instrument requiring information to be provided to the AER,
must specify when the information must be provided.
(2) In the case of a
regulatory information notice, the notice must name the scheme pipeline
service provider or the related provider to whom it applies.
(3) In the case of a
general regulatory information order, the order must specify the class of
scheme pipeline service provider, or related provider, to whom the order
applies.
54—Further provision about the information that may be described in a
regulatory information instrument
Without limiting section 53(1)(a), the information that may be required
to be provided to the AER, or to be prepared, maintained or kept, may
include—
(a)
historic, current and forecast information (including financial information);
(b)
information that is or may be derived from other information in the possession
or control of the scheme pipeline service provider or the related provider to
whom the instrument applies;
(c)
information to enable the AER to verify whether the scheme pipeline service
provider to whom the instrument applies is or has been complying with Chapter
4;
(d)
information to enable the AER to verify compliance with any requirements for
the allocation of costs between natural gas services under—
(i)
the Rules; or
(ii)
an applicable access arrangement.
55—Further provision about manner in which information must be provided
to AER or kept
Without limiting section 53(1)(b), a regulatory information instrument
may require that the information specified in the instrument—
(a) be
provided to the AER, or prepared, maintained or kept, on an annual basis or
some other basis, including on the occurrence of a specified event or state of
affairs;
(b) be
provided to the AER, or prepared, maintained or kept, in accordance with
specified Rules;
(c) be
provided to the AER, or prepared, maintained or kept, in accordance with any
document, code, standard, rule, specification or method formulated, issued,
prescribed or published by the AER or any person, authority or body
whether—
(i)
wholly or partially or as amended by the instrument; or
(ii)
as formulated, issued, prescribed or published at the
time the instrument is served or published or at any time before the
instrument is served or published; or
(iii)
as amended from time to time;
Example—
The AER may require a scheme pipeline service provider to provide information
in a form and manner that complies with relevant accounting standards.
(d) be
verified by way of statutory declaration by an officer of the scheme pipeline
service provider, or of a related provider, to whom the instrument applies;
(e) be
audited—
(i)
by a class of person specified in the instrument before
it is provided to the AER; and
(ii)
at the expense of the scheme pipeline service provider or
related provider to whom the instrument applies.
Subdivision 4—Compliance with regulatory information instruments
56—Compliance with regulatory information notice that is served
On being served a regulatory information notice, a person named in the notice
must comply with the notice.
57—Compliance with general regulatory information order
(1) On publication of
a general regulatory information order in accordance with section 51(1),
a person who is a member of the class of person to which a general regulatory
information order applies must comply with the order.
(2)
Subsection (1) does not apply to a person who has been given an exemption
under section 58.
58—Exemptions from compliance with general regulatory information order
(1) The AER may exempt
a person, or a class of person, from complying with section 57—
(a)
unconditionally or on specified conditions; or
(b)
wholly or to the extent as is specified in the exemption.
(2) An exemption under
this section must be in writing.
59—Assumptions where there is non-compliance with regulatory information
instrument
(1) This section
applies if—
(a)
under a regulatory information instrument the AER—
(i)
requires a scheme pipeline service provider to provide
information to the AER for the purpose of enabling the AER to make an AER
economic regulatory decision relating to the scheme pipeline service provider;
or
(ii)
requires a related provider to provide information to the
AER that is relevant to the making of an AER economic regulatory decision
relating to a scheme pipeline service provider; and
(b) the
scheme pipeline service provider or related provider—
(i)
does not provide the information to the AER in accordance
with the applicable regulatory information instrument; or
(ii)
provides information that is insufficient (when compared
to what was requested under the applicable regulatory information instrument).
(2) Without limiting
sections 56 and 57 and despite anything to the contrary in this Law or
the Rules, the AER—
(a) may
make the AER economic regulatory decision on the basis of the information the
AER has at the time it makes that decision; and
(b) in
making that decision, may make reasonable assumptions (including assumptions
adverse to the interests of the scheme pipeline service provider) in respect
of the matters the information required under the regulatory information
instrument would have addressed had that information been provided as
required.
Subdivision 5—General
60—Providing to AER false and misleading information
A person must not, in purported compliance with a regulatory information
instrument requiring the person to provide information to the AER, provide
information to the AER that the person knows is false or misleading in a
material particular.
Maximum penalty:
(a) in
the case of a natural person—$2 000;
(b) in
the case of a body corporate—$10 000.
61—Person cannot rely on duty of confidence to avoid compliance with
regulatory information instrument
(1) A person must not
refuse to comply with a regulatory information instrument on the ground of any
duty of confidence.
(2) A person incurs,
by complying with a regulatory information instrument, no liability for breach
of contract, breach of confidence or any other civil wrong.
62—Legal professional privilege not affected
A regulatory information instrument, and sections 56 and 57, are not to
be taken as requiring a person to—
(a)
provide to the AER information that is the subject of legal professional
privilege; or
(b)
produce a document to the AER the production of which would disclose
information that is the subject of legal professional privilege.
63—Protection against self-incrimination
(1) It is a reasonable
excuse for a natural person to whom section 56 applies not to comply with
a regulatory information notice served on the person requiring the person to
provide information to the AER if to do so might tend to incriminate the
person, or make the person liable to a criminal penalty, under a law of this
jurisdiction or another participating jurisdiction.
(2) It is a reasonable
excuse for a natural person to whom section 57 applies not to comply with
a general regulatory information order made requiring the person to provide
information to the AER if to do so might tend to incriminate the person, or
make the person liable to a criminal penalty, under a law of this jurisdiction
or another participating jurisdiction.
Division 5—Service provider performance reports
64—Preparation of service provider performance reports
(1) Subject to this
section, the AER may prepare a report on the financial performance or
operational performance of 1 or more scheme pipeline service providers in
providing pipeline services by means of a scheme pipeline.
Note—
The AER may only prepare a report under subsection (1) if the preparation
of the report will or is likely to contribute to the achievement of the
national gas objective: see section 28.
(2) A report prepared
under this section may—
(a) deal
with the financial or operational performance of the scheme pipeline service
provider in relation to—
(i)
complying with pipeline service standards; and
(ii)
standards relating to the provision of pipeline services
to users or end users; and
(iii)
the profitability of scheme pipeline service providers in
providing pipeline services; and
(b) if
the AER considers it appropriate, deal with the performance of the scheme
pipeline service provider in relation to other matters or things if that
performance is directly related to the performance or exercise by the AER of
an AER economic regulatory function or power.
(3) A report prepared
under this section may include—
(a)
information provided to the AER by a person in compliance with a regulatory
information instrument; and
(b) in
the case of a report dealing with the financial performance of 1 or more
scheme pipeline service providers, a comparison of the profitability of the
scheme pipeline service providers to which the report relates from the
provision of pipeline services by them.
(4) Before preparing a
report under this section, the AER must, in accordance with the Rules, consult
with the persons or bodies specified by the Rules.
(5) The AER may
publish a report prepared under this section on its website.
Division 6—Miscellaneous matters
65—Consideration by the AER of submissions or comments made to it under
this Law or the Rules
If, under this Law or the Rules, the AER publishes a notice inviting
submissions in relation to the making of an AER economic regulatory decision,
the AER, in making the decision—
(a) must
consider every submission it receives within the period specified in the
notice; and
(b) may,
but need not, consider a submission it receives after the period specified in
the notice expires.
66—Use of information provided under a notice under Division 3 or a
regulatory information instrument
The AER may use information provided to it by a person in compliance with a
notice under section 42 or a regulatory information instrument for any
purpose connected with the performance or exercise of a function or power of
the AER under this Law or the Rules.
67—AER to inform certain persons of decisions not to investigate
breaches, institute proceedings or serve infringement notices
(1) If the AER is
given information by any person in relation to a breach or a possible breach
of this Law, the Regulations or the Rules by a person but—
(a)
decides not to investigate that breach or possible breach; or
(b)
following an investigation, decides not to—
(i)
institute any proceedings under Chapter 8 in respect of
that breach or possible breach; or
(ii)
serve an infringement notice in accordance with Chapter 8
Part 7 in respect of that breach or possible breach,
the AER must notify that person of that decision in writing.
(2) This section does
not apply if the person gave the information to the AER anonymously.
68—AER enforcement guidelines
(1) The AER may
prepare guidelines about the matters it will have regard to before—
(a)
making an application under section 231; or
(b)
serving an infringement notice under section 277.
(2) The AER must
publish guidelines prepared under subsection (1) on its website.
Part 2—Functions and powers of the Australian Energy Market Commission
Division 1—General
69—Functions and powers of the AEMC
(1) The AEMC has the
following functions and powers:
(a) the
Rule making functions and powers conferred on it under this Law and the
Regulations;
(b) the
market development functions conferred on it under this Law and the Rules;
(c) any
other functions and powers conferred on it under this Law and the Rules.
(2) The AEMC has power
to do all things necessary or convenient to be done for or in connection with
the performance of its functions.
70—Delegations
Any delegation by the AEMC under section 20 of the Australian Energy Market
Commission Establishment Act 2004 of South Australia extends to, and has
effect for the purposes of, this Law, the Regulations and the Rules.
71—Confidentiality
Section 24 of the Australian Energy Market Commission Establishment
Act 2004 of South Australia has effect for the purposes of this Law, the
Regulations and the Rules as if it formed part of this Law.
Note—
See also Chapter 10 Part 2 Division 2.
72—AEMC must have regard to national gas objective
In performing or exercising any function or power under this Law, the
Regulations or the Rules, the AEMC must have regard to the national gas
objective.
73—AEMC must have regard to MCE statements of policy principles in
relation to Rule making and reviews
The AEMC must have regard to any relevant MCE statement of policy
principles—
(a) in
making a Rule; or
(b) in
conducting a review under section 83.
Division 2—Rule making functions and powers of the AEMC
74—Subject matter for National Gas Rules
(1) Subject to this
Division, the AEMC, in accordance with this Law and the Regulations, may make
Rules, to be known, collectively, as the "National Gas Rules", for or with
respect to—
(a)
regulating—
(i)
access to pipeline services; and
(ii)
the provision of pipeline services; and
(iii)
the collection, use, disclosure, copying, recording,
management and publication of information in relation to natural gas services;
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
(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;
(c)
confer functions or powers on, or leave any matter or thing to be decided or
determined by—
(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;
(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
(c) the
operation and effectiveness of the Rules; or
(d) any
matter relating to the Rules; or
(e) the
effectiveness of competition in a market for gas for the purpose of giving
advice about whether to retain, remove or reintroduce price controls on prices
for retail gas services.
(2) A direction given
to the AEMC under this section is binding on the AEMC and must be complied
with despite anything to the contrary in the Rules.
(3) A direction given
under this section must be published in the South Australian Government
Gazette.
(4) The AEMC must
cause a direction given under this section to be published on its website.
80—Terms of reference
(1) The terms of
reference of a MCE directed review will be as specified in the direction given
by the MCE.
Example—
The terms of reference may require a MCE directed review to be
conducted—
(a)
about a specific matter within a specified time; or
(b)
whenever a specified event occurs; or
(c) on
an annual basis.
(2) Without limiting
subsection (1), the MCE may in its direction to the AEMC do 1 or more of
the following:
(a)
require the AEMC to give a report on a MCE directed review to the MCE within a
specified period;
(b)
require the AEMC to make the report on a MCE directed review publicly
available or available to specified persons or bodies;
(c)
require the AEMC to make a draft report publicly available or available to
specified persons or bodies during a MCE directed review;
(d)
require the AEMC to consider specified matters in the conduct of a MCE
directed review;
(e)
require the AEMC to have specified objectives in the conduct of a MCE directed
review which need not be limited by the national gas objective;
(f)
require the AEMC to assess a particular matter in relation to services
provided in a market for gas against specified criteria or a specified
methodology;
(g)
require the AEMC—
(i)
to assess a particular matter in relation to services
provided in a market for gas; and
(ii)
to develop appropriate and relevant criteria, or an
appropriate and relevant methodology, for the purpose of the required
assessment;
(h) give
the AEMC other specific directions in respect of the conduct of a MCE directed
review.
81—Notice of MCE directed review
(1) The AEMC must
publish notice of a MCE directed review on its website and in a newspaper
circulating generally throughout Australia.
(2) The AEMC must
publish a further such notice if a term of reference or a requirement or
direction relating to the MCE directed review is varied.
82—Conduct of MCE directed review
Subject to any requirement or direction of the MCE, a MCE directed
review—
(a) may
be conducted in such manner as the AEMC considers appropriate; and
(b) may
(but need not) involve public hearings.
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
84—AEMC must publish and make available up to date versions of Rules
The AEMC must, at all times—
(a)
maintain, on its website, a copy of the National Gas Rules, as in force from
time to time; and
(b) make
copies of the National Gas Rules, as in force from time to time, available to
the public for inspection at its offices during business hours.
85—Fees
(1) The AEMC may
charge a fee specified, or a fee calculated in accordance with a formula or
methodology specified, in the Regulations for services provided by it in
performing or exercising any of its functions or powers under this Law, the
Regulations or the Rules.
(2) The fee must not
be such as to amount to taxation.
86—Immunity from personal liability of AEMC officials
(1) No personal
liability attaches to an AEMC official for an act or omission in good faith in
the performance or exercise, or purported performance or exercise of a
function or power under this Law, the Regulations or the Rules.
(2) A liability that
would, but for subsection (1), lie against an AEMC official lies instead
against the AEMC.
(3) In this
section—
AEMC official means—
(a) a
member of the AEMC;
(b) the
chief executive of the AEMC;
(c) a
member of staff appointed by the AEMC.
Part 3—Functions and powers of Ministers of participating jurisdictions
87—Functions and powers of Minister of this participating jurisdiction
under this Law
(1) The Minister of
this participating jurisdiction has the functions and powers conferred on him
or her under this Law, the Regulations or the Rules.
(2) The Minister of
this participating jurisdiction has power to do all things necessary or
convenient to be done for or in connection with the performance of his or her
functions.
(3) In this
section—
Minister of this participating jurisdiction means the Minister that
administers the Act of this jurisdiction that applies this Law as a law of
this jurisdiction.
88—Functions and powers of Commonwealth Minister under this Law
(1) The Commonwealth
Minister has the functions and powers conferred on him or her under this Law,
the Regulations or the Rules.
(2) The Commonwealth
Minister has power to do all things necessary or convenient to be done for or
in connection with the performance of his or her functions.
