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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Gas Industry (Further Amendment) Act 1997
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
PART 2--GAS INDUSTRY ACT 1994 3
3. Principal Act 3
4. Definitions and interpretation 3
5. New sections 5A and 5B inserted 9
5A. Declaration of gas companies 10
5B. Nomination of market participants 10
6. Amendment of section 6 10
7. New sections 6A, 6B and 6C inserted 10
6A. Application of Act to certain distribution, retail and
transmission companies 11
6B. Non-franchise customer 11
6C. Supply point 14
8. New section 6D inserted 14
6D. Conferral of functions on ACCC 15
9. New sections 8A and 8B inserted 15
8A. Application of Office of the Regulator-General
Act 1994 15
8B. Objectives of ORG 15
10. Statutory gas companies 16
11. New Division 2A inserted in Part 2 16
Division 2A--Victorian Energy Networks Corporation 16
16A. Establishment 16
16B. VENCorp not to represent the Crown 17
16C. Functions and powers relating to gas industry 17
16D. General powers 18
16E. Board of Directors 19
16F. Directors 19
16G. Appointment of directors 19
16H. VENCorp may give directions 19
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Clause Page
16I. Protection from liability 22
16J. Immunity from suit 23
16K. Continuing offences 23
16L. Review of this Part 23
12. Directors of VENCorp not to have interest in electricity licensee 24
13. Heading to Division 3 24
14. New section 17 substituted 24
17. Schedule 1 24
15. New Part 3 substituted 25
PART 3--TRANSMISSION AND DISTRIBUTION OF GAS 25
32. Gas retailer not liable for failure to supply gas 25
33. Exemption from liability to transmit or convey gas 26
16. Amendment of Part 4 26
17. New Parts 4A and 4B inserted 26
PART 4A--REGULATION OF GAS INDUSTRY 27
Division 1--Regulation of tariffs and charges 27
48A. Tariffs and charges Orders 27
Division 2--Licensing of gas distribution companies and gas
retailers 28
48B. Offence to distribute or retail gas without licence 28
48C. Exemptions 29
48D. Application for licence 30
48E. Determination of application 30
48F. Provisions relating to licences 31
48G. Conditions in licence 34
48H. Variation or revocation of licence 36
48I. Gazettal requirement 37
48J. Appointment of administrator 37
48K. Transfer of licence 38
48L. Transitional provisions 39
48M. Obligations of gas retailer 40
Division 3--Market and System Operation Rules 41
48N. MSO Rules 41
48O. Proceedings 42
48P. Criminal proceedings do not lie 43
48Q. Civil penalty 44
48R. Injunctions 45
48S. Actions for damages for contravention of conduct
provision 47
48T. Declaratory relief 48
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Clause Page
PART 4B--THIRD PARTY ACCESS 49
Division 1--The Access Code 49
48U. Establishing the Access Code 49
Division 2--Arbitration of access disputes 53
48V. Definitions and application 53
48W. Where ACCC conducts arbitration 54
48X. Person to conduct arbitration 55
48Y. Hearing to be in private 55
48Z. Right to representation 56
48ZA. Procedure 56
48ZB. Particular powers of arbitrator 57
48ZC. Contempt 57
48ZD. Disclosure of information 57
48ZE. Power to take evidence on oath or affirmation 58
48ZF. Failing to attend as a witness 58
48ZG. Failing to answer questions etc. 58
48ZH. Intimidation etc. 59
48ZI. Party may request arbitrator to treat material as
confidential 60
48ZJ. Parties to pay costs of an arbitration 60
Division 3--Proceedings for contravention of Part 61
48ZK. Proceedings 61
48ZL. Criminal proceedings do not lie 61
48ZM. Civil penalty 62
48ZN. Injunctions 63
48ZO. Actions for damages for contravention of conduct
provision 66
48ZP. Declaratory relief 66
Division 4--Administrative Appeals 68
48ZQ. Application for review 68
48ZR. Merits review of access arrangements 70
Division 5--General 72
48ZS. Preventing or hindering access 72
48ZT. Power to obtain information and documents 74
48ZU. Restriction on disclosure of confidential information 76
48ZV. Appeal against disclosure notice 79
18. New section 50 substituted 80
50. Agreement for operation of pipelines 80
19. Amendment of sections 51 and 51A 81
20. Rateability of property of public gas companies 82
21. Amendment of section 53 82
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Clause Page
22. Amendment of section 54 83
23. New section 57 substituted 83
57. Obstruction of gas company 83
24. Amendment of Principal Act 83
25. New section 60A inserted 85
60A. Making of easements in sub-divisions 85
26. Amendment of section 61 85
27. Amendment of Part 6B 85
28. Amendment of Part 7 89
29. New sections 83A and 83B inserted 92
83A. Further interim arrangements-- 92
83B. Agreement about certain easements 93
30. Amendment of Part 8 94
31. New Part 8A inserted 94
PART 8A--TRANSFER OF STAFF OF GASCOR OR GTC 94
87G. Definitions 94
87H. Relevant date 95
87I. List of staff 95
87J. Transfer of staff 96
87K. Future terms and conditions of transferred employees 97
87L. Superannuation 97
32. New sections 88A, 88B and 88C inserted 98
88A. Directions to public gas companies 98
88B. Payments in respect of financial obligations 98
88C. Government departments and local authorities 99
33. Amendment of the Principal Act 100
34. Amendment of section 100 100
35. Amendment of section 101 101
36. New section 101A inserted 101
101A. Exemption from Freedom of Information Act 1982 101
37. Regulations 101
38. New sections 104A and 104B inserted 102
104A. Annual reports of GASCOR transferees and GASCOR 102
104B. Annual reports of GTC transferees and GTC 104
39. New section 104C inserted 105
104C. Repeal of Public Authorities (Contributions)
Act 1966 105
40. New Parts 13A and 13B inserted 106
PART 13A--TRANSFER OF CERTAIN PROPERTY AND
STAFF OF NOMINATED PUBLIC GAS COMPANIES 106
Division 1--Definitions and applications 106
115A. Definitions 106
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Clause Page
115B. Nomination of transferor company 108
Division 2--Allocation of property 108
115C. PGC to prepare allocation statement 108
115D. Certificate of chief executive officer 109
Division 3--Transfer of property 110
115E. Property transferred 110
115F. Allocation of property etc. subject to encumbrances 111
115G. Substitution of party to agreement 111
115H. PGC instruments 112
115I. Proceedings 112
115J. Interests in land 112
115K. Amendment of Register 113
115L. Evidence 113
115M. Validity of things done under this Part 114
Division 4--Staff 115
115N. List of PGC staff 115
115O. Transfer of PGC staff 116
115P. Future terms and conditions of transferred employees 117
Division 5--Permits and licences under Pipelines Act 1967 117
115Q. Pipelines 117
PART 13B--PROVISIONS RELATING TO
PRIVATISATION 119
115R. Treasurer may be party to agreement for sale 120
115S. Freedom of Information Act 1982 120
41. New Schedule 1A inserted 120
SCHEDULE 1A 120
PART 3--AMENDMENT OF OTHER ACTS 122
42. Borrowing and Investment Powers Act 1987 122
43. Country Fire Authority Act 1958 122
44. Electricity Industry (Further Miscellaneous Amendment) Act
1997 122
45. Essential Services Act 1958 123
46. Historic Buildings Act 1981 123
47. Melbourne City Link Act 1995 123
48. Pipelines Act 1967 123
49. Public Authorities (Dividends) Act 1983 124
50. State Electricity Commission Act 1958 124
51. State Owned Enterprises Act 1992 124
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Clause Page
52. Treasury Corporation of Victoria Act 1992 124
NOTES 125
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PARLIAMENT OF VICTORIA
A BILL
to amend the Gas Industry Act 1994 and certain other Acts and for
other purposes.
Gas Industry (Further Amendment) Act
1997
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is to make further
provision for the restructure and reform of the gas
5 industry.
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s. 2
Act No.
2. Commencement
(1) This Part comes into operation on the day on
which this Act receives the Royal Assent.
(2) Section 30 is deemed to have come into operation
5 on 1 July 1997.
(3) Section 44 is deemed to have come into operation
on 21 October 1997.
(4) Section 12 comes into operation on a day to be
proclaimed.
10 (5) Subject to sub-section (6), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(6) If a provision referred to in sub-section (5) does
not come into operation before 1 January 1999, it
15 comes into operation on that day.
_______________
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Gas Industry (Further Amendment) Act 1997
s. 3
Act No.
PART 2--GAS INDUSTRY ACT 1994
No. 112/1994.
3. Principal Act
Reprint No. 2
as at 22
In this Act, the Gas Industry Act 1994 is called
August 1997.
the Principal Act.
5 4. Definitions and interpretation
(1) In section 3 of the Principal Act insert--
"ACCC" means the Australian Competition and
Consumer Commission established by
section 6A of the Trade Practices Act 1974
10 of the Commonwealth and includes a
member of the Commission or a Division of
the Commission performing functions of the
Commission;
"Access Code" means the Third Party Access
15 Code established under Part 4B;
"ancillary supply point" means ancillary supply
point as defined in section 6C(3);
"civil penalty provision" means--
(a) in Part 4A, a provision of the MSO
20 Rules that is prescribed as a civil
penalty provision for the purposes of
Division 3 of Part 4A;
(b) in Part 4B--
(i) section 48ZS;or
25 (ii) a provision of the Access Code
that is prescribed as a civil penalty
provision for the purposes of Part
4B;
"conduct provision" means--
30 (a) in Part 4A, a provision of the MSO
Rules that, under the MSO Rules, is a
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s. 4
Act No.
conduct provision for the purposes of
Division 3 of Part 4A;
(b) in Part 4B--
(i) section 48ZS; or
5 (ii) a provision of the Access Code
that, under the Access Code, is a
conduct provision for the purposes
of Part 4B;
"gas distribution company" means a person
10 declared under section 5A to be a gas
distribution company for the purposes of this
Act who--
(a) holds a licence to provide services by
means of a distribution pipeline; or
15 (b) is exempt from a requirement to hold
such a licence because of an Order under
section 48C;
"gas distribution system" means--
(a) the system of distribution pipelines
20 operated by GASCOR immediately
before the commencement of section 11
of the Gas Industry (Further
Amendment) Act 1997, other than any
part of that system to which an Order
25 under section 5(4) applies; and
(b) any distribution pipeline or system of
distribution pipelines that, under
section 5(2), is an approved connection;
"gas producer" means a person who carries on a
30 business of producing natural gas;
"gas retailer" means a person declared under
section 5A to be a gas retailer for the
purposes of this Act who--
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s. 4
Act No.
(a) holds a licence to sell gas; or
(b) is exempt from a requirement to hold
such a licence because of an Order under
section 48C;
5 "gas transmission company" means VENCorp
or any other person who owns, operates or
provides a service by means of a
transmission pipeline, being a person
declared under section 5A to be a gas
10 transmission company for the purposes of
this Act;
"gas transmission system" means--
(a) the system of transmission pipelines
operated by GTC immediately before
15 the commencement of section 11 of the
Gas Industry (Further Amendment)
Act 1997, other than any part of that
system to which an Order under section
5(4) applies; and
20 (b) any transmission pipeline or system of
transmission pipelines that, under
section 5(3), is an approved connection;
"licence" means a licence under section 48E;
"licensee" means the holder of a licence under
25 section 48E;
"market participant" means--
(a) a person who is registered by VENCorp
under the MSO Rules as a participant;
or
30 (b) if Rules have not been made under
section 48N, a person nominated under
section 5B;
"MSO Rules" means the rules made under
section 48N;
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s. 4
Act No.
"natural gas" means a substance which is in a
gaseous state at standard temperature and
pressure and which consists of naturally
occurring hydrocarbons, or a naturally
5 occurring mixture of hydrocarbons and non-
hydrocarbons, the principal constituent of
which is methane;
"non-franchise customer", in relation to a
supply of gas from a supply point, means
10 non-franchise customer in relation to that
supply point within the meaning of section
6B;
"ORG" means the Office of the Regulator-
General under the Office of the Regulator-
15 General Act 1994;
"public gas company" means a gas company--
(a) that is a statutory authority or a
company all the shares in which are
held by or on behalf of the State or a
20 statutory authority; or
(b) all the shares in which are held by a
company all the shares in which are
held by or on behalf of the State or a
statutory authority;
25 "Regulator"--
(a) in relation to a transmission pipeline, or
a matter concerning a transmission
pipeline or a service provider of a
transmission pipeline, means the
30 ACCC;
(b) in relation to a distribution pipeline, or
a matter concerning a distribution
pipeline or a service provider of a
distribution pipeline, means ORG;
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s. 4
Act No.
"regulatory provision" means--
(a) in Part 4A, a provision of the MSO
Rules that, under the MSO Rules, is a
regulatory provision for the purposes of
5 Division 3 of Part 4A;
(b) in Part 4B a provision of the Access
Code that, under the Access Code, is a
regulatory provision for the purposes of
Part 4B;
10 "service provider", in relation to a pipeline or
proposed pipeline, means a person that,
within the meaning of the Access Code, is,
or is to be, the owner or operator of the
whole or any part of the pipeline or proposed
15 pipeline;
"statutory gas company" means GASCOR,
GTC or VENCorp;
"supply point" means supply point within the
meaning of section 6C;
20 "VENCorp" means the Victorian Energy
Networks Corporation established under
Division 2A of Part 2.
(2) In section 3 of the Principal Act--
(a) the definitions of "domestic customer" and
25 "domestic tariff" are repealed;
(b) in the definition of "gas", after "this Act"
insert "or any provision of this Act";
(c) for the definitions of "gas company" and
"gas corporation" substitute--
30 ' "gas company"--
(a) except in Parts 2 and 7, means--
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s. 4
Act No.
(i) GTC, GASCOR, VENCorp, a gas
distribution company, a gas
retailer or a gas transmission
company; or
5 (ii) a company that holds all the
shares in a gas distribution
company, a gas retailer or a gas
transmission company;
(b) in Part 2 means a statutory gas
10 company;
(c) in Part 7 means GTC or GASCOR
or a company all the shares in which
are held by GTC or GASCOR;
"gas corporation" means GTC, GASCOR
15 or GFCV;';
(d) in paragraph (a)(ii) of the definition of
"transmission pipeline", for "515kPa"
substitute "1050kPa";
(e) in the definition of "transmission pipeline",
20 for paragraph (b) substitute--
"(b) a pipeline that is declared under section
5 to be a transmission pipeline--
but does not include a pipeline declared
under section 5 not to be a transmission
25 pipeline;".
(3) In section 4 of the Principal Act, after "this Act"
insert "or any provision of this Act".
(4) At the end of section 5 of the Principal Act
insert--
30 '(2) VENCorp and a gas distribution company
may agree in writing that a distribution
pipeline or system of distribution pipelines
owned or operated, or to be owned or
operated, by that company and connected, or
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s. 5
Act No.
to be connected, to the system referred to in
paragraph (a) of the definition of "gas
distribution system" in section 3 is, or will
be, an approved connection for the purposes
5 of that definition.
(3) VENCorp and another gas transmission
company may agree in writing that a
transmission pipeline or system of
transmission pipelines owned or operated, or
10 to be owned or operated, by that company
and connected, or to be connected, to the
system referred to in paragraph (a) of the
definition of "gas transmission system" in
section 3 is, or will be, an approved
15 connection for the purposes of that
definition.
(4) The Governor in Council, by Order in
Council published in the Government
Gazette--
20 (a) may declare that a part of the system of
distribution pipelines referred to in
paragraph (a) of the definition of "gas
distribution system" in section 3 is
deemed not to be part of that system for
25 the purposes of this Act;
(b) may declare that a part of the system of
transmission pipelines referred to in
paragraph (a) of the definition of "gas
transmission system" in section 3 is
30 deemed not to be part of that system for
the purposes of this Act.'.
5. New sections 5A and 5B inserted
After section 5 of the Principal Act insert--
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Gas Industry (Further Amendment) Act 1997
s. 6
7
Act No.
"5A. Declaration of gas companies
The Governor in Council, by Order
published in the Government Gazette--
(a) may declare a person who owns,
5 operates or provides services by means
of a transmission pipeline to be a gas
transmission company for the purposes
of this Act;
(b) may declare a person who owns,
10 operates or provides services by means
of a distribution pipeline to be a gas
distribution company for the purposes
of this Act;
(c) may declare a person who sells gas to
15 be a gas retailer for the purposes of this
Act.
5B. Nomination of market participants
The Minister, on the recommendation of
VENCorp, may nominate a person as a
20 market participant for the purposes of Part
4A, being a person who is a gas company,
gas producer, gas storage provider or service
provider or any other person who carries out
activities relating to the gas transmission
25 system.".
6. Amendment of section 6
In section 6 of the Principal Act--
(a) for "GTC or GASCOR" (where first
occurring) substitute "a statutory gas
30 company";
(b) for "GTC or GASCOR" (where secondly
occurring) substitute "the statutory gas
company".
7. New sections 6A, 6B and 6C inserted
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Gas Industry (Further Amendment) Act 1997
Act No.
After section 6 of the Principal Act insert--
'6A. Application of Act to certain distribution,
retail and transmission companies
The Governor in Council, by Order
5 published in the Government Gazette, may
declare that a reference in section 32, 33, 92
or 93 or Part 5 or 6 to a gas company does
not include a reference to a specified gas
distribution company, gas retailer or gas
10 transmission company.
6B. Non-franchise customer
(1) For the purposes of this Act, a person is a
non-franchise customer in relation to a
supply of gas from a supply point--
15 (a) if the gas is supplied from a supply
point installed on or after 1 December
1997, other than a supply point
installed within one kilometre of a
distribution pipeline that was in
20 operation on 1 July 1997;
(b) if the gas is supplied from a supply
point on or after 1 September 1998 and
before 1 September 1999 and--
(i) the person had purchased not less
25 than 500 000 GJ of gas from that
supply point, or an ancillary
supply point, during the 12
months immediately preceding
1 September 1998 or the
30 commencement of the supply,
whichever is the later; or
(ii) the supply point is new and ORG
is satisfied on reasonable grounds
that the person will purchase not
35 less than 500 000 GJ of gas from
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s. 7
Act No.
that supply point within a period
of 12 months during the 3 years
next following 1 September 1998
or the commencement of the
5 supply, whichever is the later;
(c) if the gas is supplied from a supply
point on or after 1 September 1999 and
before 1 September 2000 and--
(i) the person had purchased not less
10 than 100 000 GJ of gas from that
supply point, or an ancillary
supply point, during the period of
12 months immediately preceding
1 September 1999 or the
15 commencement of the supply,
whichever is the later; or
(ii) the supply point is new and ORG
is satisfied on reasonable grounds
that the person will purchase not
20 less than 100 000 GJ of gas from
that supply point within a period
of 12 months during the 3 years
next following 1 September 1999
or the commencement of the
25 supply, whichever is the later;
(d) if the gas is supplied from a supply
point on or after 1 September 2000 and
before 1 September 2001 and--
(i) the person had purchased not less
30 than 5000 GJ of gas from that
supply point, or an ancillary
supply point, during the period of
12 months immediately preceding
1 September 2000 or the
35 commencement of the supply,
whichever is the later; or
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Act No.
(ii) the supply point is new and ORG
is satisfied on reasonable grounds
that the person will purchase not
less than 5000 GJ of gas from that
5 supply point within a period of
12 months during the 3 years next
following 1 September 2000 or
the commencement of the supply,
whichever is the later;
10 (e) if the gas is supplied from a supply
point on or after 1 September 2001.
(2) A person who, by reason of sub-section (1),
becomes a non-franchise customer in
relation to a supply of gas from a supply
15 point, or an ancillary supply point, continues
to be a non-franchise customer in respect of
the supply of gas from that supply point or
ancillary supply point.
(3) Despite sub-section (1)(a), a customer of a
20 gas retailer who holds a new areas licence to
sell gas in a particular area is not a non-
franchise customer in relation to a supply
point in that area during the term of that
licence, unless sub-section (1)(b), (c), (d) or
25 (e) applies to the customer.
(4) For the purpose of sub-section (1)(a), a
supply point is deemed to be installed within
one kilometre of a distribution pipeline if
ORG certifies in writing that it is so
30 installed.
(5) In this section--
"new areas licence" means a licence to sell
natural gas by retail in an area in which
natural gas was not generally available
35 for purchase by retail before the issue
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s. 7
8
Act No.
of the licence and which is expressed to
be a new areas licence.
6C. Supply point
(1) In this Act, "supply point", in relation to
5 the supply of gas to a customer means--
(a) unless paragraph (b) applies, the point
where the gas leaves the gas company's
system before being supplied to the
customer, whether or not it passes
10 through facilities owned or operated by
another person after that point and
before being so supplied;
(b) in relation to a supply of gas to which
an arrangement referred to in sub-
15 section (2) applies, the points of supply
that ORG agrees are to be treated as a
single supply point.
(2) ORG may agree that, for the purposes of this
section, 2 or more points referred to in
20 paragraph (a) on a customer's premises be
treated as a single supply point if ORG is
satisfied that the supply of gas to those
points before 1 July 1997 was, in accordance
with an arrangement with the customer in
25 force immediately before that date, treated
by GASCOR as a single supply for billing
purposes.
(3) In this Act, "ancillary supply point", in
relation to another supply point, means a
30 point that, under sub-section (2), is to be
treated as a single supply point with the
other supply point.'.
8. New section 6D inserted
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Gas Industry (Further Amendment) Act 1997
Act No.
Before section 7 of the Principal Act insert--
"6D. Conferral of functions on ACCC
(1) The ACCC has the functions and powers
conferred or expressed to be conferred on it
5 under this Act, an Order under section 48A,
the Access Code or the MSO Rules.
(2) In addition to the powers mentioned in sub-
section (1), the ACCC has power to do all
things necessary or convenient to be done in
10 connection with the performance of the
functions and powers referred to in that sub-
section.".
9. New sections 8A and 8B inserted
After section 8 of the Principal Act insert--
15 "8A. Application of Office of the Regulator-
General Act 1994
For the purposes of the Office of the
Regulator-General Act 1994--
(a) Parts 4A and 4B are relevant
20 legislation; and
(b) the gas industry is a regulated industry.
8B. Objectives of ORG
The objectives of ORG under Parts 4A and
4B are--
25 (a) to facilitate and promote open, efficient
and competitive markets for and in
relation to gas and to safeguard against
misuse of monopoly power;
(b) to administer an Access Code providing
30 a right of access to services provided by
means of distribution pipelines on fair
and reasonable terms and conditions;
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s. 10
Act No.
(c) to protect the interests of consumers
with respect to gas prices and the
reliability and quality of gas supply;
(d) to facilitate the maintenance of a
5 financially viable gas supply industry.".
10. Statutory gas companies
In the heading to Part 2 of the Principal Act,
before "GAS" insert "STATUTORY".