Part 4—Functions and powers of the NCC
89—Functions and powers of NCC under this Law
(1) The NCC has the
functions and powers conferred on it under this Law, the Regulations or the
Rules.
(2) The NCC has power
to do all things necessary or convenient to be done for or in connection with
the performance of its functions.
90—Confidentiality
(1) The NCC must take
all reasonable measures to protect from unauthorised use or disclosure
information given to it in confidence in, or in connection with, the
performance of its functions or the exercise of its powers under this Law, the
Regulations or the Rules.
(2) For the purposes
of subsection (1), the disclosure of information as required or permitted
by this Law, a law of the Commonwealth, a State or Territory is taken to be
authorised use and disclosure of the information.
(3) Disclosing
information to 1 of the following is authorised use and disclosure of the
information:
(b) the
AER;
(c) the
ERA;
(e) any
staff or consultant assisting a body mentioned in paragraph (a) to (d) in
performing its functions or exercising its powers;
(f) any
other person or body prescribed by the Regulations for the purpose of this
paragraph.
(4) A person or body
to whom information is disclosed under subsection (3) may use the
information for any purpose connected with the performance of the functions,
or the exercise of the powers, of the person or body.
(5) The NCC may impose
conditions to be complied with in relation to information disclosed under
subsection (3).
(6) For the purposes
of subsection (1), the use or disclosure of information by a person for
the purposes of performing the person’s functions, or exercising the
person’s powers, as—
(a) a
Councillor or a person referred to in section 29M of the Trade Practices Act
1974 of the Commonwealth; or
(b) a
person who is authorised to perform or exercise a function or power of, or on
behalf of, the NCC,
is taken to be authorised use and disclosure of the information.
(7) Regulations made
for the purposes of this section may specify uses of information and
disclosures of information that are authorised uses and authorised disclosures
for the purposes of this section.
(8) Nothing in any of
the above subsections limits—
(a)
anything else in any of those subsections; or
(b) what
may otherwise constitute, for the purposes of subsection (1), authorised
use or disclosure of information.
(9) In this
section—
Councillor has the same meaning as in the Trade Practices Act 1974 of the
Commonwealth.
Note—
See also Chapter 10 Part 2 Division 2.
Part 5—Functions and powers of Tribunal
91—Functions and powers of Tribunal under this Law
(1) The Tribunal has
the functions and powers conferred on it under Chapter 8 Part 5 and any
Regulations made for the purposes of that Division.
(2) The Tribunal has
power to do all things necessary or convenient to be done for or in connection
with the performance of its functions.
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 markets for natural gas 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, for natural gas that are or will be governed by this Law,
the Rules and the Procedures;
(c) to
register persons as Registered participants;
(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);
(f) for
an adoptive jurisdiction—the declared system functions or STTM functions
(as the case requires);
(g) to
make, amend or revoke Procedures;
(h) to
operate and maintain the Natural Gas Services 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.
(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 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 markets for natural gas;
(e) to
coordinate the interaction of producers, 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
natural gas—
(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 natural gas;
(b) to
maintain and improve the security of the declared transmission system or a
declared distribution system;
(c) in
the interests of public safety.
(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 natural 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) for
a natural person—$25 000;
(b) for
a body corporate—$100 000.
(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 $10 000 for
each such offence.
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;
(b) a
facility for storing natural gas, processable gas or LNG;
(c) a
gas fired electricity generator;
(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;
(c) the
maintenance of a balancing account;
(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
(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.
(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
(c) any
other matter that has a bearing on the subject matter of the agreement.
(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)
section 186(1)(c), section 186(2) and sections 187 to 191 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 that injects natural gas into the declared transmission system; or
(c) a
storage provider whose storage facility is connected to the declared
transmission system; or
(d) a
person who buys or sells natural 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
(c) may
confer rights or impose obligations on Registered participants, exempted
participants, or other persons; 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
(c) may
refer the breach to the AER.
(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
(c) be
addressed to, and given to, the person suspected of the breach.
(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
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 into the declared transmission system, 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,
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
(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) 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
natural 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 natural gas to an STTM hub; or
(b) a
person who withdraws natural gas from an STTM hub; or
(c) a
person classified by the Rules as a participant in a short term trading
market.
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 natural 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 natural gas to an STTM hub that
does not comply with the gas quality specifications specified in the Rules for
that STTM hub.
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
(c) may
confer rights or impose obligations on STTM trading participants, exempted
participants, or other persons; 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
(c) may
refer the breach to the AER.
(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
(c) be
addressed to, and given to, the person suspected of the breach.
(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).)
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 pipeline capacity and other aspects of the natural gas industry.
(2) The gas statement
of opportunities—
(a) must
contain an assessment of medium to long term demand (including export demand)
for natural gas and for pipeline services; and
(b) must
contain an assessment of supply and pipeline capacity to meet existing and
foreseeable demand for natural gas and pipeline services; and
(c) must
include forecasts of the outlook for the natural gas industry over a
20 year planning horizon; and
(d) must
point out likely long term shortfalls in natural gas reserves, and production
or transmission constraints; and
(e) must
contain any other information required by the Rules.
91DA—AEMO’s obligation in regard to gas statement of opportunities
AEMO must prepare, periodically review, revise, and publish the gas statement
of opportunities in accordance with the Rules.
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
(c) is
consistent with the requirements of the Rules.
(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
(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.
(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) As soon as
practicable after a general market information order is made—
(a) the
order must be published on AEMO's website; and
(b)
notice of the making of the order must be published in a newspaper circulating
generally throughout Australia.
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.
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—$2 000;
(b) in
the case of a body corporate—$10 000.
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;
(c) a
storage provider;
(d) a
producer;
(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
(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).
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—$2 000;
(b) in
the case of a body corporate—$10 000.
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;
(c)
prescribe the manner in which a maximum amount is to be divided amongst
claimants.
(4) A person mentioned
in subsection (1) may enter into an agreement with another person varying
or excluding the operation of a provision of this section and, to the extent
of that agreement, that provision does not apply.
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;
(c) the
Australian Energy Market Commission;
(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 a recognised energy industry
ombudsman to resolve a dispute between a Registered participant and a customer
under an industry dispute resolution scheme but the information is not end-use
consumer information—the recognised energy industry 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.
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 or security of the supply of
natural gas; or
(ii)
the safety, reliability or security of a pipeline; or
(b) the
disclosure is necessary for the proper operation of a regulated gas market; or
(c) the
information is in the public domain.
(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).
(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—
notice to pay includes a statement of payment, settlement statement, bill or
invoice;
Registered participant includes an exempted participant.
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 natural 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;
(c)
prescribe the manner in which a maximum amount is to be divided amongst
claimants.
(5) In this
section—
distribution pipeline includes a pipeline that would be likely to be
classified as a distribution pipeline;
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
(c) an
officer, employee or agent of AEMO or a former gas market operator.
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
(c) a
person or class of persons to which the protection of this section is extended
by the Regulations.
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 natural 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) The retail market
for natural gas 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;
(c)
non-scheme pipeline 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
(c) may
confer functions or powers on, or leave any matter or thing to be decided by,
AEMO; 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.
(2) However, if there
is an inconsistency between an applicable access arrangement and the Retail
Market Procedures, a person is, to the extent of the inconsistency, not
required to 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
(c) may
refer the breach to the AER.
(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
(c) be
addressed to, and given to, the person suspected of the breach.
(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—
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).)
Chapter 3—Coverage and classification of pipelines
Part 1—Coverage of pipelines
Division 1—Coverage determinations
92—Application for recommendation that a pipeline be a covered pipeline
(1) Any person may
apply for a determination that a pipeline be a covered pipeline (a coverage
determination ).
(2) An application for
a coverage determination—
(a) is
to be made to the NCC in accordance with the Rules; and
(b) must
contain the information required by the Rules; and
(c) must
be accompanied by the fee prescribed by the Regulations (if any).
93—Application to be dealt with in accordance with the Rules
Subject to section 94, on receiving an application under section 92
the NCC must deal with it in accordance with the Rules.
94—NCC may defer consideration of application in certain cases
(1) This section
applies if an application under section 92 is made in relation to a
proposed pipeline after—
(a) an
application has been made to the AER under the Rules for the approval, by the
AER, of the tender process for the construction and operation of the proposed
pipeline as a competitive tender process; or
(b) a
tender approval decision has been made in respect of the tender process for
the construction and operation of the proposed pipeline.
(2) The NCC may defer
consideration of whether to make a recommendation in respect of the
application until—
(a) the
application for the approval, by the AER, of the tender process for the
construction and operation of the proposed pipeline as a competitive tender
process has been rejected by the AER under the Rules; or
(b) the
tender approval decision—
(i)
has been revoked under the Rules; or
(ii)
has lapsed as provided under the Rules.
95—NCC coverage recommendation
(1) Subject to
sections 94 and 96, the NCC must recommend to the relevant Minister that
the pipeline the subject of the application—
(a) be a
covered pipeline; or
(b) not
be a covered pipeline.
Note—
See also Chapter 3 Part 2 Division 1 Subdivision 1.
(2) A recommendation
under this section must—
(a) be
made in accordance with this Law and the Rules; and
(b) be
made within the time specified by the Rules; and
(c)
contain the information required by the Rules; and
(d) be
given to the persons specified by the Rules; and
(e) be
made publicly available in accordance with the Rules.
(3) A recommendation
under this section may recommend an outcome different from the outcome sought
in the application under section 92.
Example—
An applicant may apply for a determination that the whole of a pipeline be a
covered pipeline. The NCC may recommend that only a part of the pipeline the
subject of the application be covered or may recommend that the pipeline not
be covered.
(4) A recommendation
under this section must be delivered to the relevant Minister without delay.
96—NCC must not make coverage recommendation if tender approval decision
becomes irrevocable
Despite anything to the contrary in this Division, the NCC—
(a) must
not make a recommendation under section 95 if the pipeline is the subject
of a tender approval decision that—
(i)
has not lapsed as provided under the Rules; or
(ii)
is not revoked under the Rules; and
(b)
must, for the purposes of paragraph (a), treat the application as having
never been made.
97—Principles governing the making of a coverage recommendation
(1) In making a
coverage recommendation, the NCC—
(a) must
give effect to the pipeline coverage criteria; and
(b) in
deciding whether or not the pipeline coverage criteria are satisfied must have
regard to the national gas objective.
(2) The NCC gives
effect to the pipeline coverage criteria as follows:
(a) if
the NCC is satisfied that all the pipeline coverage criteria are satisfied in
relation to the pipeline—the recommendation must be in favour of the
pipeline being a covered pipeline;
(b) if
the NCC is not satisfied that all the pipeline coverage criteria are satisfied
in relation to the pipeline—the recommendation must be against the
pipeline being a covered pipeline.
98—Initial classification decision to be made as part of recommendation
(1) The NCC must, as
part of a coverage recommendation, classify the pipeline the subject of an
application under section 92 as a transmission pipeline or a distribution
pipeline (an initial classification decision ). In doing so, the NCC must
apply the pipeline classification criterion.
(2) The NCC must as
part of an initial classification decision—
(a) if
it classifies the pipeline the subject of the application as a transmission
pipeline—determine whether the transmission pipeline is also a cross
boundary transmission pipeline;
(b) if
it classifies the pipeline the subject of the application as a distribution
pipeline—determine whether the distribution pipeline is also a cross
boundary distribution pipeline.
(3) The NCC must also
determine, as part of an initial classification decision, the participating
jurisdiction with which the pipeline the subject of the application under
section 92 is most closely connected if the NCC determines the pipeline
is also a cross boundary distribution pipeline. In doing so, the NCC must
apply the jurisdictional determination criteria.
99—Relevant Minister's determination on application
(1) On receiving a
coverage recommendation, the relevant Minister must decide whether to make a
coverage determination in respect of the pipeline to which the recommendation
relates.
(2) The relevant
Minister must use his or her best endeavours to make the decision within 20
business days after receiving the coverage recommendation.
(3) If the relevant
Minister is unable to make the decision within the period specified under
subsection (2), he or she must make the decision as soon as reasonably
practicable after the end of the specified period.
(4) The relevant
Minister, for the purpose of making the decision, may request submissions or
comments in relation to an application under section 92.
(5) A coverage
determination or a decision not to make a coverage determination must—
(a) be
made in accordance with this Law and the Rules; and
(b)
contain the information required by the Rules; and
(c) be
given to the persons specified by the Rules; and
(d) be
made publicly available in accordance with the Rules.
(6) In the case of a
coverage determination, the determination must specify the date the
determination takes effect.
(7) A coverage
determination may have an outcome different to the outcome—
(a)
sought in the application under section 92; or
(b) of
the coverage recommendation.
Example—
An applicant may apply for a determination that the whole of a pipeline be a
covered pipeline. The NCC may recommend that only a part of the pipeline the
subject of the application be covered. The relevant Minister may determine
that different parts of the pipeline to those recommended by the NCC be
covered.
100—Principles governing the making of a coverage determination or
decision not to do so
(1) In deciding
whether to make a coverage determination under this Division, the relevant
Minister—
(a) must
give effect to the pipeline coverage criteria; and
(b) in
deciding whether or not the pipeline coverage criteria are satisfied in
relation to the pipeline—
(i)
must have regard to the national gas objective; and
(ii)
must have regard to the coverage recommendation; and
(iii)
must take into account any submissions or comments he or
she receives on a request under section 99(4); and
(iv)
may take into account any relevant submissions and
comments made to the NCC by the public under the Rules in relation to the
application.
(2) The relevant
Minister gives effect to the pipeline coverage criteria as follows:
(a) if
the relevant Minister is satisfied that all the pipeline coverage criteria are
satisfied in relation to the pipeline—the Minister must make a coverage
determination;
(b) if
the relevant Minister is not satisfied that all the pipeline coverage criteria
are satisfied in relation to the pipeline—the Minister must not make a
coverage determination.
101—Operation and effect of coverage determination
The pipeline the subject of a coverage determination becomes a covered
pipeline—
(a) when
the coverage determination takes effect; and
(b)
continues to be a covered pipeline while the coverage determination remains in
effect.
Division 2—Coverage revocation determinations
102—Application for a determination that a pipeline no longer be a
covered pipeline
(1) Any person may
apply for a determination that a covered pipeline no longer be a covered
pipeline (a coverage revocation determination ).
(2) An application for
a coverage revocation determination—
(a) is
to be made to the NCC in accordance with the Rules; and
(b) must
contain the information required by the Rules; and
(c) must
be accompanied by the fee prescribed by the Regulations (if any).