11. New Division 2A inserted in Part 2
10 After section 16 of the Principal Act insert--
"Division 2A--Victorian Energy Networks
Corporation
16A. Establishment
(1) There is established a body by the name
15 Victorian Energy Networks Corporation.
(2) VENCorp--
(a) is a body corporate with perpetual
succession;
(b) has an official seal;
20 (c) may sue and be sued;
(d) may acquire, hold and dispose of real
and personal property;
(e) may do and suffer all acts and things
that a body corporate may by law do
25 and suffer.
(3) All courts must take judicial notice of the
seal of VENCorp affixed to a document and,
until the contrary is proved, must presume
that it was duly affixed.
30 (4) The official seal of VENCorp must be kept
in such custody as VENCorp directs and
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Gas Industry (Further Amendment) Act 1997
s. 11
Act No.
must not be used except as authorised by
VENCorp.
16B. VENCorp not to represent the Crown
VENCorp is a public authority but does not
5 represent the Crown.
16C. Functions and powers relating to gas
industry
(1) The functions of VENCorp in relation to the
gas industry are--
10 (a) to specify security standards for the gas
transmission system;
(b) to control the security of the gas
transmission system;
(c) to control the operation of the gas
15 transmission system;
(d) to collect information about the gas
transmission system;
(e) to monitor and review the capacity of
the gas transmission system and the
20 trends for demand for the injection of
gas into, and the withdrawal of gas
from, the system;
(f) to provide information and other
services to facilitate decisions for
25 economically efficient investment and
use of resources in the gas industry;
(g) to co-ordinate the interaction of gas
production, gas storage, transmission
pipelines and gas distribution and
30 supply facilities for the purpose of
ensuring a secure and efficient gas
transmission system;
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(h) to operate and administer a market and
facilitate trading arrangements for the
operation of the gas transmission
system.
5 (2) VENCorp may trade in gas--
(a) for the purpose of discharging its
functions relating to the security or
administration of the gas transmission
system, to the extent it is permitted to
10 do so under the MSO Rules; or
(b) in an emergency.
16D. General powers
(1) Without limiting the generality of the powers
conferred on it under this Act or any other
15 Act, VENCorp--
(a) may form, or participate in the
formation of, or be a member of,
companies;
(b) may form, or participate in the
20 formation of, and may participate in
partnerships, trusts, unincorporated
joint ventures and other arrangements
for the sharing of profits;
(c) may act as trustee;
25 (d) may engage in any business,
undertaking or activity incidental to the
performance of its functions;
(e) may do all things necessary or
convenient to be done for, or in
30 connection with, carrying out its
functions under this Act or any other
Act.
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(2) VENCorp may carry out its functions and
exercise its powers within or outside
Victoria and outside Australia.
16E. Board of Directors
5 (1) There shall be a board of directors of
VENCorp consisting of a chairperson and
not more than 9 other directors appointed in
accordance with this Act.
(2) The board of directors of VENCorp--
10 (a) is responsible for the management of
the affairs of VENCorp; and
(b) may exercise the powers of VENCorp.
16F. Directors
(1) The directors shall be persons with expertise
15 relevant to the functions of VENCorp
nominated by the Minister.
(2) At least 3 of the directors shall be persons--
(a) who are not officers or employees of a
gas company, a gas producer or a gas
20 storage provider; and
(b) none of whom has a material personal
interest within the meaning of section
232A of the Corporations Law in a gas
company.
25 16G. Appointment of directors
(1) The chairperson and other directors of
VENCorp shall be appointed by the
Governor in Council.
(2) The Public Sector Management Act 1992
30 does not apply to a director of VENCorp in
respect of the office of director.
16H. VENCorp may give directions
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(1) VENCorp may give directions in writing as
to a matter referred to in sub-section (2) to a
market participant for the purposes of any
one or more of the following--
5 (a) facilitating the reliability of the supply
of gas;
(b) facilitating the security of the gas
transmission system or gas distribution
system;
10 (c) subject to consistency with the Gas
Safety Act 1997, the interests of public
safety.
(2) The matters as to which a direction may be
given under sub-section (1) are--
15 (a) the operation or use of any equipment
or installation;
(b) the control of the flow of gas;
(c) any other matter necessary to be done,
or not to be done, for the security of the
20 gas transmission system or the gas
distribution system.
(3) A direction under this section that is
inconsistent with--
(a) the Gas Safety Act 1997 or regulations
25 under that Act; or
(b) the Pipelines Act 1967, or with the
conditions of a licence under that Act
held by the person to whom the
direction is given--
30 is void to the extent of the inconsistency.
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(4) A direction given under this section to a
market participant applies to the market
participant and may also be expressed to
apply to a specified class of persons, being a
5 class constituted by or included in one or
both of the following classes of persons--
(a) servants or agents of or persons acting
on behalf of, the market participant;
(b) persons performing work or services,
10 whether directly or indirectly, for the
market participant--
and, if a direction so expressed is given, the
direction is deemed to apply to each person
included in that specified class.
15 (5) If a direction under this section applies to a
market participant and to a person referred to
in sub-section (4) the market participant
must cause a copy of the direction to be
given to that other person.
20 Penalty: 10 penalty units.
(6) A direction under this section may make
provision in relation to a matter by applying,
adopting or incorporating, with or without
modifications, a code of practice or standard
25 contained in an instrument (including an
instrument issued or made outside Australia),
as in force or existing at the time when the
direction takes effect or as in force or
existing from time to time, being a code of
30 practice or standard that is relevant to that
matter.
(7) A direction under this section may prohibit
the doing of an act or thing either
unconditionally or subject to conditions.
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(8) A direction under this section has effect and
shall be complied with despite any previous
direction under this section.
(9) A person must comply with a direction in
5 force under sub-section (1) that applies to the
person.
Penalty: 100 penalty units.
(10) If--
(a) a direction given under this section
10 applies to a market participant and
another person and that other person is
prosecuted for an offence against sub-
section (9) in relation to the direction;
and
15 (b) the person adduces evidence that the
person did not know, and could not
reasonably be expected to have known,
of the existence of the direction--
the person shall not be convicted of the
20 offence unless the prosecutor proves that the
person knew, or could reasonably be
expected to have known, of the existence of
the direction.
16I. Protection from liability
25 (1) A director of VENCorp is not personally
liable for anything done or omitted to be
done in good faith--
(a) in the exercise of a power under section
16H; or
30 (b) in the reasonable belief that the act or
omission was in the exercise of such a
power.
(2) Any liability resulting from an act or
omission that, but for sub-section (1), would
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attach to a director attaches instead to
VENCorp.
16J. Immunity from suit
A person acting in good faith in the
5 execution of any direction under this
Division is not liable to any action, claim or
demand on account of any damage, loss or
injury sustained or alleged to be sustained
because of any thing done under the
10 direction.
16K. Continuing offences
(1) If an offence is committed by a person by
reason of a failure to comply, within the
period specified in a direction given in a
15 direction under section 16H, with the
requirements specified in the direction, the
offence, for the purposes of sub-section (2) is
deemed to continue so long as any
requirement specified in the direction
20 remains undone, whether or not the period
has elapsed.
(2) If, under sub-section (1), an offence is
deemed to continue, the person who
committed the offence commits an additional
25 offence on each day during which the
offence is deemed to continue and is liable,
upon conviction for such an additional
offence, to a fine not exceeding 10 penalty
units.
30 16L. Review of this Part
(1) The Minister must cause a review of this Part
to be undertaken in 2007 by the ACCC or
another person nominated by the Minister.
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(2) The person undertaking the review must
report in writing to the Minister on the
outcome of the review on or before 31
December 2007.
5 (3) The matters to be addressed in the review are
whether or not there is a continuing need for
VENCorp, or a similar statutory authority,
with particular regard to--
(a) the competitiveness of markets for and
10 in relation to gas; and
(b) such other matters as the Minister
determines.".
12. Directors of VENCorp not to have interest in
electricity licensee
15 After section 16F(2)(b) of the Principal Act
insert--
" ; and
(c) none of whom has a material personal
interest (within the meaning of section 232A
20 of the Corporations Law) in a person that
holds a licence under section 162 of the
Electricity Industry Act 1993.".
13. Heading to Division 3
In the heading to Division 3 of Part 2 of the
25 Principal Act, before "gas" insert "statutory".
14. New section 17 substituted
For section 17 of the Principal Act substitute--
"17. Schedule 1
(1) Schedule 1 applies to GTC, unless an
30 Administrator of GTC has been appointed
under this Division.
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(2) Schedule 1 applies to GASCOR, unless an
Administrator of GASCOR has been
appointed under this Division.
(3) Schedule 1, except clauses 2, 3 and 4,
5 applies to VENCorp.
(4) Clause 11 of Schedule 1 does not apply in
relation to a director of VENCorp in respect
of a matter relating to the business of another
gas company or of a gas producer or gas
10 storage provider by reason only that the
director is an officer or employee of, or
holds shares in, that other gas company or
the gas producer or gas storage provider.".
15. New Part 3 substituted
15 For Part 3 of the Principal Act substitute--
"PART 3--TRANSMISSION AND
DISTRIBUTION OF GAS
32. Gas retailer not liable for failure to supply
gas
20 (1) Despite anything to the contrary in this or
any other Act or in any contract, a gas
retailer is not liable to any penalty or
damages for failing to supply gas if the
failure arises out of any accident or cause
25 beyond the control of the gas retailer.
(2) A gas retailer may enter into an agreement
with a person varying or excluding the
operation of sub-section (1) and, to the
extent of that agreement, that sub-section
30 does not apply.
(3) Nothing in sub-section (1) or (2) affects the
liability of a gas company under the Gas
Safety Act 1997.
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33. Exemption from liability to transmit or
convey gas
(1) Despite anything to the contrary in this or
any other Act or in any contract--
5 (a) a gas transmission company is not
liable to any penalty or damages for
failing to accept gas for injection into,
or make gas available for withdrawal
from, transmission pipelines if the
10 failure arises out of any accident or
cause beyond the control of the gas
transmission company;
(b) a gas distribution company is not liable
to any penalty or damages for failing to
15 convey gas through distribution
pipelines if the failure arises out of any
accident or cause beyond the control of
the gas distribution company.
(2) A gas transmission company or a gas
20 distribution company may enter into an
agreement with a person varying or
excluding the operation of sub-section (1)
and, to the extent of that agreement, that sub-
section does not apply.
25 (3) Nothing in sub-section (1) or (2) affects the
liability of a gas company under the Gas
Safety Act 1997.".
16. Amendment of Part 4
Sections 47 and 48 of the Principal Act are
30 repealed.
17. New Parts 4A and 4B inserted
After Part 4 of the Principal Act insert--
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'PART 4A--REGULATION OF GAS INDUSTRY
Division 1--Regulation of tariffs and charges
48A. Tariffs and charges Orders
(1) The Governor in Council may, by Order
5 published in the Government Gazette,
regulate, in such manner as the Governor in
Council thinks fit--
(a) tariffs for the sale of gas to customers,
other than non-franchise customers;
10 (b) charges for connection to, and the use
of, any distribution pipeline;
(c) charges for connection to, and the use
of, any transmission pipeline;
(d) such other prices or charges in respect
15 of goods and services provided by a gas
company as may be declared in
accordance with sub-section (2) to be
goods and services to which the Order
applies.
20 (2) The Order may declare goods and services to
be goods and services to which the Order
applies.
(3) Without limiting the generality of sub-
section (1), the manner may include--
25 (a) fixing the price or the rate of increase
or decrease in the price;
(b) fixing a maximum price or maximum
rate of increase or minimum rate of
decrease in the maximum price;
30 (c) fixing an average price for specified
goods or services or an average rate of
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increase or decrease in the average
price;
(d) specifying an amount determined by
reference to a general price index, the
5 cost of production, a rate of return on
assets employed or any other specified
factor;
(e) specifying an amount determined by
reference to quantity, location, period
10 or other specified factor relevant to the
rate or supply of the goods or services;
(f) fixing a maximum revenue or
maximum rate of increase or minimum
rate of decrease in the maximum
15 revenue in relation to specified goods
or services.
(4) The Order may confer functions and powers
on the ACCC or ORG relating to the
regulation of tariffs and charges under the
20 Order.
(5) If the provisions of an Order relating to
charges under sub-section (1)(b) or (c) are
inconsistent with charges specified in an
access arrangement approved under the
25 Access Code, the provisions do not apply to
the extent of the inconsistency.
(6) Sections 35 and 36 of the Office of the
Regulator-General Act 1994 apply to an
Order under this section as if it were a
30 determination made by ORG under that Act.
Division 2--Licensing of gas distribution
companies and gas retailers
48B. Offence to distribute or retail gas without
licence
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(1) A person must not provide services (other
than the sale of gas by retail) by means of a
distribution pipeline, either as principal or
agent, unless the person--
5 (a) is the holder of a licence authorising
that person to provide those services; or
(b) is exempt from the requirement to
obtain a licence in respect of those
services because of an Order under
10 section 48C.
Penalty: 1000 penalty units and 100
penalty units for each day after the
day on which a notice of
contravention of this sub-section
15 is served on the person by ORG.
(2) A person must not engage in the sale of gas
by retail, either as principal or agent, unless
the person--
(a) is the holder of a licence authorising the
20 sale of gas by retail; or
(b) is exempt from the requirement to
obtain a licence in respect of the sale of
gas by retail because of an Order under
section 48C.
25 Penalty: 1000 penalty units and 100
penalty units for each day after the
day on which a notice of
contravention of this sub-section
is served on the person by ORG.
30 48C. Exemptions
(1) The Governor in Council may, by Order
published in the Government Gazette,
exempt a person from the requirement to
obtain a licence in respect of the activity
35 specified in the Order.
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(2) An exemption may be of general or specific
application.
(3) An exemption is subject to such terms and
conditions as are specified in the Order.
5 48D. Application for licence
(1) A body corporate may apply to ORG for the
issue of a licence--
(a) authorising the person to provide
services by means of a distribution
10 pipeline; or
(b) authorising the person to sell gas by
retail.
(2) An application must be in a form approved
by ORG and accompanied by such
15 documents as may be determined by ORG.
(3) An application must be accompanied by the
application fee (if any) fixed by ORG.
48E. Determination of application
(1) Subject to sub-section (2), ORG may grant
20 or refuse an application for the issue of a
licence for any reason it considers
appropriate, having regard to the objectives
specified in section 8B.
(2) If ORG has issued a licence authorising a gas
25 retailer to sell gas to customers, other than
non-franchise customers, ORG must not
issue a licence to another applicant
authorising the sale of gas to those customers
unless the Minister and the other licensed
30 gas retailer have consented to the issue of the
licence.
(3) ORG must publish a notice in a daily
newspaper generally circulating in
Victoria--
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(a) specifying that an application for a
licence has been lodged with ORG by
the person specified in the notice; and
(b) inviting interested persons to make
5 submissions to ORG in respect of the
application within the period and in the
manner specified in the notice.
(4) Subject to this section and any requirements
specified in regulations made for the
10 purposes of this section under section 102,
ORG may determine the procedures that are
to apply in respect of the issue of licences.
(5) ORG must notify an applicant in writing of
its decision to grant or refuse to grant the
15 application and, in the case of a decision to
refuse to grant the application, of the reasons
for its decision.
48F. Provisions relating to licences
(1) A licence is to be issued for such term (if
20 any) as is determined by ORG and is
specified in the licence.
(2) A licence is subject--
(a) in the case of a licence to provide
services by means of a distribution
25 pipeline, to a condition that the holder
comply with the Access Code, to the
extent that it applies to the licensee;
(b) in the case of a licence issued to a
market participant, to a condition that
30 the holder comply with the MSO Rules,
to the extent that they apply to the
licensee;
(c) in the case of any licence, to such other
conditions as are determined by ORG.
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(3) If a licence is issued to 2 or more persons for
the purpose of the carrying on by those
persons of activities under the licence in
partnership or as an unincorporated joint
5 venture, the licence may include conditions
relating to the carrying on of those activities
in that manner.
(4) Without limiting the generality of sub-
section (2) or (3), the conditions may include
10 provisions--
(a) requiring the licensee to pay specified
fees and charges in respect of the
licence to ORG;
(b) requiring the licensee to enter into
15 agreements on specified terms or on
terms of a specified type;
(c) requiring the licensee to observe
specified industry codes and specified
industry rules with such modifications
20 or exemptions as may be determined by
ORG;
(d) requiring the licensee to maintain
specified accounting records and to
prepare accounts according to specified
25 principles;
(e) specifying requirements about the
ownership of real or personal property
used in or in connection with the
carrying on of activities under the
30 licence;
(f) preventing the licensee from engaging
in or undertaking specified business
activities;
(g) restricting the classes of customers to
35 whom the licensee may sell gas or
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provide services under the licence, as
the case requires;
(h) specifying methods or principles to be
applied by the licensee in determining
5 prices or charges;
(i) specifying methods or principles to be
applied in the conduct of gas retailing
or the provision of services under the
licence, as the case requires;
10 (j) specifying procedures for variation or
revocation of the licence;
(k) specifying procedures for variation of
the conditions by the Treasurer;
(l) specifying the procedures to apply if an
15 administrator is appointed under
section 48L;
(m) requiring the licensee to provide, in the
manner and form determined by ORG,
such information as ORG may from
20 time to time require;
(n) requiring the licensee to develop, issue
and comply with customer-related
standards, procedures, policies and
practices (including with respect to the
25 payment of compensation to
customers).
(5) For the purposes of sub-section (4)(a), the
fees and charges to be specified in respect of
a licence are to be determined by the
30 Minister having regard to the proportion of
the total costs of ORG that are incurred in
the administration of this Part.
(6) If a licence is subject to conditions of a kind
referred to in sub-section (4)(c), ORG--
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(a) may, in accordance with procedures
specified by ORG, amend the specified
industry codes or specified rules, or a
document referred to in such a code or
5 rule, for the purposes of their
application under the licence;
(b) may resolve, or seek to resolve,
disputes between the licensee and any
other person relating to the specified
10 industry codes or specified rules, or a
document referred to in such a code or
rule, as they apply under the licence.
(7) If ORG amends an industry code or the rules
or a document referred to in a code or the
15 rules under sub-section (6), ORG may at the
same time, in accordance with procedures
specified by ORG, amend that code or those
rules or that document for the purposes of
their application otherwise than under the
20 licence.
48G. Conditions in licence
(1) Without limiting the generality of section
48F, the conditions to which a licence to sell
gas by retail is subject may include a
25 requirement that, in certain circumstances,
the licensee, on terms and conditions
approved by ORG, sell gas to non-franchise
customers to whom gas is sold under another
licence (whether held by that licensee or
30 another licensee).
(2) In approving the terms and conditions of a
requirement referred to in sub-section (1),
ORG must have regard to the risks and costs
associated with the requirement.
35 (3) A requirement referred to in sub-section (1)
does not apply so as to require the licensee to
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sell gas to a non-franchise customer to whom
gas is sold under another licence if the non-
franchise customer elects, in writing given to
the holder of that other licence, not to be a
5 non-franchise customer for the purposes of
sub-section (1).
(4) If the conditions to which a licence of a
licensee is subject include a requirement
referred to in sub-section (1), the licensee is
10 deemed to be authorised to sell gas to the
extent necessary to comply with the
requirement.
(5) The obligation of the holder of a licence
("the second licence") to sell gas by retail to
15 a non-franchise customer to whom gas is
sold under another licence ("the first
licence") in accordance with the requirement
referred to in sub-section (1) commences
when--
20 (a) the first licence is suspended or
revoked; or
(b) the right of the holder of the first
licence to acquire gas under the MSO
Rules is suspended or terminated--
25 whichever first occurs, and ends after 3
months or when the non-franchise customer
advises the holder of the second licence in
writing that the sale is no longer required,
whichever first occurs.
30 (6) A gas retailer to which a condition referred
to in sub-section (1) applies must declare, if
the condition so requires or, in any other
case, may declare, from time to time, subject
to that condition and any other conditions of
35 its licence and with the approval of ORG, by
notice published in the Government Gazette,
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the terms and conditions upon which the gas
retailer will sell gas by retail to non-
franchise customers to whom gas is sold
under another licence in circumstances to
5 which sub-section (5) applies.
(7) The terms and conditions of which notice
has been given by a gas retailer in
accordance with sub-section (6) are binding
on the gas retailer and the non-franchise
10 customers to whom they apply and, when the
gas retailer is acting in accordance with the
condition referred to in sub-section (1), the
terms and conditions have effect despite any
agreement or instrument (other than this Act
15 or any Order made under section 48A) to the
contrary relating to the sale of gas by retail
to those customers.
(8) A gas retailer and a non-franchise customer
to whom the gas retailer has an obligation
20 under sub-section (5) to sell gas by retail are
deemed to have entered into a contract on the
terms and conditions published under sub-
section (6).
48H. Variation or revocation of licence
25 (1) A licence or the licence conditions may be
varied--
(a) in accordance with the procedures
specified in the licence conditions; or
(b) by agreement between ORG and the
30 licensee; or
(c) by a notice in accordance with sub-
section (2) served on the licensee.
(2) ORG must not vary a licence or the licence
conditions by a notice unless--
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(a) ORG is satisfied that the variation is
necessary having regard to the
objectives specified in section 8B; and
(b) ORG has given the licensee an
5 opportunity to make representations on
the matter.
(3) ORG may revoke a licence in accordance
with the procedures specified in the licence
conditions.
10 48I. Gazettal requirement
ORG must ensure that--
(a) notice of the grant of a licence
including--
(i) the name of the licensee;
15 (ii) the term of the licence;
(iii) the place where a copy of the
licence may be inspected;
(b) notice of a variation or revocation
under section 48H--
20 is published in the Government Gazette as
soon as possible after the grant of a licence
or the variation or revocation, as the case
requires.
48J. Appointment of administrator
25 (1) This section applies if ORG considers that--
(a) the contravention by a licensee of the
licence conditions threatens the security
of the gas supply;
(b) any other remedies to enforce
30 compliance are not adequate.
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(2) ORG may appoint an administrator to the
business in respect of which the licence is
issued.
(3) The administrator has such functions and
5 powers in relation to the business in respect
of which the licence is issued as are specified
in the appointment of the administrator.
(4) Unless sooner revoked by ORG, the
appointment of an administrator has effect
10 for a period of 28 days but the appointment
may be renewed for a further period or
periods, each period not exceeding 28 days.
(5) The terms and conditions (including
remuneration) of appointment of the
15 administrator are to be determined by ORG.
48K. Transfer of licence
(1) The holder of a licence may apply to ORG
for approval to transfer the licence.
(2) An application must be in a form approved
20 by ORG and accompanied by such
documents as may be determined by ORG.
(3) An application must be accompanied by the
application fee (if any) fixed by ORG.
(4) ORG must publish in a daily newspaper
25 generally circulating in Victoria a notice--
(a) specifying that an application for the
transfer of the licence has been lodged
with ORG for the transfer by the holder
to a proposed transferee specified in the
30 notice; and
(b) inviting interested persons to make
submissions to ORG in respect of the
application within the period and in the
manner specified in the notice.
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(5) Subject to this section, ORG may approve,
or refuse to approve, the application for any
reason it considers appropriate, having
regard to the objectives specified in section
5 8B.