103—Application to be dealt with in accordance with the Rules
On receiving an application under section 102, the NCC must deal with it
in accordance with the Rules.
104—NCC coverage revocation recommendation
(1) The NCC must make
a recommendation to the relevant Minister as to whether the covered pipeline
the subject of the application should continue to be a covered pipeline.
Note—
See also section 119.
(2) A recommendation
under this section must—
(a) be
made in accordance with this Law and the Rules; and
(b) be
made within the time specified by the Rules; and
(c)
contain the information required by the Rules; and
(d) be
given to the persons specified by the Rules; and
(e) be
made publicly available in accordance with the Rules.
(3) A recommendation
under this section may recommend an outcome different from the outcome sought
in the application under section 102.
Example—
A service provider may apply for a determination that revokes the coverage of
the covered pipeline by means of which the provider provides pipeline
services. The NCC may recommend that the coverage of the covered pipeline be
only partly revoked or not be revoked.
(4) A recommendation
under this section must be delivered to the relevant Minister without delay.
105—Principles governing the making of a coverage revocation
recommendation
(1) In making a
coverage revocation recommendation, the NCC—
(a) must
give effect to the pipeline coverage criteria; and
(b) in
deciding whether or not the pipeline coverage criteria are satisfied must have
regard to the national gas objective.
(2) The NCC gives
effect to the pipeline coverage criteria as follows:
(a) if
the NCC is satisfied that all the pipeline coverage criteria are satisfied in
relation to the pipeline—the recommendation must be in favour of the
pipeline continuing to be a covered pipeline;
(b) if
the NCC is not satisfied that all the pipeline coverage criteria are satisfied
in relation to the pipeline—the recommendation must be in favour of the
pipeline no longer being a covered pipeline.
106—Relevant Minister's determination on application
(1) On receiving a
coverage revocation recommendation, the relevant Minister must decide whether
to make a coverage revocation determination in respect of the pipeline to
which the recommendation relates.
(2) The relevant
Minister must use his or her best endeavours to make the decision within 20
business days after receiving the coverage revocation recommendation.
(3) If the relevant
Minister is unable to make the decision within the period specified under
subsection (2), he or she must make the decision as soon as reasonably
practicable after the end of the specified period.
(4) The relevant
Minister, for the purpose of making the decision, may request submissions or
comments in relation to an application under section 102.
(5) A coverage
revocation determination or a decision not to make a coverage revocation
determination must—
(a) be
made in accordance with this Law and the Rules; and
(b)
contain the information required by the Rules; and
(c) be
given to the persons specified by the Rules; and
(d) be
made publicly available in accordance with the Rules.
(6) In the case of a
coverage revocation determination, the determination must specify the date the
determination takes effect.
(7) A coverage
revocation determination may have an outcome different to the outcome—
(a)
sought in the application under section 102; or
(b) of
the coverage revocation recommendation.
Example—
A service provider may apply for a determination that revokes the coverage of
the covered pipeline by means of which the provider provides pipeline
services. The NCC may recommend that the coverage of the covered pipeline be
only partly revoked. The relevant Minister may make a determination that
revokes coverage of different parts of the covered pipeline to those parts in
relation to which the NCC recommended coverage be revoked.
107—Principles governing the making of a coverage revocation
determination or decision not to do so
(1) In deciding
whether to make a coverage revocation determination under this Division, the
relevant Minister—
(a) must
give effect to the pipeline coverage criteria; and
(b) in
deciding whether or not the pipeline coverage criteria are satisfied in
relation to the pipeline—
(i)
must have regard to the national gas objective; and
(ii)
must have regard to the coverage revocation
recommendation; and
(iii)
must take into account any submissions or comments he or
she receives on a request under section 106(4); and
(iv)
may take into account any relevant submissions and
comments made to the NCC by the public under the Rules in relation to the
application.
(2) The relevant
Minister gives effect to the pipeline coverage criteria as follows:
(a) if
the relevant Minister is satisfied that all the pipeline coverage criteria are
satisfied in relation to the pipeline—the Minister must not make a
coverage revocation determination;
(b) if
the relevant Minister is not satisfied that all the pipeline coverage criteria
are satisfied in relation to the pipeline—the Minister must make a
coverage revocation determination.
108—Operation and effect of coverage revocation determination
The pipeline the subject of a coverage revocation determination ceases to be a
covered pipeline when the coverage revocation determination takes effect.
Part 2—Light regulation of covered pipeline services
Division 1—Making of light regulation determinations
Subdivision 1—Decisions when pipeline is not a covered pipeline
109—Application of Subdivision
This Subdivision applies if—
(a) an
application has been made under section 92 for a coverage determination;
and
(b) the
pipeline the subject of the application is not a designated pipeline.
110—NCC's decision on light regulation of pipeline services
(1) The NCC must
decide whether to make a determination that the pipeline services provided or
to be provided by means of the pipeline are light regulation services (a light
regulation determination ).
(2) The NCC must make
its decision under subsection (1)—
(a) at
the same time as it makes the coverage recommendation; and
(b)
within the time it must make the coverage recommendation.
(3) A light regulation
determination or a decision not to make a light regulation determination
must—
(a) be
made in accordance with this Law and the Rules; and
Note—
For example, see section 122.
(b) be
attached to the coverage recommendation; and
(c)
contain the information required by the Rules.
Note—
If the NCC makes a light regulation determination, and the relevant Minister
makes the coverage determination, the service provider may submit a limited
access arrangement in respect of the light regulation services to the AER for
approval: see section 116.
Subdivision 2—Decisions when pipeline is a covered pipeline
111—Application of Subdivision
This Subdivision applies if a service provider provides pipelines
services—
(a) by
means of a covered pipeline that is not a designated pipeline; and
(b) to
which an applicable access arrangement approved or made under a full access
arrangement decision applies.
112—Application
(1) A service provider
may apply to the NCC for a determination that pipeline services provided by
the service provider by means of a covered pipeline be light regulation
services (a light regulation determination ).
(2) An application
must—
(a) be
in accordance with the Rules; and
(b)
contain the information required by the Rules.
(3) An application may
only be made in respect of all of the pipeline services provided by means of
the covered pipeline.
113—Application to be dealt with in accordance with the Rules
On receiving an application under section 112, the NCC must deal with it
in accordance with the Rules.
114—NCC's decision on light regulation of pipeline services
(1) The NCC must
decide whether to make a light regulation determination within—
(a) 4
months after receiving an application under section 112; or
(b) if
the Rules specify a later period, that period.
(2) A light regulation
determination or a decision not to make a light regulation determination
must—
(a) be
made in accordance with this Law and the Rules; and
Note—
For example, see section 122.
(b)
contain the information required by the Rules; and
(c) be
given to the persons specified by the Rules; and
(d) be
made publicly available in accordance with the Rules.
Note—
If the NCC makes a light regulation determination, the service provider may
submit a limited access arrangement in respect of the light regulation
services to the AER for approval: see section 116.
Subdivision 3—Operation and effect of light regulation determinations
115—When light regulation determinations take effect
(1) A light regulation
determination takes effect—
(a) in
the case of a light regulation determination made under Subdivision 1—on
the day the relevant coverage determination takes effect;
(b) in
the case of a light regulation determination made under Subdivision 2—60
business days after the light regulation determination is made.
(2) A light regulation
determination continues in operation until—
(a) it
is revoked by operation of section 117(5); or
(b) a
decision under section 119(2) or 120 takes effect; or
(c) it
is revoked by operation of section 123(2); or
(d) it
is revoked by operation of section 124.
116—Submission of limited access arrangement for light regulation
services
(1) A service provider
may, in respect of light regulation services the service provider provides or
intends to provide, submit a limited access arrangement to the AER for
approval by the AER under the Rules.
(2) If the service
provider chooses to submit a limited access arrangement in accordance with
subsection (1), the limited access arrangement must—
(a) be
submitted in accordance with the Rules; and
(b)
contain the information required by the Rules.
(3) A service provider
must submit to the AER, for approval by the AER under the Rules, revisions to
an applicable access arrangement that is a limited access arrangement and that
applies to the light regulation services the provider provides—
(a) in
accordance with the Rules; and
(b)
within the period specified by the Rules.
Division 2—Revocation of light regulation determinations
Subdivision 1—On advice from service providers
117—Advice by service provider that light regulation services should
cease to be light regulation services
(1) A service provider
may advise the NCC that it wishes that the pipeline services it provides cease
to be light regulation services.
(2) An advice under
subsection (1) must be in writing.
(3) On receiving an
advice under subsection (1), the NCC must, without delay, publish notice
of receipt of that advice—
(a) on
its website; and
(b) in a
newspaper circulating generally throughout Australia.
(4) On publication of
a notice under subsection (3) the service provider must comply with
section 132.
(5) The light
regulation determination applying to the pipeline services is, by force of
this section, revoked on the same day that an access arrangement that applies
to the pipeline services provided by that service provider is, as the case
requires, approved or made under a full access arrangement decision.
(6) On the revocation
of the light regulation determination the pipeline services to which the light
regulation determination applied cease to be light regulation services.
Subdivision 2—On application by persons other than service providers
118—Application (other than by service provider) for revocation of light
regulation determinations
(1) A person (other
than the service provider who provides light regulation services) may apply to
the NCC for the revocation of a light regulation determination relating to
those services.
(2) An application
under subsection (1) must—
(a) be
in accordance with the Rules; and
(b)
contain the information required by the Rules.
119—Decisions on applications made around time of applications for
coverage revocation determinations
(1) This section
applies if an application is made under section 118 and—
(a)
there is an application for a coverage revocation determination under
section 102 under consideration—
(i)
in respect of the covered pipeline by means of which the
light regulation services the subject of the application under
section 118 are provided; and
(ii)
in respect of which the NCC has not made a coverage
revocation recommendation; or
(b) an
application for a coverage revocation determination is made under
section 102 in respect of the covered pipeline by means of which the
light regulation services the subject of the application under
section 118 are provided—
(i)
after the application under section 118; but
(ii)
before the NCC makes its decision in respect of the
application under section 118.
(2) Despite anything
to the contrary in this Part, the NCC must make its decision in respect of the
application under this section.
(3) On receiving the
application under section 118, the NCC must decide whether to revoke the
light regulation determination.
(4) The NCC must make
its decision under subsection (3)—
(a) at
the same time as it makes the coverage revocation recommendation; and
(b)
within the time it must make the coverage revocation recommendation.
(5) A decision under
subsection (3) must—
(a) be
made in accordance with this Law and the Rules; and
Note—
For example, see section 122.
(b) be
attached to the coverage revocation recommendation; and
(c)
contain the information required by the Rules.
120—NCC decision on application where no application for a coverage
revocation recommendation
(1) This section
applies if—
(a) an
application is made under section 118; and
(b) no
application for a coverage revocation determination in respect of the covered
pipeline (by means of which the light regulation services the subject of the
application under section 118) are provided is made before the NCC makes
its decision in respect of the application under section 118.
(2) Subject to this
section, on receiving an application under section 118 the NCC must deal
with it in accordance with the Rules.
(3) The NCC must
decide whether to revoke a light regulation determination within—
(a) 4
months after receiving an application under section 118; or
(b) if
the Rules specify a later period, that period.
(4) A decision under
this section must—
(a) be
made in accordance with this Law and the Rules; and
Note—
For example, see section 122.
(b)
contain the information required by the Rules; and
(c) be
given to the persons specified by the Rules; and
(d) be
made publicly available in accordance with the Rules.
121—Operation and effect of decision of NCC under this Division
(1) Subject to
section 124, on the making of a decision under section 119(2) or 120
revoking a light regulation determination, the service provider must comply
with section 132.
(2) However, the
decision under section 119(2) or 120 revoking a light regulation
determination does not take effect until an access arrangement that applies to
the pipeline services provided by that service provider is approved or made
under a full access arrangement decision.
(3) The effect of a
decision under section 119(2) or 120 revoking a light regulation
determination is that the pipeline services to which the light regulation
determination applied cease to be light regulation services.
Division 3—Principles governing light regulation determinations
122—Principles governing the making or revoking of light regulation
determinations
(1) In deciding
whether to make a light regulation determination under Division 1 or to revoke
a light regulation determination under Division 2, the NCC must
consider—
(a) the
likely effectiveness of the forms of regulation provided for under this Law
and the Rules to regulate the provision of the pipeline services (the subject
of the application) to promote access to pipeline services; and
(b) the
effect of the forms of regulation provided for under this Law and the Rules
on—
(i)
the likely costs that may be incurred by an efficient
service provider; and
(ii)
the likely costs that may be incurred by efficient users
and efficient prospective users; and
(iii)
the likely costs of end users.
Note—
The forms of regulation provided for under this Law and the Rules to regulate
the provision of the pipeline services by means of a covered pipeline
are—
(a)
making a light regulation determination so that those services become light
regulation services;
(b) not
making a light regulation determination so that those services are regulated
under a full access arrangement decision that approves or makes the applicable
access arrangement that applies to those services.
(2) In doing so, the
NCC—
(a) must
have regard to the national gas objective; and
(b) must
have regard to the form of regulation factors; and
(c) may
have regard to any other matters it considers relevant.
Division 4—Revocation if coverage determination not made
123—Light regulation determination revoked if coverage determination not
made
(1) This section
applies if—
(a) a
light regulation determination has been made in respect of pipeline services;
but
(b) the
pipeline by means of which those services will be provided does not become a
covered pipeline because the relevant Minister, contrary to a coverage
recommendation recommending coverage, makes a decision not to make a coverage
determination.
(2) The light
regulation determination is, by force of this section, revoked on the same day
as the relevant Minister's decision not to make a coverage determination takes
effect.
Division 5—Effect of pipeline ceasing to be covered pipeline
124—Light regulation services cease to be such services on cessation of
coverage of pipeline
If a pipeline by means of which light regulation services are provided ceases
to be a covered pipeline because of a coverage revocation determination—
(a) the
light regulation determination applying to the light regulation services
provided by means of that pipeline is, by force of this section, revoked on
the same day the coverage revocation determination takes effect; and
(b) to
avoid doubt, the light regulation services to which that determination applied
cease to be light regulation services on the same day.
Division 6—AER reviews into designated pipelines
125—AER reviews
(1) The MCE may
request the AER to conduct a review into, and report to it as to, whether a
pipeline should continue to be a designated pipeline.