(6) ORG may determine that, upon the transfer
of the licence under this section, the
conditions to which the licence is subject are
varied as determined by ORG.
10 (7) Subject to this section and any requirements
specified in regulations made for the
purposes of this section under section 102,
ORG may determine the procedures that are
to apply in respect of the transfer of a
15 licence.
(8) ORG must notify an applicant in writing of
its decision to approve or refuse to approve
the application and, in the case of a decision
to refuse to approve the application, of the
20 reasons for its decision.
(9) ORG must ensure that notice of the approval
for the transfer of a licence is published in
the Government Gazette as soon as possible
after the decision to approve the transfer is
25 made.
48L. Transitional provisions
(1) The Treasurer may give directions to ORG
as to the terms and conditions to be included
in the licences under this Part that are issued
30 on the commencement of section 17 of the
Gas Industry (Further Amendment) Act
1997.
(2) ORG may dispense with such requirements
of this Part as ORG considers appropriate in
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respect of the issue of the initial licences
under this Part.
48M. Obligations of gas retailer
(1) A gas retailer may from time to time, subject
5 to the conditions of its licence and to
Division 1, give notice of the tariffs and the
terms and conditions upon which the gas
retailer sells gas to customers, other than
non-franchise customers.
10 (2) A gas retailer may, subject to the conditions
of its licence and to Division 1, give notice
of different tariffs and terms and conditions
in respect of any class of customers.
(3) The tariffs and terms and conditions of
15 which notice has been given by a gas retailer
have effect from the day of the publication of
the notice in the Government Gazette and are
binding on the gas retailer and the customers
(being non-franchise customers) to whom
20 they apply.
(4) A gas retailer is deemed to have entered into
a contract with a customer, other than a non-
franchise customer, on the tariffs and terms
and conditions published under sub-section
25 (3).
(5) Despite anything to the contrary in this
section, a gas retailer may enter into a
contract with any customer for the sale of
gas at such rate and on such terms and
30 conditions as may be specified in the
contract.
(6) A gas retailer must not disconnect the
domestic supply of gas to any premises for
failure by the customer to pay an account for
35 that supply if the failure occurs through lack
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of sufficient income of the customer and of
any other person normally resident on the
premises supplied until--
(a) the gas retailer has offered to advise the
5 customer about--
(i) optional methods of arranging
payment of the account; and
(ii) other ways of assisting the
customer to pay the account which
10 may be available from
government agencies; and
(b) the customer--
(i) refuses or fails to accept that offer
of advice within a time specified
15 by the gas retailer in each case
(being not less than 7 days); or
(ii) accepts the offer of advice, but
refuses or fails to take any
reasonable action to pay the
20 account within a time specified by
the gas retailer in each case (being
not less than 7 days).
Division 3--Market and System Operation
Rules
25 48N. MSO Rules
(1) The Governor in Council, on the
recommendation of the Minister, by Order
published in the Government Gazette, may
make rules for the regulation of--
30 (a) the operation of a market for gas;
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(b) the activities of market participants in a
market for gas;
(c) the operation of the gas transmission
system for the purposes of--
5 (i) the security of the system;
(ii) the achievement of the market
objectives referred to in sub-
section (2).
(2) The market objectives are to establish a
10 competitive, reliable and efficient market for
gas--
(a) in which market participants can
choose with whom they trade;
(b) in which third parties are granted
15 access to the gas transmission system in
accordance with this Act and orders
made under it;
(c) in which, to the extent practicable, the
trading of gas from different sources is
20 not differentiated;
(d) in which prices are governed as far as
practicable by commercial and market
forces rather than regulation;
(e) in which efficiency is encouraged.
25 (3) The rules made under this section may
confer functions and powers on the ACCC.
(4) Rules made under this section, including
rules modified in accordance with this sub-
section, may be modified by the VENCorp,
30 after consultation in accordance with the
rules, by notice published in the Government
Gazette.
48O. Proceedings
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(1) A person may not bring civil proceedings in
respect of a matter arising under this
Division, except in accordance with this
Division.
5 (2) The ACCC may, in accordance with this
Division, bring civil proceedings in respect
of a civil penalty provision or a regulatory
provision.
(3) The ACCC or any other person may, in
10 accordance with this Division, bring civil
proceedings in respect of a conduct
provision.
(4) Nothing in this section affects the right of a
person to bring civil proceedings in respect
15 of any matter or thing, or seek any relief or
remedy, if the cause of action arises, or the
relief or remedy is sought, on grounds that
do not rely on this Division.
48P. Criminal proceedings do not lie
20 (1) Criminal proceedings do not lie against a
person by reason only that the person--
(a) has contravened a provision of this
Division;
(b) has attempted to contravene such a
25 provision;
(c) has aided, abetted, counselled or
procured a person to contravene such a
provision;
(d) has induced, or attempted to induce, a
30 person, whether by threats or promises
or otherwise, to contravene such a
provision;
(e) has been in any way, directly or
indirectly, knowingly concerned in, or
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party to, the contravention by a person
of such a provision; or
(f) has conspired with others to contravene
such a provision.
5 (2) Sub-section (1) does not apply in respect of a
provision of this Division for an offence
against which a penalty is prescribed by this
Division.
48Q. Civil penalty
10 (1) The ACCC may apply to a court for an order
under this Division in respect of a
contravention by a person of a civil penalty
provision or the doing by a person of any
other thing mentioned in sub-section (2).
15 (2) If the court is satisfied that a person--
(a) has contravened a civil penalty
provision; or
(b) has attempted to contravene such
provision; or
20 (c) has aided, abetted, counselled or
procured a person to contravene such a
provision; or
(d) has induced, or attempted to induce, a
person whether by threats or promises
25 or otherwise, to contravene such a
provision; or
(e) has been in any way, directly or
indirectly, knowingly concerned in, or
party to, the contravention by a person
30 of such a provision; or
(f) has conspired with others to contravene
such a provision--
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the court may order the person to pay to the
Minister for payment to the Consolidated
Fund such pecuniary penalty, in respect of
each act or omission by the person to which
5 this section applies, as the court determines
to be appropriate having regard to all
relevant matters including--
(g) the nature and extent of the act or
omission and of any loss or damage
10 suffered as a result of the act or
omission; and
(h) the circumstances in which the act or
omission took place; and
(i) whether the person has previously been
15 found by a court in proceedings under
this Division to have contravened a
civil penalty provision.
(3) The pecuniary penalty payable under sub-
section (2) must not exceed the penalty
20 prescribed by the Regulations for the act or
omission to which this section applies.
48R. Injunctions
(1) If, on an application in accordance with sub-
section (2), the Supreme Court is satisfied
25 that a person has engaged, or is proposing to
engage, in conduct that constitutes or would
constitute--
(a) a contravention of a provision that,
under the MSO Rules, is a regulatory
30 provision or conduct provision of the
MSO Rules; or
(b) attempting to contravene such a
regulatory provision or conduct
provision--
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the Court may grant an injunction in such
terms as the Court determines to be
appropriate.
(2) An application under sub-section (1) may be
5 made--
(a) in the case of a regulatory provision, by
the ACCC;
(b) in the case of a conduct provision, by
the ACCC or any other person.
10 (3) If an application for an injunction under sub-
section (1) has been made the Court may, if
the Court determines it to be appropriate,
grant an injunction by consent of all the
parties to the proceedings, whether or not the
15 Court is satisfied that a person has engaged,
or is proposing to engage, in conduct of a
kind mentioned in sub-section (1).
(4) If in the opinion of the Court it is desirable to
do so, the Court may grant an interim
20 injunction pending determination of an
application under sub-section (1).
(5) The Court may rescind or vary an injunction
granted under sub-section (1) or (3).
(6) The power of the Court to grant an
25 injunction restraining a person from
engaging in conduct may be exercised--
(a) whether or not it appears to the Court
that the person intends to engage again,
or to continue to engage, in conduct of
30 that kind; and
(b) whether or not the person has
previously engaged in conduct of that
kind; and
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(c) whether or not there is an imminent
danger of substantial damage to any
other person or to property if the person
engages in conduct of that kind.
5 (7) The power of the Court to grant an
injunction requiring a person to do an act or
thing may be exercised--
(a) whether or not it appears to the Court
that the person intends to refuse or fail
10 again, or to continue to refuse or fail, to
do that act or thing;
(b) whether or not the person has
previously refused or failed to do that
act or thing; and
15 (c) whether or not there is an imminent
danger of substantial damage to any
other person or to property if the person
refuses or fails to do that act or thing.
(8) If the ACCC makes an application to the
20 Court for the grant of an injunction under
this section, the Court shall not require the
applicant or any other person, as a condition
of granting an interim injunction, to give any
undertakings as to damages.
25 48S. Actions for damages for contravention of
conduct provision
(1) A person who suffers loss or damage by
conduct of another that was done in
contravention of a conduct provision may,
30 subject to and in accordance with the MSO
Rules, recover the amount of the loss or
damage by action against that other person
or against any person involved in the
contravention.
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(2) An action under sub-section (1) may be
commenced at any time within 3 years after
the date on which the cause of action
accrued.
5 (3) A reference in sub-section (1) to a person
involved in a contravention of a conduct
provision is a reference to a person who--
(a) has aided, abetted, counselled or
procured the contravention;
10 (b) has induced, whether by threats or
promises or otherwise, the
contravention; or
(c) has been in any way, directly or
indirectly, knowingly concerned in, or
15 party to, the contravention; or
(d) has conspired with others to effect the
contravention.
48T. Declaratory relief
(1) The Supreme Court, on an application by a
20 person shall, by order, declare whether or not
the person to which the application relates
has contravened a regulatory provision or
conduct provision.
(2) An application under sub-section (1) may be
25 made, subject to and in accordance with the
MSO Rules--
(a) in the case of a regulatory provision, by
the ACCC;
(b) in the case of a conduct provision, by
30 the ACCC or any other person.
(3) If the order declares the person to have
contravened a regulatory provision or
conduct provision, the order may include one
or more of the following--
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(a) a requirement that the person cease,
within a specified period, the act,
activity or practice constituting the
contravention;
5 (b) a requirement that the person take such
action, or adopt such practice, as the
Court requires for remedying the
contravention or preventing a
recurrence of the contravention;
10 (c) a requirement that the person
implement a specified program for
compliance with the MSO Rules.
PART 4B--THIRD PARTY ACCESS
Division 1--The Access Code
15 48U. Establishing the Access Code
(1) The Governor in Council, on the
recommendation of the Minister, by Order
published in the Government Gazette, may
establish an Access Code with respect to
20 third party access to transmission pipelines
and distribution pipelines for natural gas.
(2) The Access Code established under sub-
section (1) may make provision for or with
respect to--
25 (a) requiring persons who own or operate
transmission pipelines or distribution
pipelines--
(i) to satisfy specified requirements
as to the carrying on of business
30 as an owner or operator of
pipelines;
(ii) to provide terms and conditions on
which third party access
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arrangements are offered in
respect of transmission pipelines
or distribution pipelines;
(iii) to provide information about
5 access arrangements;
(b) specifying procedures with respect to
the resolution of disputes between
persons who own or operate
transmission pipelines or distribution
10 pipelines and persons seeking access to
them;
(c) making provision for any other matter
or thing required or permitted to be
provided for in the Order or necessary
15 to be provided for to give effect to this
Part.
(3) An access arrangement that concerns a
transmission pipeline or a distribution
pipeline situated partly in Victoria and partly
20 in another State or in a Territory may be
expressed to apply to any part of the pipeline
situated in that other State or Territory.