(2) A service provider
that provides pipeline services by means of a designated pipeline may request
the AER to conduct a review into, and report to the MCE as to, whether that
pipeline should continue to be a designated pipeline.
(3) A request under
subsection (1) or (2) must be in writing.
(4) On receiving a
request under this section, the AER must conduct a review as to whether the
pipeline the subject of the request should continue to be a designated
pipeline.
(5) In conducting a
review under this section, the AER must—
(a) have
regard to—
(i)
the national gas objective; and
(ii)
whether there has been a material change in competition
in a market served by the designated pipeline; and
(b)
consult, in accordance with the Rules, with the public.
(6) On the completion
of a review under this section, the AER must prepare a report and—
(a) give
the report to the MCE; and
(b)
publish the report on its website.
(7) The AER must also
give a copy of the report to the service provider that has requested the
review.
Part 3—Coverage of pipelines the subject of tender process
126—Tender approval pipelines deemed to be covered pipelines
(1) A pipeline to
which a tender approval decision relates is deemed to be a covered pipeline on
and from the date the tender approval decision becomes irrevocable by
operation of the Rules.
(2) The pipeline
ceases to be a covered pipeline—
(a) if
there is an applicable access arrangement that applies to the pipeline
services provided, or that are to be provided by means of that
pipeline—when that arrangement expires; or
(b) when
a coverage revocation determination made in respect of that pipeline takes
effect.
Note—
Under the Rules, the NCC will—
(a)
classify the pipeline to be constructed and operated in accordance with an
approved tender process as a cross boundary transmission pipeline, cross
boundary distribution pipeline, transmission pipeline or distribution
pipeline; and
(b)
determine the relevant Minister for the purposes of that pipeline.
Part 4—Coverage following approval of voluntary access arrangement
127—Certain pipelines become covered pipelines on approval of voluntary
access arrangement
(1) This section
applies if—
(a) a
service provider voluntarily submits to the AER for approval by the AER, under
the Rules, a full access arrangement that will apply to the pipeline services
provided, or that are to be provided, by means of a pipeline; and
(b) that
pipeline is not a covered pipeline.
(2) The pipeline is
deemed to be a covered pipeline on the day the voluntarily submitted full
access arrangement takes effect as an applicable access arrangement.
(3) The pipeline
ceases to be a covered pipeline—
(a) when
the applicable access arrangement that applies to the pipeline services
provided, or that are to be provided, expires; or
(b) when
a coverage revocation determination is made in respect of that pipeline takes
effect.
Note—
Under the Rules, the NCC will—
(a)
classify the pipeline (by means of which the pipeline services to which the
arrangement relates are provided) as a cross boundary transmission pipeline,
cross boundary distribution pipeline, transmission pipeline or distribution
pipeline; and
(b)
determine the relevant Minister for the purposes of that pipeline.
Part 5—Reclassification of pipelines
128—Service provider may apply for reclassification of pipeline
(1) A service provider
may, in respect of a pipeline by means of which the service provider provides
pipeline services, apply to the NCC for the pipeline to be reclassified
as—
(a) if
the pipeline is a transmission pipeline—a distribution pipeline; or
(b) if
the pipeline is a distribution pipeline—a transmission pipeline.
(2) The application
must be accompanied by the fee prescribed by the Regulations (if any).
129—Reclassification decision
(1) The NCC must make
a decision (a reclassification decision ) within—
(a) 4
months after receiving an application under section 128; or
(b) if
the Rules specify a later period, that period.
(2) A reclassification
decision must—
(a) be
made in accordance with this Law and the Rules; and
(b)
contain the information required by the Rules; and
(c) be
given to the persons specified by the Rules; and
(d) be
made publicly available in accordance with the Rules.
(3) In making a
reclassification decision, the NCC must have regard to—
(a) the
national gas objective; and
(b) the
pipeline classification criterion.
(4) The NCC must also
as part of the reclassification decision—
(a) if
it reclassifies the pipeline the subject of the application as a transmission
pipeline—determine whether the transmission pipeline is also a cross
boundary transmission pipeline;
(b) if
it reclassifies the pipeline the subject of the application as a distribution
pipeline—determine whether the distribution pipeline is also a cross
boundary distribution pipeline.
(5) If, under
subsection (4), the NCC determines that a pipeline reclassified as a
distribution pipeline is also a cross boundary distribution pipeline, the NCC
must determine the participating jurisdiction with which the cross boundary
distribution pipeline is most closely connected. In doing so, the NCC must
have regard to the jurisdictional determination criteria.
130—Effect of reclassification decision
On the making of a reclassification decision—
(a) the
pipeline is, in accordance with the decision, reclassified as either a
transmission pipeline or distribution pipeline; and
(b) the
relevant Minister in respect of the pipeline is the relevant Minister as
provided under this Law.
Chapter 4—General requirements for provision of covered pipeline
services
Part 1—General duties for provision of pipeline services by covered
pipelines
131—Service provider must be legal entity of a specified kind to provide
pipeline services by covered pipeline
A covered pipeline service provider must not provide a pipeline service by
means of a covered pipeline unless the service provider is—
(a) a
legal entity registered under the Corporations Act 2001 of the Commonwealth;
or
(b) a
foreign company; or
(c) a
corporation established by or under a law of this jurisdiction or another
participating jurisdiction, whether or not that corporation has been
established for a public purpose; or
(d) the
Crown in right of this jurisdiction or another participating jurisdiction; or
(e) a
person referred to in paragraph (a) to (d) and that person provides a
pipeline service by means of a covered pipeline together with another person
referred to in paragraph (a) to (d).
132—Submission of full access arrangement or revisions to applicable
full access arrangements
(1) A covered pipeline
service provider must submit to the AER, for approval by the AER under the
Rules, a full access arrangement or revisions to an applicable access
arrangement that is a full access arrangement, in respect of the pipeline
services the provider provides or intends to provide—
(a) in
the circumstances specified by the Rules; and
(b)
within the period of time specified by the Rules.
(2)
Subsection (1) does not apply—
(a) if
the pipeline services that are, or are intended to be, provided by the service
provider light regulation services; or
(b) to
the extent the Rules provide subsection (1) is not to apply.
Note—
A service provider who provides or intends to provide pipeline services by
means of an international pipeline to which a price regulation applies must
submit a limited access arrangement to the AER for approval: see
section 168.
133—Preventing or hindering access
(a) a
covered pipeline service provider; or
(i)
is a party to an agreement with a service provider
relating to a pipeline service provided by means of a covered pipeline; or
(ii)
as a result of an access determination is entitled to a
pipeline service provided by means of a covered pipeline; or
(c) an
associate of a service provider or a person referred to in paragraph (b),
must not engage in conduct for the purpose of preventing or hindering the
access of another person to a pipeline service provided by means of the
covered pipeline.
(2) For the purposes
of subsection (1), a person is deemed to engage in conduct for a
particular purpose if—
(a) the
conduct is or was engaged in for that purpose or for a purpose that includes,
or included, that purpose; and
(b) that
purpose is or was a substantial purpose.
(3) A person may be
taken to have engaged in conduct for the purpose referred to in
subsection (1) even though, after all the evidence has been considered,
the existence of that purpose is ascertainable only by inference from the
conduct of the person or of any other person or from other relevant
circumstances.
(4)
Subsection (3) does not limit the manner in which the purpose of a person
may be established for the purpose of subsection (1).
(5) In this
section—
(a) a
reference to engaging in conduct is a reference to doing or refusing to do any
act, including refusing to supply a pipeline service or, without reasonable
grounds, limiting or disrupting a pipeline service, or making, or giving
effect to, a provision of, a contract or arrangement, arriving at, or giving
effect to, a provision of, an understanding or requiring the giving of, or
giving, a covenant;
(b) a
reference to refusing to do an act includes a reference to—
(i)
refraining (otherwise than inadvertently) from doing that
act; or
(ii)
making it known that that act will not be done.
(6)
Subsection (1) does not apply to conduct engaged in in accordance with an
agreement, if the agreement was in force on 30 March 1995.
Example—
An example of conduct which may be prohibited if the requisite purpose is
established is refusing to supply, or limiting or disrupting the supply of, a
pipeline service to a user or prospective user for technical or safety reasons
without reasonable grounds.
134—Supply and haulage of natural gas
(1) If a producer
states terms and conditions (whether or not including the price) ( the first
terms ) on which the producer offers to supply natural gas through a covered
pipeline that is in operation at the time of the offer to a person at a place
other than the exit flange of the producer's processing plant, the producer
must, on request by the person, state terms and conditions (including the
price, if the price was included in the first terms) ( the second terms ) on
which the producer will supply natural gas to the person at the exit flange.
(2) If there is a
difference in the price stated in the first terms and the second terms, the
producer must include in the second terms a statement of the reasons for the
difference.
(3) If the producer
offers to supply natural gas to a person at a place other than the exit flange
of the producer's processing plant, the producer must, on request, offer to
supply the gas at the exit flange on the terms and conditions (including
price) stated in accordance with this section.
135—Covered pipeline service provider must comply with queuing
requirements
A covered pipeline service provider must comply with the queuing requirements
of an applicable access arrangement.
136—Covered pipeline service provider providing light regulation
services must not price discriminate
(1) A covered pipeline
service provider must not engage in price discrimination when providing light
regulation services.
(2)
Subsection (1) does not apply if the covered pipeline service provider
engages in price discrimination that is conducive to efficient service
provision.
Part 2—Structural and operational separation requirements (ring fencing)
Division 1—Interpretation
137—Definitions
In this Part—
additional ring fencing requirement has the meaning given by
section 143(1);
compliance date means the date that is 6 months after the date a pipeline
becomes a covered pipeline;
marketing staff has the meaning given by section 138;
related business means the business of producing, purchasing or selling
natural gas or processable gas, but does not include purchasing or selling of
natural gas or processable gas to the extent necessary—
(a) for
the safe and reliable operation of a covered pipeline; or
(b) to
enable a service provider to provide balancing services in connection with a
covered pipeline.
138—Meaning of marketing staff
(1) A person is
marketing staff of—
(a) a
covered pipeline service provider, if the person—
(i)
is an officer, employee, consultant or independent
contractor or agent of the covered pipeline service provider; and
(ii)
is directly involved in the sale, marketing or
advertising of pipeline services (whether or not the person is also involved
in other activities);
(b) an
associate of a covered pipeline service provider, if the person—
(i)
is an officer, employee, consultant or independent
contractor or agent of the associate; and
(ii)
is directly involved in the sale, marketing or
advertising of pipeline services (whether or not the person is also involved
in other activities).
(2) A person is not
marketing staff of a covered pipeline service provider, or an associate of a
covered pipeline service provider, if—
(a) the
person's function or role (as an officer, employee, consultant or independent
contractor or agent of a covered pipeline service provider, or an associate of
a covered pipeline service provider) is only to provide technical,
administrative, legal and accounting services to that provider or associate;
or
(b) the
sale, marketing or advertising of pipeline services is only an incidental part
of the person's function or role (as an officer, employee, consultant or
independent contractor or agent of a covered pipeline service provider, or an
associate of a covered pipeline service provider).
Example—
A person in the position of general manager of marketing of a covered pipeline
service provider or an associate of a covered pipeline service provider would
be marketing staff whereas a person in the position of chief executive
officer, or chief financial officer, of a covered pipeline service provider or
an associate of a covered pipeline service provider would not be marketing
staff.
Division 2—Minimum ring fencing requirements
139—Carrying on of related businesses prohibited
On and after the compliance date, a covered pipeline service provider must not
carry on a related business.
140—Marketing staff and the taking part in related businesses
(1) On and after the
compliance date, a covered pipeline service provider must ensure that none of
its marketing staff are officers, employees, consultants, independent
contractors or agents of an associate of the covered pipeline service provider
that takes part in a related business.
(2) On and after the
compliance date, a covered pipeline service provider must ensure that none of
its officers, employees, consultants, independent contractors or agents are
marketing staff of an associate of the covered pipeline service provider that
takes part in a related business.
141—Accounts that must be prepared, maintained and kept
On and after the compliance date, a covered pipeline service provider must
prepare, maintain and keep—
(a)
separate accounts in respect of pipeline services provided by means of every
covered pipeline owned, operated or controlled by the covered pipeline service
provider; and
(b) a
consolidated set of accounts in respect of the whole of the business of the
covered pipeline service provider.
Division 3—Additional ring fencing requirements
142—Division does not limit operation of Division 2
This Division does not limit Division 2.
143—AER ring fencing determinations
(1) Subject to this
Division and subject to and in accordance with the Rules, the AER may make a
determination requiring a covered pipeline service provider or associate of a
covered pipeline service provider named in the determination to do, or refrain
from doing, a thing specified in the determination (an additional ring fencing
requirement ).
(2) In specifying an
additional ring fencing requirement the AER must have regard to the following
principles:
(a) in
the case where 1 part of the business of a covered pipeline service provider (
business unit A ) is providing pipeline services to another part of the
business of the covered pipeline service provider ( business unit B ), the
covered pipeline service provider must ensure that business unit A provides
the pipeline services to business unit B as if business unit B were a separate
unrelated entity;
(b) in
the case where a covered pipeline service provider is providing pipeline
services to an associate of the service provider, the covered pipeline service
provider must ensure that those services are provided as if the associate of
the covered pipeline service provider were a separate unrelated entity;
(c)
users and prospective users should have sufficient information in order to
understand whether a covered pipeline service provider is complying with
paragraph (a) or (b).
(a)
notify, in writing, the covered pipeline service provider or associate named
in the AER ring fencing determination of the making of that determination; and
(b) give
the covered pipeline service provider or associate a copy of the AER ring
fencing determination.
(4) An AER ring
fencing determination must specify the date on and after which the covered
pipeline service provider or associate of a covered pipeline service provider
must do, or refrain from doing, a thing specified in the determination (a
notified compliance date ).
(5) A notified
compliance date must not be a date that is earlier than 10 business days after
the date the covered pipeline service provider or associate of a covered
pipeline service provider is given a copy of the AER ring fencing
determination.
(6) A covered pipeline
service provider or associate of a covered pipeline service provider must
comply with every additional ring fencing requirement specified in an AER ring
fencing determination on and after the notified compliance date.
144—AER to have regard to likely compliance costs of additional ring
fencing requirements
In making an AER ring fencing determination the AER must have regard to the
likely costs that may be incurred by, as the case requires—
(a) an
efficient covered pipeline service provider; or
(b) an
efficient associate of a covered pipeline service provider,
in complying with an additional ring fencing requirement specified in the
determination.
145—Types of ring fencing requirements that may be specified in an AER
ring fencing determination
Without limiting what may be specified as an additional ring fencing
requirement, the AER, in an AER ring fencing determination, may require a
covered pipeline service provider to—
(a)
ensure that its business and business activities are conducted, structured and
arranged in the particular manner specified;
Example 1—
An AER ring fencing determination may require the covered pipeline service
provider to ensure that persons employed or engaged by the covered pipeline
service provider in relation to the provision of pipeline services are not
also associates, or employed by associates, of the covered pipeline service
provider that take part in a related business and how this must be effected.
Example 2—
An AER ring fencing determination may require the covered pipeline service
provider to put in place electronic, physical and procedural security measures
in respect of the offices and computer systems of the covered pipeline service
provider, and of the offices and computer systems of its associates, so that
certain specified employees or persons engaged by the covered pipeline service
provider do not have access to certain specified information.
(b) in a
specified manner, disclose, to the AER and to the public, specified
information in a specified manner about its business operations, structure and
arrangements, and its business activities.
Division 4—AER ring fencing exemptions
146—Exemptions from minimum ring fencing requirements
(1) A covered pipeline
service provider may, in accordance with the Rules, apply to the AER for an
exemption from—
(a) the
requirement under section 139; or
(b) a
requirement under section 140; or
(c) the
requirement under section 141.
(2) On receiving an
application under subsection (1), the AER, subject to and in accordance
with the Rules, may exempt a covered pipeline service provider from—
(a) the
requirement under section 139; or
(b) a
requirement under section 140; or
(c) the
requirement under section 141.
Division 5—Associate contracts
147—Service provider must not enter into or give effect to associate
contracts that have anti-competitive effect
A covered pipeline service provider must not—
(a)
enter into an associate contract that has; or
(b) vary
an associate contract so that contract, as varied, has; or
(c) give
effect to a provision of an associate contract that has,
the purpose, or would have or be likely to have the effect, of substantially
lessening competition in a market for natural gas services unless—
(d) that
associate contract is an approved associate contract; or
(e) that
provision is contained in an approved associate contract.
148—Service provider must not enter into or give effect to associate
contracts inconsistent with competitive parity rule
(1) A covered pipeline
service provider must not—
(a)
enter into an associate contract that is; or
(b) vary
an associate contract so that contract, as varied, is; or
(c) give
effect to a provision of an associate contract that is,
inconsistent with the competitive parity rule unless—
(d) that
associate contract is an approved associated contract; or
(e) that
provision is contained in an approved associate contract.
(2) For the purposes
of subsection (1), and any Rules made for the purposes of that
subsection, the competitive parity rule is the rule that a covered pipeline
service provider must ensure that any pipeline services that the covered
pipeline service provider provides to an associate of the covered pipeline
service provider are provided to that associate as if that associate were a
separate unrelated entity.
Chapter 5—Greenfields pipeline incentives
Part 1—Interpretation
149—Definitions
In this Chapter—
excluded infrastructure , in relation to a pipeline, means tanks, reservoirs,
machinery, equipment or other infrastructure that forms part of the pipeline
but is classified by the Rules as excluded infrastructure for the purposes of
this Law;
greenfields pipeline project means a project for the construction of—
(a) a
pipeline that is to be structurally separate from any existing pipeline
(whether or not it is to traverse a route different from the route of an
existing pipeline); or
(b) a
major extension to an existing pipeline that is not a covered pipeline; or
(c) a
major extension to a covered pipeline by means of which light regulation
services are provided if that extension is exempted by the AER under
section 19.
150—International pipeline to be a transmission pipeline for purposes of
Chapter
An international pipeline is, for the purposes of this Chapter, a transmission
pipeline.
Part 2—15-year no-coverage determinations
151—Application for 15-year no-coverage determination for proposed
pipeline
(1) If a greenfields
pipeline project is proposed, or has commenced, the service provider may,
before the pipeline is commissioned, apply for a determination (a 15-year
no-coverage determination ) exempting the pipeline from being a covered
pipeline.
(2) If a price
regulation exemption has been granted for an international pipeline, an
application for a 15-year no-coverage determination for the pipeline may be
made by the service provider—
(a)
before the pipeline is commissioned; or
(b)
after the pipeline is commissioned but before the term of the price regulation
exemption comes to an end.
(3) An application for
a 15-year no-coverage determination—
(a) is
to be made to the NCC; and
(b) must
include a description of the pipeline that meets the requirements specified by
the Rules; and
(c) must
contain the information required by the Rules; and
(d) need
not describe, or include details of, excluded infrastructure; and
(e) must
be accompanied by the fee prescribed by the Regulations (if any).
(4) In this
section—
service provider includes a person that intends to be a service provider.
152—Application to be dealt with in accordance with the Rules
On receiving an application under section 151, the NCC must deal with it
in accordance with the Rules.
153—No-coverage recommendation
(1) The NCC must make
a recommendation recommending to the relevant Minister that the pipeline the
subject of the application—
(a) be
exempted from being a covered pipeline for a period of 15 years; or
(b) not
be exempted from being a covered pipeline for a period of 15 years.
(2) A recommendation
under this section must—
(a) be
made in accordance with this Law and the Rules; and
(b) be
made within the time specified by the Rules; and
(c)
contain the information required by the Rules; and
(d) be
given to the persons specified by the Rules; and
(e) be
made publicly available in accordance with the Rules.
(3) A recommendation
under this section may recommend an outcome different to the outcome sought in
the application under section 151.
Example—
An applicant may apply for a 15-year no-coverage determination in relation to
the whole pipeline. The NCC may recommend that only a part of the pipeline the
subject of the application be subject to a 15-year no-coverage determination.
(4) A recommendation
under this section must be delivered to the relevant Minister without delay.
154—Principles governing the making of a no-coverage recommendation
(1) In making a
no-coverage recommendation, the NCC—
(a) must
give effect to the pipeline coverage criteria; and
(b) in
deciding whether or not the pipeline coverage criteria are satisfied must have
regard to the national gas objective.
(2) The NCC gives
effect to the pipeline coverage criteria as follows:
(a) if
the NCC is satisfied that all the pipeline coverage criteria are satisfied in
relation to the pipeline the recommendation must be against making a 15-year
no-coverage determination;
(b) if
the NCC is not satisfied that all the pipeline coverage criteria are satisfied
in relation to the pipeline the recommendation must be in favour of making a
15-year no coverage determination.
155—Initial classification decision to be made as part of recommendation
(1) If the pipeline
the subject of an application under section 151 is not an international
pipeline, the NCC must, as part of a no-coverage recommendation, classify the
pipeline as a transmission pipeline or a distribution pipeline (an initial
classification decision ). In doing so, the NCC must apply the pipeline
classification criterion.
(2) The NCC must as
part of an initial classification decision—
(a) if
it classifies the pipeline the subject of the application as a transmission
pipeline—determine whether the transmission pipeline is also a cross
boundary transmission pipeline; or
(b) if
it classifies the pipeline the subject of the application as a distribution
pipeline—determine whether the distribution pipeline is also a cross
boundary distribution pipeline.
(3) The NCC must also
determine, as part of an initial classification decision, the participating
jurisdiction with which the pipeline the subject of the application under
section 151 is most closely connected if the NCC determines the pipeline
is also a cross boundary distribution pipeline. In doing so, the NCC must have
regard to the jurisdictional determination criteria.
156—Relevant Minister's determination on application
(1) On receiving a
no-coverage recommendation the relevant Minister must decide whether or not to
make a 15-year no-coverage determination in respect of the pipeline to which
the recommendation relates.
(2) The relevant
Minister must use his or her best endeavours to make the decision within 30
business days after receiving the coverage recommendation.
(3) If the relevant
Minister is unable to make the decision within the period specified under
subsection (2), he or she must make the decision as soon as reasonably
practicable after the end of the specified period.
(4) The relevant
Minister, for the purpose of making the decision, may request submissions or
comments in relation to an application under section 151.
(5) A 15-year
no-coverage determination or a decision not to make a 15-year no-coverage
determination must—
(a) be
made in accordance with this Law and the Rules; and
(b)
contain the information required by the Rules; and
(c) be
given to the persons specified by the Rules; and
(d) be
made publicly available in accordance with the Rules.
(6) A 15-year
no-coverage determination may have an outcome different to the outcome—
(a)
sought in the application under section 151; or
(b) of
the no-coverage recommendation.
Example—
An applicant may apply for a 15-year no-coverage determination in relation to
the whole pipeline. The NCC may recommend that only a part of the pipeline the
subject of the application be subject to a 15-year no-coverage determination.
The relevant Minister may make a 15-year no-coverage determination that
applies to different parts of the pipeline to those recommended by the NCC be
subject to the determination.
157—Principles governing the making of a 15-year no-coverage
determination or decision not to do so
(1) In deciding
whether to make a 15-year no-coverage determination under this Part, the
relevant Minister—
(a) must
give effect to the pipeline coverage criteria; and
(b) in
deciding whether or not the pipeline coverage criteria are satisfied in
relation to the pipeline—
(i)
must have regard to the national gas objective; and
(ii)
must have regard to the no-coverage recommendation; and
(iii)
must take into account any submissions or comments he or
she receives on a request under section 156(4); and
(iv)
may take into account any relevant submissions and
comments made to the NCC by the public under the Rules in relation to the
application.
(2) The relevant
Minister gives effect to the pipeline coverage criteria as follows:
(a) if
the Minister is satisfied that all the pipeline coverage criteria are
satisfied in relation to the pipeline the Minister must not make a 15-year
no-coverage determination;
(b) if
the Minister is not satisfied that all the pipeline coverage criteria are
satisfied in relation to the pipeline the Minister must make a 15-year
no-coverage determination.
158—Effect of 15-year no-coverage determination
(1) A 15-year
no-coverage determination—
(a)
takes effect on and from the date specified in the determination; and
(b)
continues in operation for a period of 15 years from the commissioning of the
pipeline.
(2) An application for
coverage of a pipeline to which a 15-year no-coverage determination applies
can be made before the end of the period for which the determination remains
in operation only if the coverage sought in the application is to commence
from, or after, the end of that period.
159—Consequences of Minister deciding against making 15-year no-coverage
determination for international pipeline
(1) If—
(a) the
Commonwealth Minister decides against making a 15-year no-coverage
determination for an international pipeline; and
(b) the
applicant asks the Commonwealth Minister to treat the application as an
application for a price regulation exemption,
the Commonwealth Minister may treat the application as an application for a
price regulation exemption under Chapter 5 Part 3.
(2) If the
Commonwealth Minister decides to treat an application for a 15-year
no-coverage determination as an application for a price regulation exemption,
the Commonwealth Minister may—
(a)
refer the application to the NCC for a recommendation under Chapter 5 Part 3;
or
(b)
proceed to determine the application without a recommendation under Chapter 5
Part 3.
Part 3—Price regulation exemptions
Division 1—Application for price regulation exemption
160—Application for price regulation exemption
(1) If a greenfields
pipeline project for construction of an international pipeline is proposed, or
has commenced, the service provider may, before the pipeline is commissioned,
apply for a price regulation exemption for the pipeline.
(2) An application for
a price regulation exemption—
(a) is
to be made to the NCC; and
(b) must
include a description of the pipeline that meets the requirements specified by
the Rules; and
(c) must
contain the information required by the Rules; and
(d) need
not describe, or include details of, excluded infrastructure; and
(e) must
be accompanied by the fee prescribed by the Regulations (if any).
(3) In this
section—
service provider includes a person that intends to be a service provider.
Division 2—Recommendations by NCC
161—Application to be dealt with in accordance with the Rules
On receiving an application under section 160, the NCC must deal with it
in accordance with the Rules.
162—NCC's recommendation
(1) The NCC must make
a recommendation to the Commonwealth Minister as to whether the Minister
should grant a price regulation exemption for the pipeline the subject of the
application.
(2) A recommendation
under this section must—
(a) be
made in accordance with this Law and the Rules; and
(b) be
made within the time specified by the Rules; and
(c)
contain the information required by the Rules; and
(d) be
given to the persons specified by the Rules; and
(e) be
made publicly available in accordance with the Rules.
(3) A recommendation
under this section must be delivered to the Commonwealth Minister without
delay.
163—General principle governing NCC's recommendation
(1) In making its
recommendation on an application for a price regulation exemption, the NCC
must weigh the benefits to the public of granting the exemption against the
detriments to the public.
(2) In doing so, the
NCC—
(a) must
have regard to the national gas objective with particular reference to—
(i)
the implications of the exemption for relevant markets
(including the effect on market power); and
(ii)
other possible effects on the public interest; and
(b) may
have regard to any other relevant matter.
Division 3—Making and effect of price regulation exemption
164—Making of price regulation exemption
(1) On receiving the
NCC's recommendation under section 162, the Commonwealth Minister must
decide whether to grant a price regulation exemption.
(2) The Commonwealth
Minister must use his or her best endeavours to make the decision within 10
business days after receiving the NCC's recommendation.
(3) If the
Commonwealth Minister is unable to make the decision within the period
specified under subsection (2), he or she must make the decision as soon
as reasonably practicable after the end of the specified period.
(4) A decision under
this section must—
(a) be
made in accordance with this Law and the Rules; and
(b)
contain the information required by the Rules; and
(c) be
given to the persons specified by the Rules; and
(d) be
made publicly available in accordance with the Rules.
165—Principles governing the making of a price regulation exemption
(1) In deciding
whether to make a decision to grant a price regulation exemption, the
Commonwealth Minister must weigh the benefits to the public of granting the
exemption against the detriments to the public.
(2) In doing so, the
Commonwealth Minister—
(a) must
have regard to the national gas objective with particular reference to—
(i)
the implications of the exemption for relevant markets
(including the effect on market power); and
(ii)
other possible effects of the exemption on the public
interest; and
(b) must
have regard to the NCC's recommendation; and
(c) may
take into account any relevant submissions and comments made to the NCC by the
public under the Rules in relation to the application; and
(d) may
have regard to any other relevant matter.
166—Conditions applying to a price regulation exemption
A price regulation exemption granted under this Part is subject to the
following conditions:
(a) the
service provider must publish on its website prices for the provision of
pipeline services by means of the international pipeline; and
(b) the
service provider's limited access arrangement and the register of spare
capacity are to be accessible on the service provider's website; and
(c) the
service provider—
(i)
must, as and when required by the AER or the Commonwealth
Minister, provide information requested by the AER or the Commonwealth
Minister (in a manner and form determined or approved by the AER or the
Commonwealth Minister) on access negotiations and the result of access
negotiations; and
(ii)
must report annually to the AER and the Commonwealth
Minister (in a manner and form approved by the AER or the Commonwealth
Minister) on access negotiations and the result of access negotiations.