(4) An access arrangement under a law of
another State or a Territory, being an
25 arrangement--
(a) that is recognised by the Regulations as
being the equivalent of an access
arrangement made in accordance with
the Access Code; and
30 (b) that concerns a transmission pipeline or
a distribution pipeline situated partly in
Victoria and partly in some other State
or in a Territory; and
(c) that is expressed to apply to a part of
35 the pipeline situated in Victoria--
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has effect in relation to the part of the
pipeline situated in Victoria as if it were an
access arrangement made in accordance with
the Access Code.
5 (5) A determination of an arbitrator under
Division 2 that concerns a transmission
pipeline or a distribution pipeline situated
partly in Victoria and partly in some other
State or in a Territory may, if the parties to
10 the dispute agree, be expressed to apply to
any part of the pipeline situated in the other
State or Territory.
(6) A determination under a law of another State
or of a Territory, being a determination--
15 (a) that is recognised by the Regulations as
being the equivalent of a determination
of an arbitrator under Division 2; and
(b) that concerns a transmission pipeline or
a distribution pipeline situated partly in
20 Victoria and partly in some other State
or in a Territory; and
(c) that, with the agreement of the parties,
is expressed to apply to a part of the
pipeline situated in Victoria--
25 has effect in relation to the part of the
pipeline situated in Victoria as if it were a
determination of an arbitrator under
Division 2.
(7) The Access Code may be made--
30 (a) so as to apply--
(i) at all times or at a specified time;
or
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(ii) throughout the whole of the
State or in a specified part of the
State;
(b) so as to require a matter affected by the
5 Access Code to be--
(i) in accordance with a specified
standard or specified requirement;
or
(ii) approved by or to the satisfaction
10 of a specified person or person of
a specified class;
(c) so as to incorporate, adopt or apply,
wholly or partially or as amended by an
Order under sub-section (1), the
15 provisions of any document, standard,
rule, specification or method
formulated, issued, prescribed or
published by any authority or body
whether--
20 (i) as formulated, issued, prescribed
or published at the time the
Access Code is established or at
any time before the Access Code
is established; or
25 (ii) as amended from time to time;
(d) so as to confer a discretionary authority
on a specified person or person of a
specified class;
(e) so as to provide, in a specified case or
30 class of cases for the exemption of
persons or things or a class of persons
or things from any of the provisions of
the Access Code, whether
unconditionally or on specified
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conditions and either wholly or to the
extent specified.
(8) The Access Code may confer functions or
powers on the ACCC or ORG.
5 (9) The Access Code may provide for the
payment of fees prescribed by the
Regulations to the ACCC or ORG for its
services under the Access Code.
(10) The functions and powers conferred on ORG
10 for the purposes of the access regime
established under this Division are not
exercisable by ORG to the extent that those
functions and powers are conferred on the
ACCC under this Part.
15 Division 2--Arbitration of access disputes
48V. Definitions and application
(1) In this Division--
"access dispute" means a dispute between a
service provider and another person
20 that, in accordance with the Access
Code, may be referred to arbitration
under this Division;
"arbitrator" means the Regulator or a
person appointed by the Regulator to
25 conduct an arbitration relating to an
access dispute;
"party" means a service provider or other
person involved in an access dispute.
(2) This Division applies if--
30 (a) in accordance with the Access Code, a
service provider or another person
notifies the Regulator that an access
dispute exists; and
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(b) notification of the dispute is not
withdrawn in accordance with the
Access Code.
48W. Where ACCC conducts arbitration
5 (1) For the purposes of a particular arbitration
where it is the arbitrator, the ACCC is to be
constituted by 2 or more members of the
ACCC nominated in writing by the
Chairperson.
10 (2) Subject to sub-section (3), the Chairperson
of the ACCC is to preside at an arbitration.
(3) If the Chairperson is not a member of the
Commission as constituted under sub-section
(1) in relation to a particular arbitration, the
15 Chairperson must nominate a member of the
ACCC to preside at the arbitration.
(4) If a member of the ACCC who is one of the
members who constitute the ACCC for the
purposes of a particular arbitration--
20 (a) stops being a member of the ACCC; or
(b) for any reason, is not available for the
purpose of the arbitration--
the Chairperson must either--
(c) direct that the ACCC is to be
25 constituted for the purposes of finishing
the arbitration by the remaining
member or members; or
(d) direct that the ACCC is to be
constituted for that purpose by the
30 remaining member or members
together with one or more other
members of the Commission.
(5) If a direction under sub-section (4) is given,
the ACCC as constituted in accordance with
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the direction must continue and finish the
arbitration and may, for that purpose, have
regard to any record of the proceedings of
the arbitration made by the ACCC as
5 previously constituted.
(6) If the ACCC is constituted for an arbitration
by 2 or more members of the ACCC, any
question before the ACCC is to be decided--
(a) unless paragraph (b) applies, according
10 to the opinion of the majority of those
members; or
(b) if the members are evenly divided on a
question, according to the opinion of
the member who is presiding.
15 48X. Person to conduct arbitration
The Regulator must conduct the arbitration
or appoint a person to do so.
48Y. Hearing to be in private
(1) Subject to sub-section (2), an arbitration
20 hearing is to be in private.
(2) If the parties agree, an arbitration hearing or
part of an arbitration hearing may be
conducted in public.
(3) The arbitrator may give written directions as
25 to the persons who may be present at an
arbitration hearing that is conducted in
private.
(4) In giving directions under sub-section (3),
the arbitrator must have regard to the wishes
30 of the parties and the need for commercial
confidentiality.
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48Z. Right to representation
In an arbitration hearing under this Division,
a party may appear in person or be
represented by someone else.
5 48ZA. Procedure
(1) In an arbitration hearing under this Division,
the arbitrator--
(a) is not bound by technicalities, legal
forms or rules of evidence; and
10 (b) must act as speedily as a proper
consideration of the dispute allows,
having regard to the need carefully and
quickly to inquire into and investigate
the dispute and all matters affecting the
15 merits, and fair settlement, of the
dispute; and
(c) may gather information about any
matter relevant to the access dispute in
any way the arbitrator thinks
20 appropriate.
(2) Subject to the Access Code, the arbitrator
may determine the periods that are
reasonably necessary for the fair and
adequate presentation of the respective cases
25 of the parties in the arbitration hearing, and
may require that the cases be presented
within those periods.
(3) The arbitrator may require evidence or
argument to be presented in writing, and may
30 decide the matters on which the arbitrator
will hear oral evidence or argument.
(4) The arbitrator may determine that an
arbitration hearing is to be conducted by--
(a) telephone; or
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(b) closed circuit television; or
(c) any other means of communication.
48ZB. Particular powers of arbitrator
The arbitrator may do any of the following
5 things for the purpose of arbitrating an
access dispute--
(a) give a direction in the course of, or for
the purposes of, an arbitration hearing;
(b) hear and determine the arbitration in
10 the absence of a party who has been
given notice of the hearing;
(c) sit at any place;
(d) adjourn to any time and place;
(e) refer any matter to an expert and accept
15 the expert's report as evidence.
48ZC. Contempt
A person must not do any act or thing in
relation to the arbitration of an access
dispute that would be a contempt of court if
20 the arbitrator were a court of record.
Penalty: Imprisonment for 6 months.
48ZD. Disclosure of information
(1) An arbitrator may give an oral or written
order to a person not to divulge or
25 communicate to anyone else specified
information that was given to the person in
the course of an arbitration unless the person
has the arbitrator's permission.
(2) A person must not contravene an order under
30 sub-section (1).
Penalty: Imprisonment for 6 months.
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48ZE. Power to take evidence on oath or
affirmation
(1) The arbitrator may take evidence on oath or
affirmation and for that purpose the
5 arbitrator may administer an oath or
affirmation.
(2) The arbitrator may summon a person to
appear before the arbitrator to give evidence
and to produce such documents (if any) as
10 are referred to in the summons.
(3) The powers in this section may be exercised
only for the purposes of arbitrating an access
dispute under this Division.
48ZF. Failing to attend as a witness
15 A person who is served, as prescribed by the
regulations, with a summons to appear as a
witness before the arbitrator must not,
without reasonable excuse--
(a) fail to attend as required by the
20 summons; or
(b) fail to appear and report himself or
herself from day to day unless excused,
or released from further attendance, by
the arbitrator.
25 Penalty: Imprisonment for 6 months.
48ZG. Failing to answer questions etc.
(1) A person appearing as a witness before the
arbitrator must not, without reasonable
excuse--
30 (a) refuse or fail to be sworn or to make an
affirmation; or
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(b) refuse or fail to answer a question that
the person is required to answer by the
arbitrator; or
(c) refuse or fail to produce a document
5 that he or she is required to produce by
a summons under this Division served
on him or her as prescribed.
Penalty: Imprisonment for 6 months.
(2) It is a reasonable excuse for the purposes of
10 sub-section (1) for an individual 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 tend to
incriminate the individual or to expose the
15 individual to a penalty.
(3) Sub-section (2) does not limit what is a
reasonable excuse for the purposes of sub-
section (1).
48ZH. Intimidation etc.
20 A person must not--
(a) threaten, intimidate or coerce another
person; or
(b) cause or procure damage, loss or
disadvantage to another person--
25 because that other person--
(c) proposes to produce, or has produced,
documents to the arbitrator; or
(d) proposes to appear or has appeared as a
witness before the arbitrator.
30 Penalty: Imprisonment for 12 months.
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48ZI. Party may request arbitrator to treat
material as confidential
(1) A party to an arbitration hearing may--
(a) inform the arbitrator that, in the party's
5 opinion, a specified part of a document
contains confidential information; and
(b) request the arbitrator not to give a copy
of that part to another party.
(2) On receiving a request, the arbitrator must--
10 (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
15 (b) ask the other party or parties whether
there is any objection to the arbitrator
complying with the request.
(3) If there is an objection to the arbitrator
complying with the request, the party
20 objecting may inform the arbitrator of the
objection and of the reasons for it.
(4) After considering--
(a) a request; and
(b) any objection; and
25 (c) any further submissions that any party
has made in relation to the request--
the arbitrator may decide not to give to the
other party or parties a copy of so much of
the document as contains confidential
30 information that the arbitrator thinks should
not be given.
48ZJ. Parties to pay costs of an arbitration
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The regulations may provide for the
arbitrator to--
(a) charge the parties to an arbitration for
the costs of conducting the arbitration;
5 and
(b) apportion the charge between the
parties.
Division 3--Proceedings for contravention of
Part
10 48ZK. Proceedings
(1) A person may not bring civil proceedings in
respect of a matter arising under this Part,
except in accordance with this Part.
(2) The ACCC or ORG may, in accordance with
15 this Part, bring civil proceedings in respect
of a civil penalty provision or a regulatory
provision.
(3) The ACCC, ORG or any other person may,
in accordance with this Part, bring civil
20 proceedings in respect of a conduct
provision.
(4) Nothing in this section affects the right of a
person to bring civil proceedings in respect
of any matter or thing, or seek any relief or
25 remedy, if the cause of action arises, or the
relief or remedy is sought, on grounds that
do not rely on this Part.
48ZL. Criminal proceedings do not lie
(1) Criminal proceedings do not lie against a
30 person by reason only that the person--
(a) has contravened a provision of this
Part;
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(b) has attempted to contravene such a
provision;
(c) has aided, abetted, counselled or
procured a person to contravene such a
5 provision;
(d) has induced, or attempted to induce, a
person, whether by threats or promises
or otherwise, to contravene such a
provision;
10 (e) has been in any way, directly or
indirectly, knowingly concerned in, or
party to, the contravention by a person
of such a provision; or
(f) has conspired with others to contravene
15 such a provision.
(2) Sub-section (1) does not apply in respect of a
provision of this Part for an offence against
which a penalty is prescribed by this Part.