Note—
See also sections 168 and 169(3).
167—Effect of price regulation exemption
(1) If a price
regulation exemption is granted, then for a period of 15 years from the
commissioning of the pipeline, the services provided by means of the pipeline
are not subject to price or revenue regulation under this Law or the Rules.
(2) A price regulation
exemption is, however, ineffective unless a limited access arrangement,
approved by the AER, is in force in relation to the relevant pipeline.
Note—
See also section 168.
(3) If, while a price
regulation exemption remains in force, the Commonwealth Minister makes a
15-year no-coverage determination for the pipeline, the 15-year no-coverage
determination supersedes the price regulation exemption (which is then
terminated) and remains in force for the balance of the period for which the
exemption was granted.
(4) An application for
coverage of a pipeline to which a price regulation exemption applies can only
be made before the end of the period of exemption if the coverage sought in
the application is to commence from, or after, the end of that period.
Division 4—Limited access arrangements
168—Limited access arrangements for pipeline services provided by
international pipeline to which a price regulation exemption applies
(1) A service provider
must, within 60 business days after the grant of a price regulation exemption,
submit a limited access arrangement to the AER for approval by the AER under
the Rules.
(2) A limited access
arrangement must—
(a) be
submitted in accordance with the Rules; and
(b)
contain the information required by the Rules.
(3) A service provider
must submit to the AER, for approval by the AER under the Rules, revisions to
an applicable access arrangement that is a limited access arrangement and that
applies to the pipeline service to which that arrangement applies—
(a) in
accordance with the Rules; and
(b)
within the period specified by the Rules.
Division 5—Other matters
169—Other obligations to which service provider is subject
(1) The service
provider for a pipeline to which a price regulation exemption applies is
subject to the following provisions as if the pipeline were a covered
pipeline:
(a)
Chapter 4 Part 1 (except sections 132 and 136); and
(b)
Chapter 4 Part 2.
(2) The service
provider for a pipeline to which a price regulation exemption applies must
comply with any Rules that—
(a)
relate to the facilitation of, and request for access to, pipeline services
provided by means of that pipeline; and
(b)
apply to the service provider or a class of person of which the service
provider is a member.
(3) A service provider
must ensure compliance with conditions to which the price regulation exemption
is subject.
Note—
See also section 160.
170—Service provider must not price discriminate in providing
international pipeline services
(1) A service provider
must not, when providing pipeline services—
(a) by
means of an international pipeline to which a price regulation exemption
applies; and
(b) to
which a limited access arrangement applies,
engage in price discrimination.
(2)
Subsection (1) does not apply if the service provider engages in price
discrimination that is conducive to efficient service provision.
Part 4—Extended or modified application of greenfields pipeline
incentive
171—Requirement for conformity between pipeline description and pipeline
as constructed
(1) Subject to this
Part—
(a) a
greenfields pipeline incentive applies to the pipeline as described in the
relevant pipeline description; and
(b) if
the pipeline, as constructed, materially differs from the pipeline as
described in the relevant pipeline description, the incentive does not attach
to the pipeline and the service provider is not entitled to its benefit.
(2) In determining
whether a pipeline, as constructed, materially differs from the relevant
pipeline description, excluded infrastructure is not to be taken into account.
(3) In this
section—
relevant pipeline description means a description of a pipeline required to be
included in an application under section 151 or 160.
172—Power of relevant Minister to amend pipeline description
(1) The relevant
Minister may, on application by the service provider for a pipeline for which
a greenfields pipeline incentive has been granted, amend the relevant pipeline
description.
(2) An amendment
cannot, however, be made under this section after the pipeline has been
commissioned.
(3) The relevant
Minister—
(a) may
refer an application for amendment to a pipeline description to the NCC for
advice; and
(b) if
the amendment sought involves a substantial change to the pipeline description
as it currently exists must refer the application to the NCC for advice.
(4) In giving its
advice to the relevant Minister, the NCC must have regard to the criteria that
were relevant to the grant of the greenfields pipeline incentive.
(5) In deciding
whether to make the amendment sought, the relevant Minister—
(a) must
have regard to the criteria that were relevant to the grant of the greenfields
pipeline incentive; and
(b) if
the application has been referred to the NCC for advice must consider the
NCC's advice.
Part 5—Early termination of greenfields pipeline incentive
173—Greenfields pipeline incentive may lapse
(1) A greenfields
pipeline incentive lapses if the pipeline for which it was granted is not
commissioned within 3 years after the incentive was granted.
(2) The Regulations
may, in a particular case, extend the period of 3 years referred to in
subsection (1).
174—Revocation by consent
The relevant Minister may, at the request of the service provider, revoke a
greenfields pipeline incentive.
175—Revocation for misrepresentation
The relevant Minister may, on application by the AER, revoke a greenfields
pipeline incentive on the ground that—
(a) the
applicant misrepresented a material fact on the basis of which the application
was granted; or
(b) the
applicant failed to disclose material information that the applicant was
required to disclose under this Chapter.
176—Revocation for breach of condition to which a price regulation
exemption is subject
The Commonwealth Minister, on application by the AER, may revoke a price
regulation exemption on the ground that the service provider has breached a
condition to which the price regulation exemption is subject.
177—Exhaustive provision for termination of greenfields pipeline
incentive
A greenfields pipeline incentive does not terminate, and cannot be revoked,
before the end of its term except as provided in this Part.
Chapter 6—Access disputes
Part 1—Interpretation and application
178—Definitions
In this Chapter—
access dispute means a dispute between a user or prospective user and a
service provider about 1 or more aspects of access to a pipeline service
provided by means of a scheme pipeline;
access dispute pipeline means a scheme pipeline used or that could be used to
provide a pipeline service that is the subject of an access dispute;
dispute hearing means a hearing conducted by the dispute resolution body for
the purpose of making an access determination;
party , in relation to an access dispute, has the meaning given by
section 183.
179—Chapter does not limit how disputes about access may be raised or
dealt with
This Chapter is not to be taken to limit how a dispute about access to a
pipeline service may be raised or dealt with.
180—No price or revenue regulation for access disputes relating to
international pipeline services
An access dispute notified under this Chapter in relation to a pipeline
service provided by means of an international pipeline to which a price
regulation exemption applies must not be resolved under this Chapter on
terms—
(a)
regulating the price at which a service is to be provided by the service
provider; or
(b)
limiting the revenue to be derived by the service provider from the provision
of a service.
Part 2—Notification of access dispute
181—Notification of access dispute
(1) Subject to this
section, if a prospective user or user is unable to agree with a service
provider about 1 or more aspects of access to a pipeline service provided or
to be provided by means of a scheme pipeline, the prospective user, user or
service provider may notify the dispute resolution body, in writing, that an
access dispute exists.
Note—
A dispute about access to a light regulation service may be notified under
this section because light regulation services are pipeline services provided
by means of a covered pipeline (which is a scheme pipeline).
(2) A notification
must be accompanied by the fee prescribed by the Regulations (if any).
(3) On receiving a
notification under subsection (1), the dispute resolution body must
notify, in writing, of the access dispute—
(a) the
service provider, if a prospective user or user (as the case requires)
notified the dispute resolution body of the access dispute under
subsection (1);
(b) the
prospective user or user (as the case requires), if the service provider
notified the dispute resolution body of the access dispute under
subsection (1).
182—Withdrawal of notification
(1) The person who
notified the dispute resolution body of an access dispute under
section 181(1) may withdraw that notification at any time before the
dispute resolution body makes an access determination in respect of that
access dispute.
(2) The notification
must be withdrawn by notice in writing.
(3) If the
notification is withdrawn, it must be taken, for the purposes of this Chapter,
never to have been given.
183—Parties to an access dispute
The parties to an access dispute are—
(a) the
person notifying the dispute resolution body of an access dispute under
section 181(1); and
(b) a
person notified by the dispute resolution body under section 181(3); and
(c) if
the dispute resolution body is of the opinion that the resolution of the
access dispute may involve requiring another person to do something—that
other person; and
(d) any
other person who applies in writing to be made a party and is accepted by the
dispute resolution body as having a sufficient interest.
Part 3—Access determinations
184—Determination of access dispute
(1) Unless the dispute
resolution body terminates an access dispute under section 186, the
dispute resolution body must make a determination on access by the prospective
user or user, as the case requires.
(2) In making an
access determination the dispute resolution body must comply with this Chapter
and the Rules.
(3) An access
determination must—
(a) be
in writing; and
(b)
include a statement of reasons for making the determination; and
(c) be
given to the parties without delay.
(4) An access
determination has effect on and after the date specified in the determination.
185—Dispute resolution body may require parties to mediate, conciliate
or engage in an alternative dispute resolution process
(1) The dispute
resolution body may require the parties, in accordance with the Rules, to
mediate, conciliate or engage in another alternative dispute resolution
process for the purpose of resolving the dispute.
(2) A party must
comply with a requirement under subsection (1).
186—Dispute resolution body may terminate access dispute in certain
cases
(1) The dispute
resolution body may at any time terminate an access dispute (without making an
access determination) if the dispute resolution body considers that—
(a) the
notification of the access dispute was vexatious; or
(b) the
subject matter of the dispute is trivial, misconceived or lacking in
substance; or
(c) the
party who notified the access dispute had, but did not avail itself of, an
opportunity to engage in negotiations in good faith with the other party
before that notification; or
(d) a
specified dispute termination circumstance has occurred.
(2) Subject to
section 188, the dispute resolution body may also terminate an access
dispute (without making an access determination) if the dispute resolution
body considers that the aspect of access about which there is a dispute is
expressly or impliedly dealt with under a contract between, as the case
requires—
(a) the
prospective user and service provider;
(b) the
user and service provider.
(3) In this
section—
specified dispute termination circumstance means a circumstance specified by
the Rules as being a circumstance, the occurrence of which, entitles the
dispute resolution body to terminate an access dispute (without making an
access determination).
187—No access determination if dispute resolution body considers there
is genuine competition
Despite anything to the contrary in this Chapter, the dispute resolution body
may refuse to make an access determination that requires the service provider
to provide a particular pipeline service to a prospective user or user if the
dispute resolution body considers that the pipeline service the subject of the
access dispute could be provided on a genuinely competitive basis by a person
other than the service provider or an associate of the service provider.
188—Restrictions on access determinations
(1) The dispute
resolution body must not make an access determination that would have any of
the following effects:
(a)
preventing a user obtaining a sufficient amount of a pipeline service under a
contract or previous access determination to be able to meet the user's
reasonably anticipated requirements, measured at the time the access dispute
was notified;
(b)
preventing a prospective user or user from obtaining, by the exercise of a
pre-notification right, a sufficient amount of a pipeline service to be able
to meet the prospective user's or user's actual requirements;
(c)
depriving a person of a relevant protected contractual right.
(2) In this
section—
pre-notification right means a right under a contract, or under an access
determination, that was in force at the time when the access dispute was
notified under section 181;
relevant exclusivity right means an express contractual right that arose on or
after 30 March 1995 that—
(a)
prevents a service provider supplying pipeline services to persons who are not
parties to the contract; or
(b)
limits or controls a service provider's ability to supply pipeline services to
persons who are not parties to the contract,
but does not include a user's contractual right to obtain a certain amount of
pipeline services;
relevant protected contractual right means a right under a contract (other
than a relevant exclusivity right) that was in force immediately before the
notification of an access dispute under section 181.
189—Access determination must give effect to applicable access
arrangement
Subject to sections 190 and 191 and any Rules made for the purposes of
this Part, the dispute resolution body must, in making an access
determination, give effect to the applicable access arrangement—
(a)
applying to the pipeline services provided, or to be provided, by means of the
access dispute pipeline; and
(b) in
effect at the time the determination is made,
(even though that arrangement may not have been in force when notification of
the access dispute was given).
190—Access determinations and past contributions of capital to fund
installations or the construction of new facilities
(1) In making an
access determination, the dispute resolution body may (where relevant) take
into account past contributions of capital to fund installations or the
construction of new facilities.
(2) Without limiting
section 74, the Rules may—
(a)
specify the matters that the dispute resolution body must address in making
that access determination;
(b)
specify the content of that access determination.
191—Rules may allow determination that varies applicable access
arrangement for installation of a new facility
(1) This section
applies if the dispute resolution body is proposing to make an access
determination that will require—
(a) a
service provider to install or construct a new facility to expand the capacity
of the access dispute pipeline; and
(b) the
prospective user or user who is a party to the access dispute to contribute
some or all of the capital to fund the installation or construction of the new
facility.
(2) Without limiting
section 74, the Rules may—
(a)
confer a function or power on the dispute resolution body to, when making the
access determination, vary the applicable access arrangement; and
(b)
specify the matters that the dispute resolution body must address in making
that access determination; and
(c)
specify the kinds of variations that may be made to the applicable access
arrangement; and
(d)
specify the content of that access determination.
192—Access determinations need not require the provision of a pipeline
service
An access determination may, but need not, require a service provider to
provide a pipeline service to a prospective user.
193—Content of access determinations
Subject to this Chapter, an access determination may deal with any matter
relating to the provision of a pipeline service to a prospective user or user.
Example—
An access determination may require the service provider to provide a pipeline
service to the prospective user or user at—
(a) a
specified tariff, rate or charge; and
(b) on
specified terms and conditions.
Part 4—Variation of access determinations
194—Variation of access determination
(1) The dispute
resolution body may vary an access determination on the application of any
party to the determination. However, it cannot vary the final determination if
any other party objects.
Note—
If the parties cannot agree on a variation, a new access dispute can be
notified under section 181.
(2) Section 188
applies to a variation under this section as if—
(a) an
access dispute arising out of the access determination had been notified when
the application was made to the dispute resolution body for the variation of
the determination; and
(b) the
variation were the making of an access determination in the terms of the
varied determination.
Part 5—Compliance with access determinations
195—Compliance with access determination
A party to an access dispute in respect of which an access determination is
made must comply with the access determination.
Part 6—Access dispute hearing procedure
196—Hearing to be in private
(1) Subject to
subsection (2), a dispute hearing is to be in private.
(2) If the parties
agree, a dispute hearing or part of a dispute hearing may be conducted in
public.
(3) The dispute
resolution body may give written directions as to the persons who may be
present at a dispute hearing that is conducted in private.
(4) In giving
directions under subsection (3), the dispute resolution body must have
regard to the wishes of the parties and the need for commercial
confidentiality.
197—Right to representation
In a dispute hearing a party may appear in person or be represented by another
person.
198—Procedure of dispute resolution body
(1) In a dispute
hearing the dispute resolution body—
(a) is
not bound by technicalities, legal forms or rules of evidence; and
(b) must
act as speedily as a proper consideration of the access dispute allows, having
regard to the need to carefully and quickly inquire into and investigate the
access dispute and all matters affecting the merits, and fair settlement, of
the access dispute; and
(c) may
inform itself about any matter relevant to the access dispute in any way it
thinks appropriate.
(2) The dispute
resolution body may determine the periods that are reasonably necessary for
the fair and adequate presentation of the respective cases of the parties in
the dispute hearing, and may require that the cases be presented within those
periods.
(3) The dispute
resolution body may require evidence or argument to be presented in writing,
and may decide the matters on which the dispute resolution body will hear oral
evidence or argument.
(4) The dispute
resolution body may determine that a dispute hearing is to be conducted
by—
(a)
telephone; or
(b)
closed circuit television; or
(c) any
other means of communication.
(5) The Rules may make
further provision about the procedure for the conduct of dispute hearings.
199—Particular powers of dispute resolution body in a hearing
(1) The dispute
resolution body may do any of the following things for the purpose of
determining an access dispute:
(a) give
a direction in the course of, or for the purpose of, a dispute hearing;
(b) hear
and determine the access dispute in the absence of a party who has been given
notice of the dispute hearing;
(c) sit
at any place;
(d)
adjourn to any time and place;
(e)
refer any matter to an independent expert and accept the expert's report as
evidence.
(2) The dispute
resolution body may make an interim determination.
200—Disclosure of information
(1) The dispute
resolution body may give an oral or written order to a person not to divulge
or communicate to anyone else specified information that was given to the
person in the course of an access dispute unless the person has the dispute
resolution body's permission.
(2) A person must not,
without reasonable excuse, refuse or fail to comply with an order under
subsection (1).
Maximum penalty:
(a) in
the case of a natural person—$2 000;
(b) in
the case of a body corporate—$10 000.
201—Power to take evidence on oath or affirmation
(1) The dispute
resolution body may take evidence on oath or affirmation and for that purpose
the dispute resolution body may administer an oath or affirmation.
(2) The dispute
resolution body may summon a person to appear before the dispute resolution
body to—
(a) give
evidence; or
(b)
produce such documents (if any) as are referred to in the summons; or
(c) give
evidence and produce such documents (if any) as are referred to in the
summons.
(3) The powers in this
section may be exercised only for the purposes of hearing and determining an
access dispute.
202—Failing to attend as a witness
A person who is served, as prescribed by the Regulations, with a summons to
appear as a witness before the dispute resolution body must not, without
reasonable excuse—
(a) fail
to attend as required by the summons; or
(b) fail
to appear and report himself or herself from day to day unless excused, or
released from further attendance, by the dispute resolution body.
Maximum penalty: $2 000.
203—Failing to answer questions etc
(1) A person appearing
as a witness before the dispute resolution body must not, without reasonable
excuse—
(a)
refuse or fail to be sworn or to make an affirmation; or
(b)
refuse or fail to answer a question that the person is required to answer by
the dispute resolution body; or
(c)
refuse or fail to produce a document that he or she is required to produce by
a summons under this Chapter served on him or her as prescribed by the
Regulations.
Maximum penalty: $2 000.
(2) It is a reasonable
excuse for the purposes of subsection (1) for a natural person to refuse
or fail to answer a question or produce a document on the ground that the
answer or the production of the document might—
(a) tend
to incriminate the person; or
(b)
expose the person to a criminal penalty.
(3)
Subsection (2) does not limit what is a reasonable excuse for the
purposes of subsection (1).
204—Intimidation etc
A person must not—
(a)
threaten, intimidate or coerce another person; or
(b)
cause or procure damage, loss or disadvantage to another person,
because that other person—
(c)
proposes to produce, or has produced, documents to the dispute resolution
body; or
(d)
proposes to appear, or has appeared, as a witness before the dispute
resolution body.
Maximum penalty: $2 000.
205—Party may request dispute resolution body to treat material as
confidential
(1) A party in a
dispute hearing may—
(a)
inform the dispute resolution body that, in the party's opinion, a specified
part of a document contains confidential information; and
(b)
request the dispute resolution body not to give a copy of that part to another
party.
(2) On receiving a
request, the dispute resolution body must—
(a)
inform the other party or parties that the request has been made and of the
general nature of the matters to which the relevant part of the document
relates; and
(b) ask
the other party or parties whether there is any objection to the dispute
resolution body complying with the request.
(3) If there is an
objection to the dispute resolution body complying with the request, the party
objecting may inform the dispute resolution body of the objection and of the
reasons for it.
(4) After
considering—
(a) a
request; and
(b) any
objection; and
(c) any
further submissions that any party has made in relation to the request,
the dispute resolution body may decide—
(d) not
to give the other party or parties a copy of so much of the document as
contains confidential information that the dispute resolution body thinks
should not be given; or
(e) to
give the other party or another specified party a copy of the whole, or part,
of the part of the document that contains confidential information subject to
a condition that the party give an undertaking not to disclose the information
to another person except to the extent specified by the dispute resolution
body and subject to such other conditions as the dispute resolution body
determines.
206—Costs
(1) Each party is to
bear its own costs in a dispute hearing except to the extent that an order
under this section specifies otherwise.
(2) At any time, the
dispute resolution body may order that a party pay all or a specified part of
the costs of another party in a dispute hearing.
(3) The dispute
resolution body may make an order under subsection (2) only if satisfied
that it is fair to do so, having regard to—
(a)
whether a party has conducted the dispute hearing in a way that unnecessarily
disadvantaged another party by conduct such as—
(i)
failing to comply with an order or direction of the
dispute resolution body without reasonable excuse;
(ii)
failing to comply with this Law, the Regulations or the
Rules;
(iii)
asking for an adjournment as a result of
subparagraph (i) or (ii);
(iv)
causing an adjournment;
(v)
attempting to deceive another party or the dispute
resolution body;
(vi)
vexatiously conducting an access dispute;
(b)
whether a party has been responsible for prolonging unreasonably the time
taken to complete the dispute hearing;
(c) the
relative strengths of the claims made by each of the parties, including
whether a party has made a claim that has no tenable basis in fact or law;
(d) the
nature and complexity of the access dispute;
(e) any
other matter the dispute resolution body considers relevant.
(4) A party to whom an
order made under subsection (2) is directed must comply with the order.
(5) If the dispute
resolution body considers that the representative of a party, rather than the
party, is responsible for conduct described in subsection (3)(a) or (b),
the dispute resolution body may order that the representative in his or her
own capacity compensate another party for any costs incurred unnecessarily.
(6) Before making an
order under subsection (5), the dispute resolution body must give the
representative a reasonable opportunity to be heard.
(7) A representative
of a party to whom an order made under subsection (5) is directed must
comply with the order.
(8) If the dispute
resolution body makes an order for costs before the end of an access dispute,
the dispute resolution body may require that the order be complied with before
it continues with the proceeding.
(9) If the dispute
resolution body makes an order for costs, the dispute resolution body may fix
the amount of costs itself.
(10) This section
applies to costs incurred by the parties in a dispute hearing even if the
notification of the access dispute to which the dispute hearing relates is
withdrawn.
207—Outstanding costs are a debt due to party awarded the costs
Costs that are payable under section 206(4) or (7)—
(a) are
a debt due to the party to whom the dispute resolution body has ordered that
they be paid; and
(b) may
be recovered by that party in a court of competent jurisdiction.
Part 7—Joint access dispute hearings
208—Definition
In this Part—
nominated disputes has the meaning given by section 209(2).
209—Joint dispute hearing
(1) This section
applies if—
(a) the
dispute resolution body is conducting 2 or more dispute hearings at a
particular time; and
(b) 1 or
more matters are common to the access disputes in relation to which the
dispute hearings are being conducted.
(2) The dispute
resolution body may, by notice in writing, decide that it will hold a joint
dispute hearing in respect of such of those access disputes (the nominated
disputes ) as are specified in the notice.
(3) The dispute
resolution body may do so only if it considers this would be likely to result
in the nominated disputes being resolved in a more efficient and timely
manner.
210—Consulting the parties
(1) Before making a
decision under section 209(2), the dispute resolution body must give each
party to each of the nominated disputes a notice in writing—
(a)
specifying what the dispute resolution body is proposing to do; and
(b)
inviting the party to make a written submission on the proposal to the dispute
resolution body within 10 business days after the notice is given.
(2) The dispute
resolution body must have regard to any submission so made in deciding whether
to do so. The dispute resolution body may have regard to any other matter it
considers relevant.
211—Constitution and procedure of dispute resolution body for joint
dispute hearings
Chapter 6 Part 6 applies to the joint dispute hearing in a corresponding way
to the way in which it applies to a particular dispute hearing.
212—Record of proceedings etc
(1) The dispute
resolution body as constituted for the purposes of the joint dispute hearing
may have regard to any record of the proceedings of the dispute of any of the
nominated disputes.
(2) The dispute
resolution body as constituted for the purposes of the dispute hearing of each
of the nominated disputes may, for the purposes of making an access
determination in relation to the access dispute to which that hearing
relates—
(a) have
regard to any record of the proceedings of the joint dispute hearing; and
(b)
adopt any findings of fact made by the dispute resolution body as constituted
for the purposes of the joint dispute hearing.
Part 8—Miscellaneous matters
213—Correction of access determinations for clerical mistakes etc
If an access determination contains—
(a) a
clerical mistake; or
(b) an
error arising from an accidental slip or omission; or
(c) a
material miscalculation of figures or a material mistake in the description of
any person, thing or matter referred to in the determination; or
(d) a
defect in form,
the dispute resolution body may correct the access determination.
214—Reservation of capacity during an access dispute
A service provider who is in an access dispute with a user must not, without
the consent of the user, alter the rights that the user has to use the
capacity of the access dispute pipeline during the period of the dispute.
215—Subsequent service providers bound by access determinations
(1) An access
determination applies to every subsequent service provider as if that
subsequent service provider were a party to the access dispute in respect of
which the access determination was made.
(2) In this
section—
subsequent service provider means a service provider (other than the service
provider to whom the access determination applies) who provides pipeline
services—
(a) the
subject of the access dispute; and
(b) in
respect of which the access determination was made.
216—Regulations about the costs to be paid by parties to access dispute
The Regulations may provide for the dispute resolution body to—
(a)
charge the parties to an access dispute for its costs in the access dispute;
and
(b)
apportion those costs between the parties.
Chapter 7—The Natural Gas Services 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 Natural Gas Services Bulletin
Board.
218—AEMO’s obligation to maintain Bulletin Board
(1) AEMO must maintain
the Natural Gas Services Bulletin Board.
(2) The Natural Gas
Services Bulletin Board—
(a) must
be maintained as a website; and
(b) must
contain information of the kind specified in the Rules in relation to natural
gas services.
(3) AEMO may replace
the website with another website containing information of the kind specified
in the Rules in relation to natural gas services.
219—AEMO's other functions as operator of Natural Gas Services Bulletin
Board
AEMO also has, in its capacity as operator of the Natural Gas Services
Bulletin Board, the following functions:
(a) to
collect and collate Bulletin Board information;
(b) to
collect and collate other information in relation to natural gas services for
inclusion on the Natural Gas Services Bulletin Board;
(c) to
derive from information of the type mentioned in paragraphs (a) and (b)
information for inclusion on the Natural Gas Services Bulletin Board;
(d) to
publish information on the Natural Gas Services Bulletin Board of the kinds
that may or must be included on the Natural Gas Services Bulletin Board under
the Rules;
(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
Natural Gas Services 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
Natural Gas Services Bulletin Board; or
(b)
Bulletin Board information.
(2) The fee must not
be such as to amount to taxation.
Part 2—Bulletin Board information
223—Obligation to give information to AEMO
(1) A person of the
following kind who has possession or control of information in relation to
natural gas services must give AEMO the information if the person is required
to do so under the Rules:
(a) a
service provider;
(c) a
user;
(d) a
non scheme pipeline user;
(e) a
producer;
(f) a
storage provider;
(g)
another person who is prescribed by the Regulations for the purposes of this
paragraph.
(2) The information
must be given to 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) AEMO must make
available for the operation of the Bulletin Board information about natural
gas services that it acquires in its capacity as operator or administrator of
a regulated gas market.
224—Person cannot rely on duty of confidence to avoid compliance with
obligation
A person must not refuse to comply with the requirement in section 223(1)
on the ground of any duty of confidence.
225—Giving AEMO false and misleading information
A person must not give Bulletin Board information to AEMO that the person
knows is false or misleading in a material particular.
226—Immunity of persons giving information to AEMO
(1) A person who gives
Bulletin Board 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;
(c)
prescribe the manner in which a maximum amount is to be divided amongst
claimants.
(4) A person mentioned
in subsection (1) may enter into an agreement with another person varying
or excluding the operation of a provision of this section and, to the extent
of that agreement, that provision does not apply.
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 Natural Gas
Services 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 Natural Gas Services 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
(c) may
confer rights or impose obligations; 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.
(2) However, if there
is an inconsistency between an applicable access arrangement and the BB
Procedures, a person is, to the extent of the inconsistency, not required to
comply with the BB 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 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
(c) a
provision of the Rules (including a provision that is a civil penalty
provision or a 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 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 is in breach of 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 to be in breach of 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;
(e) an
order of a kind prescribed by the Regulations.
(3) If a person has
engaged, is engaging or is proposing to engage in any conduct in breach of a
provision of this Law, the Regulations, 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 is in breach of a conduct
provision
(1) The Court may make
an order, on application by a person other than the AER, declaring that
another person is in breach of a conduct provision.
(2) If the order
declares a person to be in breach of a conduct provision, the order may
include 1 or more of the following:
(a) an
order that the person in breach cease, within a specified period, the act,
activity or practice constituting the breach;
(b) an
order that the person in breach take such action, or adopt such practice, as
the Court requires for remedying the breach or preventing a recurrence of the
breach;
(c) an
order that the person in breach implement a specified program for compliance
with this Law, the Regulations and the Rules;
(d) an
order of a kind prescribed by the Regulations.