48ZM. Civil penalty
20 (1) The Regulator may apply to a court for an
order under this Part in respect of a
contravention by a person of a civil penalty
provision or the doing by a person of any
other thing mentioned in sub-section (2).
25 (2) If the court is satisfied that a person--
(a) has contravened a civil penalty
provision; or
(b) has attempted to contravene such
provision; or
30 (c) has aided, abetted, counselled or
procured a person to contravene such a
provision; or
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(d) has induced, or attempted to induce, a
person whether by threats or promises
or otherwise, to contravene such a
provision; or
5 (e) has been in any way, directly or
indirectly, knowingly concerned in, or
party to, the contravention by a person
of such a provision; or
(f) has conspired with others to contravene
10 such a provision--
the court may order the person to pay to the
Minister for payment to the Consolidated
Fund such pecuniary penalty, in respect of
each act or omission by the person to which
15 this section applies, as the court determines
to be appropriate having regard to all
relevant matters including--
(g) the nature and extent of the act or
omission and of any loss or damage
20 suffered as a result of the act or
omission;
(h) the circumstances in which the act or
omission took place; and
(i) whether the person has previously been
25 found by the Court in proceedings
under this Part to have contravened a
civil penalty provision.
(3) The pecuniary penalty payable under sub-
section (2) must not exceed the penalty
30 prescribed by the Regulations for the act or
omission to which this section applies.
48ZN. Injunctions
(1) If, on an application in accordance with sub-
section (2), the Supreme Court is satisfied
35 that a person has engaged, or is proposing to
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engage, in conduct that constitutes or would
constitute--
(a) a contravention of a provision that,
under the Access Code, is a regulatory
5 provision or conduct provision of the
Access Code; or
(b) attempting to contravene such a
regulatory provision or conduct
provision--
10 the Court may grant an injunction in such
terms as the Court determines to be
appropriate.
(2) An application under sub-section (1) may be
made--
15 (a) in the case of a regulatory provision or
conduct provision relating to a
transmission pipeline or a service
provider of a transmission pipeline, by
the ACCC;
20 (b) in the case of a regulatory provision or
conduct provision relating to a
distribution pipeline or a service
provider of a distribution pipeline, by
ORG;
25 (c) in the case of any conduct provision, by
any person other than the ACCC or
ORG (except as provided in paragraphs
(a) and (b)).
(3) If an application for an injunction under sub-
30 section (1) has been made the Court may, if
the Court determines it to be appropriate,
grant an injunction by consent of all the
parties to the proceedings, whether or not the
Court is satisfied that a person has engaged,
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or is proposing to engage, in conduct of a
kind mentioned in sub-section (1).
(4) If in the opinion of the Court it is desirable to
do so, the Court may grant an interim
5 injunction pending determination of an
application under sub-section (1).
(5) The Court may rescind or vary an injunction
granted under sub-section (1) or (3).
(6) The power of the Court to grant an
10 injunction restraining a person from
engaging in conduct may be exercised--
(a) whether or not it appears to the Court
that the person intends to engage again,
or to continue to engage, in conduct of
15 that kind; and
(b) whether or not the person has
previously engaged in conduct of that
kind; and
(c) whether or not there is an imminent
20 danger of substantial damage to any
other person or to property if the person
engages in conduct of that kind.
(7) The power of the Court to grant an
injunction requiring a person to do an act or
25 thing may be exercised--
(a) whether or not it appears to the Court
that the person intends to refuse or fail
again, or to continue to refuse or fail, to
do that act or thing; and
30 (b) whether or not the person has
previously refused or failed to do that
act or thing; and
(c) whether or not there is an imminent
danger of substantial damage to any
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other person or to property if the person
refuses or fails to do that act or thing.
(8) If the ACCC or ORG makes an application
to the Court for the grant of an injunction
5 under this section, the Court shall not require
the applicant or any other person, as a
condition of granting an interim injunction,
to give any undertakings as to damages.
48ZO. Actions for damages for contravention of
10 conduct provision
(1) A person who suffers loss or damage by
conduct of another that was done in
contravention of a conduct provision may
recover the amount of the loss or damage by
15 action against that other person or against
any person involved in the contravention.
(2) An action under sub-section (1) may be
commenced at any time within 3 years after
the date on which the cause of action
20 accrued.
(3) A reference in sub-section (1) to a person
involved in a contravention of a conduct
provision is a reference to a person who--
(a) has aided, abetted, counselled or
25 procured the contravention; or
(b) has induced, whether by threats or
promises or otherwise, the
contravention; or
(c) has been in any way, directly or
30 indirectly, knowingly concerned in, or
party to the contravention; or
(d) has conspired with others to effect the
contravention.
48ZP. Declaratory relief
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(1) The Supreme Court, on an application by a
person shall, by order, declare whether or not
the person to which the application relates
has contravened a regulatory provision or
5 conduct provision.
(2) An application under sub-section (1) may be
made subject to and in accordance with the
Access Code--
(a) in the case of a regulatory provision or
10 conduct provision relating to a
transmission pipeline or a service
provider of a transmission pipeline, by
the ACCC;
(b) in the case of a regulatory provision or
15 conduct provision relating to a
distribution pipeline or a service
provider of a distribution pipeline, by
ORG;
(c) in the case of any conduct provision, by
20 any person other than the ACCC or
ORG (except as provided in paragraphs
(a) and (b)).
(3) If the order declares the person to have
contravened a regulatory provision or
25 conduct provision, the order may include one
or more of the following--
(a) a requirement that the person cease,
within a specified period, the act,
activity or practice constituting the
30 contravention;
(b) a requirement that the person take such
action, or adopt such practice, as the
Court requires for remedying the
contravention or preventing a
35 recurrence of the contravention;
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(c) a requirement that the person
implement a specified program for
compliance with the Access Code.
Division 4--Administrative Appeals
5 48ZQ. Application for review
(1) A person adversely affected by a decision to
which this section applies may appeal
against the decision in accordance with this
section.
10 (2) Notice of appeal must be lodged with ORG
within 14 days after the decision is made.
(3) The appeal must be heard by an appeal
panel--
(a) consisting of 3 persons appointed by
15 the Minister administering the Office of
the Regulator-General Act 1994; and
(b) constituted in accordance with section
38(2) of that Act.
(4) Section 38(5), (6) and (7) of, and the
20 Regulations made under, the Office of the
Regulator-General Act 1994 apply in
relation to an appeal under this section.
(5) The appeal panel must make its
determination on the appeal within 90 days
25 after the notice of appeal was lodged.
(6) The appeal panel may extend, or further
extend, the period referred to in sub-section
(5) by a period of 30 days if it considers that
the matter cannot be dealt with properly
30 without the extension either because of its
complexity or because of other special
circumstances.
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(7) If the appeal panel extends the period, it
must, before the end of the period, notify the
applicant of the extension and the reasons for
it.
5 (8) An application under this section--
(a) that relates to a decision under the
Access Code referred to in sub-section
(15)(b) or section 48ZR(1) does not
operate to stay the decision;
10 (b) in any other case, operates to stay the
decision unless the appeal panel
otherwise orders.
(9) On the application of a party to the
proceedings under this section, the appeal
15 panel may conduct the proceedings in the
absence of the public.
(10) The appeal panel may require the Regulator
to give information and other assistance, and
to make reports, as specified by the appeal
20 panel.
(11) In proceedings under this section, the appeal
panel may make an order affirming, or
setting aside or varying immediately or as
from a specified future date, the decision to
25 which the proceedings relate and, for the
purposes of the appeal, may exercise the
same powers with respect to the subject
matter of the decision as may be exercised
with respect to that subject matter by the
30 person who made the decision.
(12) The appeal panel may make such orders (if
any) as to costs in respect of a proceeding as
it thinks fit.
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(13) The appeal panel may refuse to hear an
appeal against a decision if it considers that
the appeal is trivial or vexatious.
(14) A determination by the appeal panel on the
5 appeal has the same effect as if it were made
by the person who made the decision.
(15) This section applies to a decision--
(a) to add to, or to waive, a requirement
under the Access Code that a service
10 provider be a body corporate or
statutory authority or not be a producer,
purchaser or seller of natural gas or
relating to the separation of certain
activities of a service provider; or
15 (b) not to approve a contract, arrangement
or understanding between a service
provider and an associate of a service
provider; or
(c) relating to any other matter that, under
20 the Access Code, is a decision to which
this section applies.
48ZR. Merits review of access arrangements
(1) If the Regulator--
(a) drafts and approves an access
25 arrangement; or
(b) drafts and approves revisions of an
access arrangement--
in place of an access arrangement or
revisions submitted for approval by a service
30 provider, the service provider or a person
who made a submission to the Regulator on
the access arrangement or revisions
submitted by the service provider and whose
interests are adversely affected by the
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decision of the Regulator may appeal against
the decision in accordance with this section.
(2) Notice of an appeal--
(a) must be lodged with ORG within 14
5 days after the decision is made; and
(b) must give details of the grounds for the
appeal.
(3) An appeal under this section--
(a) may be made only on the grounds--
10 (i) of an error in the Regulator's
finding of facts; or
(ii) that the exercise of the Regulator's
discretion was incorrect or was
unreasonable having regard to all
15 the circumstances; or
(iii) that the occasion for exercising
the discretion did not arise; and
(b) may not raise any matter that was not
raised in submissions to the Regulator
20 before the decision was made.
(4) In hearing an appeal under this section, the
appeal panel may give directions to the
parties excluding from the review specified
facts, findings, matters or actions that the
25 appeal panel considers should be excluded
having regard to--
(a) the likelihood of the decision being
varied or set aside on account of those
facts, findings, matters or actions;
30 (b) the significance to the parties of those
facts, findings, matters or actions;
(c) the amount of money involved;
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(d) any other matters that the appeal panel
considers relevant.
(5) The appeal panel, in hearing an appeal
against a decision under this section, must
5 not consider any matter other than the notice
of appeal, the decision of the Regulator, the
written record of the decisions and any
written reasons, written submissions made
to, or reports relied on by, the Regulator
10 before the decision was made and the
transcript (if any) of any hearing conducted
by the Regulator.
(6) Except as otherwise provided in this section,
section 48ZQ (except sub-sections (1) and
15 (15)) applies to an appeal under this section.
Division 5--General
48ZS. Preventing or hindering access
(1) A service provider or a person who is a party
to an agreement with a service provider
20 relating to a service provided by means of a
pipeline or, as the result of an arbitration, is
entitled to such a service, or an associate of a
service provider or such a person must not
engage in conduct for the purpose of
25 preventing or hindering the access of another
person to a service provided by means of a
pipeline that, under the Access Code, is a
pipeline in relation to which an access
arrangement is required.
30 (2) For the purposes of sub-section (1), a person
is deemed to engage in conduct for a
particular purpose if--
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(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
5 purpose.
(3) A person may be taken to have engaged in
conduct for the purpose referred to in sub-
section (1) even though, after all the
evidence has been considered, the existence
10 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) Sub-section (3) does not limit the manner in
15 which the purpose of a person may be
established for the purpose of sub-section
(1).
(5) In this section--
(a) a reference to engaging in conduct is a
20 reference to doing or refusing to do any
act, including refusing to supply a
service or, without reasonable grounds,
limiting or disrupting a service, or
making, or giving effect to, a provision
25 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
30 includes a reference to--
(i) refraining (otherwise than
inadvertently) from doing that act;
or
(ii) making it known that that act will
35 not be done.
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(6) Sub-section (1) does not apply to conduct
engaged in in accordance with an agreement
if the agreement was in force on 30 March
1995.