(3) If a person has
engaged, is engaging or is proposing to engage in any conduct in breach of a
conduct provision, the Court may, on application by another person (other than
the AER), grant an injunction—
(a)
restraining the first mentioned person from engaging in the conduct; and
(b) if,
in the Court's opinion, it is desirable to do so—requiring the first
mentioned person to do something.
(4) The power of the
Court under subsection (3) to grant an injunction restraining a person
from engaging in conduct of a particular kind may be exercised—
(a) if
the Court is satisfied that the person has engaged in conduct of that
kind—whether or not it appears to the Court that the person intends to
engage again, or to continue to engage, in conduct of that kind; or
(b) if
it appears to the Court that, if an injunction is not granted, it is likely
that the person will engage in conduct of that kind—whether or not the
person has previously engaged in conduct of that kind and whether or not there
is an imminent danger of substantial damage to any person if the person in
conduct of that kind.
233—Actions for damages by persons for breach of conduct provision
A person other than the AER who suffers loss or damage by conduct of another
person that was done in breach of a conduct provision may recover the amount
of the loss or damage by action against that other person in a court of
competent jurisdiction.
Part 3—Matters relating to breaches of this Law, the Regulations or the
Rules
234—Matters for which there must be regard in determining amount of
civil penalty
Every civil penalty ordered to be paid by a person declared to be in breach of
a provision of this Law, the Regulations or the Rules must be determined
having regard to all relevant matters, including—
(a) the
nature and extent of the breach; and
(b) the
nature and extent of any loss or damage suffered as a result of the breach;
and
(c) the
circumstances in which the breach took place; and
(d)
whether the person has engaged in any similar conduct and been found to be in
breach of a provision of this Law, the Regulations or the Rules in respect of
that conduct; and
(e)
whether the service provider had in place a compliance program approved by the
AER or required under the Rules, and if so, whether the service provider has
been complying with that program.
235—Breach of a civil penalty provision is not an offence
A breach of a civil penalty provision is not an offence.
236—Breaches of civil penalty provisions involving continuing failure
For the purpose of determining the civil penalty for a breach of a civil
penalty provision, if the breach consists of a failure to do something that is
required to be done, the breach is to be regarded as continuing until the act
is done despite the fact that any period within which, or time before which,
the act is required to be done has expired or passed.
237—Conduct in breach of more than 1 civil penalty provision
(1) If the conduct of
a person constitutes a breach of 2 or more civil penalty provisions,
proceedings may be instituted under this Law against the person in relation to
the breach of any 1 or more of those provisions.
(2) However, the
person is not liable to more than 1 civil penalty under this Law in respect of
the same conduct.
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
(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
(a) a
decision or determination of the AEMC under this Law, the Regulations or the
Rules; or
(b) a
failure by the AEMC to make a decision or determination under this Law, the
Regulations or the Rules; or
(c)
conduct engaged in, or proposed to be engaged in, by the AEMC for the purpose
of making a decision or determination under this Law, the Regulations or the
Rules,
may apply to the Court for judicial review of the decision or determination,
failure or conduct or proposed conduct.
Note—
The Commonwealth Minister, NCC and AER are subject to judicial review under
the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth.
(2) Unless the Court
otherwise orders, the making of an application to the Court under
subsection (1) does not affect the operation of the decision or
determination referred to in that subsection or prevent the taking of action
to implement the decision or determination.
243—Applications for judicial review of AEMO’s decisions
(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—
affected or interested person or body means—
(a) a
service provider to whom a reviewable regulatory decision applies;
(b) a
user, prospective user or end user whose commercial interests are materially
affected by a reviewable regulatory decision;
(c) a
user or consumer association;
(d) a
person whose interests are affected by a reviewable regulatory decision that
is—
(i)
a coverage determination; or
(ii)
a 15-year no-coverage determination; or
(iii)
a coverage revocation determination;
applicant means—
(a) an
affected or interested person or body who has been granted leave to apply for
review by the Tribunal under Division 2; or
(b) a
person who makes an application under section 263;
average annual regulated revenue means the annual average of regulated revenue
calculated for the regulatory period of an applicable access arrangement;
coverage related light regulation decision means either of the following
reviewable regulatory decisions:
(a) a
decision of the NCC under section 110(1);
(b) a
decision of the NCC under section 119(3);
end user includes a person who acquires, or proposes to acquire, natural gas
for the purpose of on-selling that gas to a person who intends to consume that
gas;
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.
intervener means a person or body referred to in section 253, 254 or 255
who has intervened in a review under Division 2 with the leave of the Tribunal
or otherwise;
NCC recommendation means—
(a) a
coverage recommendation; or
(b) a
coverage revocation recommendation; or
(c) a
no-coverage recommendation; or
(d) a
price regulation exemption recommendation;
original decision maker means a relevant Minister, the Commonwealth Minister,
the AER or the NCC;
regulated revenue means the total revenue earned or to be earned by a covered
pipeline service provider—
(a)
under; and
(b)
during the regulatory period of,
an applicable access arrangement through the provision of reference services
to which that arrangement applies;
regulatory period means the period specified in an applicable access
arrangement to be the regulatory period;
review under this Part means a review under Division 2 or Division 3;
reviewable regulatory decision means—
(a) a
Ministerial coverage decision; or
(b) a
light regulation determination or a decision of the NCC under Chapter 3 Part 2
not to make a light regulation determination; or
(c)
decision of the NCC under Chapter 3 Part 2 to revoke or not revoke a light
regulation determination; or
(d) an
applicable access arrangement decision (other than a full access arrangement
decision that does not approve a full access arrangement); or
(e) an
AER ring fencing determination; or
(f) a
decision of the AER under section 146 to give an exemption; or
(g) an
associate contract decision; or
(h) a
decision of an original decision maker that is prescribed by the Regulations
to be a reviewable regulatory decision,
but does not include a decision of the AER made under Chapter 10 Part 2;
small/medium user or consumer intervener means a user or consumer intervener
that—
(a) the
members of which are only small to medium users or end users; or
(b) if
it does not have any such members, has, as an object or purpose, the object or
purpose of representing and promoting the interests of small to medium users
or end users;
small to medium user or end user means a user or end user whose annual
consumption of natural gas does not exceed a level (expressed in terajoules)
fixed by Regulation for the purposes of this definition;
user or consumer association means an association or body (whether
incorporated or unincorporated)—
(a) the
members of which include more than 1 user, prospective user or end user; and
(b) that
represents and promotes the interests of those members in relation to the
provision of natural gas services;
user or consumer interest group means an association or body (whether
incorporated or unincorporated)—
(a) that
has, as an object or purpose, the object or purpose of representing and
promoting the interests of users or prospective users or end users of natural
gas services; but
(b) the
members of which need not include a user, prospective user or end user;
user or consumer intervener means—
(a) a
user or consumer association; or
(b) a
user or consumer interest group,
that has made a submission or comment in relation to the making of a
reviewable regulatory decision following an invitation to do so under this Law
or the Rules.
Division 2—Merits review for reviewable regulatory decisions
245—Applications for review
(1) Subject to this
section, an affected or interested person or body, with the leave of the
Tribunal, may apply to the Tribunal for a review of a reviewable regulatory
decision.
(2) An application
must—
(a) be
made in the form and manner determined by the Tribunal; and
(b)
specify the grounds for review being relied on.
246—Grounds for review
(1) An application
under section 245(1) may be made only on 1 or more of the following
grounds:
(a) the
original decision maker made an error of fact in the decision maker's findings
of facts, and that error of fact was material to the making of the decision;
(b) the
original decision maker made more than 1 error of fact in the decision maker's
findings of facts, and those errors of fact, in combination, were material to
the making of the decision;
(c) the
exercise of the original decision maker's discretion was incorrect, having
regard to all the circumstances;
(d) the
original decision maker's decision was unreasonable, having regard to all the
circumstances.
(2) It is for the
applicant to establish a ground listed in subsection (1).
247—By when an application must be made
(1) An application
under section 245(1) in respect of a reviewable regulatory decision
(other than a coverage related light regulation decision) must be made no
later than 15 business days after the reviewable regulatory decision is
published in accordance with this Law or the Rules.
(2) An application
under section 245(1) in respect of a coverage related light regulation
decision must be made—
(a) in
the case of a decision of the NCC under section 110(1), no later than 15
business days after the making of the coverage determination relating to the
coverage recommendation to which the decision under section 110(1) is
attached;
(b) in
the case of a decision of the NCC under section 119(3), no later than 15
business days after the making of the coverage revocation determination
relating to the coverage revocation recommendation to which the decision under
section 119(3) is attached.
248—Tribunal must not grant leave unless serious issue to be heard and
determined
Subject to this Division, the Tribunal must not grant leave to apply under
section 245(1) unless it appears to the Tribunal that there is a serious
issue to be heard and determined as to whether a ground for review set out in
section 246(1) exists.
249—Leave must be refused if application is about an error relating to
revenue amounts below specified threshold
(1) This section
applies if—
(a)
leave to apply under section 245(1) is about an error in a reviewable
regulatory decision that is a full access arrangement decision; and
(b) the
ground for review relied on by the applicant relates to the amount of revenue
that may be earned by a covered pipeline service provider that is specified in
or derived from that decision.
(2) Despite
section 248, the Tribunal must not grant leave to apply under
section 245(1) even if there is a serious issue to be heard and
determined as to whether a ground for review set out in section 246(1)
exists unless the amount that is specified in or derived from the decision
exceeds the lesser of $5 000 000 or 2% of the average annual
regulated revenue of the covered pipeline service provider.
250—Tribunal must refuse to grant leave if submission not made or is
made late
The Tribunal must not grant leave to apply under section 245(1) to a
person or body referred to in paragraph (b), (c) or (d) of the definition
of affected or interested person or body in section 244 if that person or
body—
(a) did
not make a submission or comment in relation to the making of the reviewable
regulatory decision under review following an invitation to do so under this
Law or the Rules; or
(b) did
make a submission or comment in relation to the making of the reviewable
regulatory decision under review following an invitation to do so under this
Law or the Rules but that submission—
(i)
was not made within the time required under this Law or
the Rules following that invitation; and
(ii)
was not taken into account in the making of the decision.
251—Tribunal may refuse to grant leave to service provider in certain
cases
(1) This section
applies—
(a) in
relation to an application under section 245(1) by a service provider for
a review of a reviewable regulatory decision that applies to the service
provider; and
(b) if
the Tribunal is satisfied of the matters set out in section 248 or 249 to
grant leave to apply under section 245(1).
(2) Despite being
satisfied of the matters set out in section 248 or 249 to grant leave to
apply under section 245(1), the Tribunal may refuse to grant leave to the
service provider if the Tribunal is satisfied the service provider—
(a)
without reasonable excuse—
(i)
failed to comply with a request (including a request for
relevant information), or a direction made under this Law or the Rules for the
purpose of making the decision; or
(ii)
conducted itself in a manner that resulted in the making
of the decision being delayed; or
(b)
misled, or attempted to mislead—
(i)
in all cases, the original decision maker on a matter
relevant to the original decision maker's decision;
(ii)
in the case of a reviewable regulatory decision that is a
Ministerial coverage decision, the NCC on a matter relevant to the making of
an NCC recommendation relating to the decision.
252—Effect of application on operation of reviewable regulatory
decisions
An application under section 245(1)—
(a) does
not the stay the operation of the following reviewable regulatory decisions:
(i)
an applicable access arrangement decision approving or
making an applicable access arrangement; or
(ii)
an associate contract decision;
(b)
stays the operation of any other reviewable regulatory decision on the
granting of leave to apply by the Tribunal, unless the Tribunal otherwise
orders.
253—Intervention by others in a review without leave
Only the following persons may intervene in a review under this Division
without leave of the Tribunal:
(a) a
service provider to whom the reviewable regulatory decision being reviewed
applies;
(b) a
Minister of a participating jurisdiction.
254—Leave for reviewable regulatory decision process participants
(1) The Tribunal must
grant leave to a person or body to intervene in a review under this Division
if that person or body is a reviewable regulatory decision process
participant.
(2) In this
section—
reviewable regulatory decision process participant means a person or body
(other than a user or consumer intervener) with a sufficient interest in the
reviewable regulatory decision being reviewed who—
(a) has
made a submission or comment in relation to the making of that decision within
the time required under this Law or the Rules following an invitation to do so
under this Law or the Rules; or
(b) has
made a submission or comment in relation to the making of that decision
outside the time required under this Law or the Rules following an invitation
to do so under this Law or the Rules but which was taken into account in the
making of that decision.
255—Leave for user or consumer intervener
(1) A user or consumer
intervener may apply to the Tribunal for leave to intervene in a review of a
reviewable regulatory decision under this Division.
(2) The Tribunal may
grant leave to a user or consumer intervener to intervene in a review under
this Division.
(3) Without limiting
subsection (2), the Tribunal may grant leave to a user or consumer
intervener to intervene in a review under this Division if the Tribunal is
satisfied—
(a) the
user or consumer intervener, in its application for leave to intervene, raises
a matter that will not be raised by the original decision maker or the
applicant; or
(b) the
information or material the user or consumer intervener wishes to present, or
the submissions the user or consumer intervener wishes to make, in the review
are likely to be better presented or made by the user or consumer intervener
rather than another party to the review; or
(c) the
interests of the user or consumer intervener or its members are affected by
the decision being reviewed.
(4) For the purposes
of subsection (3)(c)—
(a) the
interests of a user or consumer intervener are to be taken to be affected if
the reviewable regulatory decision being reviewed relates to an object or
purpose of the user or consumer intervener;
(b) the
interests of a user or consumer intervener are not to be taken to not be
affected only because those interests do not coincide with the interests of
the applicant.
256—Interveners may raise new grounds for review
(1) An intervener may
raise in a review under this Division any of the grounds specified in
section 246 even if the ground that is raised by the intervener is not
raised by the applicant.
(2) To avoid doubt, it
is for the intervener to establish the ground referred to in
subsection (1).
257—Parties to a review under this Division
The parties to a review under this Division are—
(a) the
applicant; and
(b) the
original decision maker whose decision is the reviewable regulatory decision
being reviewed under this Division; and
(c) an
intervener.
258—Matters that parties to a review may and may not raise in a review
(1) An original
decision maker whose decision is the reviewable regulatory decision being
reviewed under this Division may, in the review, raise—
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