5 (7) In this section--
"associate" in relation to a person, has the
meaning it would have under Division
2 of Part 1.2 of the Corporations Law if
sections 13, 14, 16(2) and 17 of that
10 Law were repealed.
48ZT. Power to obtain information and
documents
(1) If a Regulator has reason to believe that a
person has information or a document that
15 may assist the Regulator in the performance
of any of the Regulator's prescribed duties
under this Part, the Regulator may require
the person to give the Regulator the
information or a copy of the document.
20 (2) A requirement must be made in a written
notice that identifies the information or
document and that specifies--
(a) by when the requirement must be
complied with; and
25 (b) in what form the information or copy of
the document is to be given to the
Regulator.
(3) The notice must also state that the
requirement is made under this section and
30 must include a copy of this section.
(4) A person must not, without lawful excuse,
fail to comply with any requirement made
under this section in a notice given to the
person.
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Penalty: 100 penalty units or imprisonment
for 2 years.
(5) If the person is a natural person, it is a lawful
excuse for the purpose of sub-section (4) that
5 compliance may tend to incriminate the
person or make the person liable to a penalty
for any other offence.
(6) A person must not, in purported compliance
with a requirement made under this section,
10 knowingly give the Regulator information
that is false or misleading.
Penalty: 100 penalty units or imprisonment
for 2 years.
(7) A person must not--
15 (a) threaten, intimidate or coerce another
person; or
(b) take, threaten to take, incite or be
involved in any action that causes
another person to suffer any loss, injury
20 or disadvantage--
because that other person complied, or
intends to comply, with a requirement made
under this section.
Penalty: 100 penalty units or imprisonment
25 for 2 years.
(8) A person is not liable in any way for any
loss, damage or injury suffered by another
person because of the giving in good faith of
a document or information to the Regulator
30 under this section.
(9) In this section--
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"prescribed duty" means--
(a) deciding whether to approve an
access arrangement under the
Access Code;
5 (b) deciding whether to approve
changes to an access arrangement
under the Access Code;
(c) deciding whether to approve an
associate contract within the
10 meaning of the Access Code;
(d) monitoring compliance with the
Access Code.
48ZU. Restriction on disclosure of confidential
information
15 (1) This section applies if information or a
document is given to the Regulator under
section 48ZT and, at the time it is given, the
person giving it states that it is of a
confidential or commercially-sensitive
20 nature.
(2) Except as otherwise provided in the Access
Code, the Regulator must not disclose the
information or the contents of the document
to any person unless--
25 (a) the Regulator is of the opinion--
(i) that the disclosure of the
information or document would
not cause detriment to the person
supplying it or to the person from
30 whom that person received it; or
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(ii) that, although the disclosure of the
information or document would
cause detriment to such a person,
the public benefit in disclosing it
5 outweighs that detriment; and
(b) the Regulator gives the person who
supplied the information or document a
written notice--
(i) stating that the Regulator wishes
10 to disclose the information or
contents of the document,
specifying the nature of the
intended disclosure and setting out
detailed reasons why the
15 Regulator wishes to make the
disclosure; and
(ii) stating that the Regulator is of the
opinion required by paragraph (a)
and setting out detailed reasons
20 why it is of that opinion; and
(iii) setting out a copy of this section
and section 48ZV; and
(c) if the Regulator is aware that the person
who supplied the information or
25 document in turn received the
information or document from another
person and is aware of that other
person's identity and address, the
Regulator gives that other person a
30 written notice--
(i) containing the details required by
paragraph (b); and
(ii) stating that the Regulator is of the
opinion required by paragraph (a)
35 in relation to that other person and
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setting out detailed reasons why it
is of that opinion; and
(iii) setting out a copy of this section
and section 48ZV; and
5 (d) if the Regulator is the ACCC and the
information or document is or includes
personal information within the
meaning of the Privacy Act 1988 of the
Commonwealth, the person to whom it
10 is disclosed undertakes to comply with
the Information Privacy Principles set
out in section 14 of that Act in respect
of the information or document; and
(e) an application for review is not lodged
15 in respect of any notice given under
paragraph (b) or (c) within the time
permitted by section 48ZV(3).
(3) Sub-section (2) does not prevent the
Regulator--
20 (a) from disclosing information or the
contents of a document to a member of
the staff of the Regulator employed or
engaged for the purposes of this Part or
to the other Regulator; or
25 (b) from using information or a document
for the purposes of civil or criminal
proceedings; or
(c) from supplying the information or
document to the member of an appeal
30 panel hearing an appeal in relation to
the information or document.
(4) If a notice of appeal under this Division is
withdrawn or, as a result of the hearing of an
appeal under this Division, a decision of the
35 Regulator is affirmed, the Regulator may
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disclose any information, or the contents of
any document, that was the subject of the
appeal in the manner set out in the notice
given under sub-section (2)(b) or (c).
5 (5) If, as a result of the hearing of an appeal
under this Division, a decision of the
Regulator is varied or set aside, the
Regulator may disclose anything that the
appeal panel permits the Regulator to
10 disclose under section 48ZV(5)(b) in the
manner specified by the appeal panel.
(6) For the purposes of this section, the
disclosure of anything that is already in the
public domain at the time the Regulator
15 wishes to disclose it cannot cause detriment
to any person referred to in sub-section
(2)(b) or (c).
48ZV. Appeal against disclosure notice
(1) A person who is given a notice under section
20 48Z U(2)(b) or (c) and who is aggrieved by a
decision of the Regulator to disclose
information or the contents of a document
may appeal against the decision in
accordance with this section.
25 (2) An appeal may only be made on the ground
that--
(a) the decision was not made in
accordance with law; or
(b) the decision is unreasonable having
30 regard to all relevant circumstances.
(3) The person must lodge notice of the appeal
with ORG within 7 working days after the
person is given the notice.
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(4) On the hearing of an appeal against a
decision, the Regulator bears the onus of
establishing that--
(a) the decision was made in accordance
5 with law; and
(b) the decision is reasonable having regard
to all relevant circumstances.
(5) In granting an appeal under this section the
appeal panel may--
10 (a) forbid disclosure by the Regulator of
the information or document that is the
subject of the appeal; or
(b) restrict the intended disclosure by the
Regulator of the information or
15 document within limits specified by the
appeal panel.
(6) Except as otherwise provided in this section,
section 48ZQ (except sub-sections (1), (2),
(8) and (15)) applies to an appeal under this
20 section.'.
18. New section 50 substituted
For section 50 of the Principal Act substitute--
"50. Agreement for operation of pipelines
(1) A gas company may enter into an agreement
25 with one or more other gas companies
relating to such pipelines owned by any one
or more of them as are specified in the
agreement, being an agreement relating to--
(a) the operation, use and construction of
30 the pipelines; and
(b) the exercise of such rights, and
compliance with such obligations, in
respect of that operation, use or
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construction as the owner of the
pipelines is entitled to exercise or
required to comply with.
(2) If an agreement under sub-section (1) is in
5 force in respect of a pipeline owned by a gas
company--
(a) any permits or licences held by the gas
company under the Pipelines Act 1967
for the pipeline are deemed to confer
10 the same rights and obligations on the
other gas company as on the gas
company that is the owner of the
pipeline; and
(b) subject to paragraph (a), nothing in this
15 section affects the operation of the
Pipelines Act 1967 in relation to the
pipeline.
(3) If an agreement is entered into under sub-
section (1), the parties to the agreement must
20 ensure that a copy of the agreement is given
to the Minister administering the Pipelines
Act 1967.
(4) For the purposes of the Pipelines Act 1967,
a gas company on which rights and
25 obligations are conferred under this section
is deemed to be the holder of a permit or
licence, as the case requires.".
19. Amendment of sections 51 and 51A
(1) In section 51 of the Principal Act, for sub-section
30 (1) substitute--
"(1) A gas transmission company or a gas
distribution company may recommend to the
Minister for compulsory acquisition any land
required by the company for or in connection
35 with the construction or operation of a
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transmission pipeline or distribution
pipeline.".
(2) In section 51(2) of the Principal Act, for
paragraph (b) substitute--
5 "(b) the Minister is the Authority".
(3) After section 51(2) of the Principal Act insert--
"(3) Despite anything to the contrary in the Land
Acquisition and Compensation Act 1986,
section 109(2) of that Act does not apply to
10 land acquired in accordance with this
section.
(4) Despite the amendment of this section by the
Gas Industry (Further Amendment) Act
1997, this section, as in force before the
15 commencement of section 19 of that Act,
continues to apply to a compulsory
acquisition of land by a gas company if a
notice of intention to acquire the land was
given by the gas company before that
20 commencement.".
(4) In section 51A(4) of the Principal Act, for the
definition of "person to which this section applies"
substitute--
' "person to which this section applies" means a
25 gas transmission company or a gas
distribution company.'.
20. Rateability of property of public gas companies
In section 52 of the Principal Act, before "gas
company" insert "public".
30 21. Amendment of section 53
(1) In section 53 of the Principal Act for "gas
company" (wherever occurring) substitute "gas
distribution company or gas transmission
company".
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(2) After 53(4) of the Principal Act insert--
"(5) This section applies subject to any land
access code applying in relation to the
exercise of powers under this section issued
5 by ORG under the Office of the Regulator-
General Act 1994.".
22. Amendment of section 54
(1) In section 54 of the Principal Act for "gas
company" (wherever occurring) substitute "gas
10 distribution company or gas transmission
company".
(2) After section 54(4) of the Principal Act insert--
"(5) This section applies subject to any land
access code applying in relation to the
15 exercise of powers under this section issued
by ORG under the Office of the Regulator-
General Act 1994.".
23. New section 57 substituted
For section 57 of the Principal Act substitute--
20 "57. Obstruction of gas company
A person must not obstruct, hinder or
interfere with a gas company or the board or
an officer or employee of a gas company or a
person acting under the authority of a gas
25 company in the entry on any premises or in
the performance of anything which the gas
company or the board, officer, employee or
person is respectively empowered or
required to do by or under this Act or by or
30 under a licence.
Penalty: 10 penalty units.".
24. Amendment of Principal Act
In the Principal Act--
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(a) in section 58(1)(a) and (b) for "GTC"
substitute "a gas transmission company";
(b) in section 58(1)(e) for "GTC" (where first
occurring) substitute "a gas transmission
5 company";
(c) in section 58(1)(e) for "GTC" (where
secondly occurring) substitute "the gas
transmission company";
(d) in section 58(2) for "GTC" (where first
10 occurring) substitute "a gas transmission
company";
(e) in section 58(2) for "GTC" (where secondly
occurring) substitute "the gas transmission
company";
15 (f) in section 59(1)(a) and (b) for "GASCOR"
substitute "a gas distribution company";
(g) in section 59(1)(d), for "GASCOR"
substitute "a gas company";
(h) in section 59(1)(e) for "GASCOR" (where
20 twice occurring) substitute "a gas retailer";
(i) in section 59(1)(f), for "GASCOR"
substitute "a gas company";
(j) in section 59(2) for "GASCOR" (where first
occurring) substitute "a gas company";
25 (k) in section 59(2) for "the GASCOR"
substitute "the gas company";
(l) in section 59(3) for "GASCOR" substitute
"the gas company";
(m) in section 59(4) for paragraph (c)
30 substitute--
"(c) abstracting gas of a gas company";
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(n) in section 60 for "GASCOR" (where first
occurring) substitute "a gas company";
(o) in section 60 for "GASCOR" (where
secondly occurring) substitute "the gas
5 company".
25. New section 60A inserted
In Part 6 of the Principal Act, before section 61
insert--
"60A. Making of easements in sub-divisions
10 (1) If a proposal for sub-division or
consolidation of land is referred to a gas
company under the Planning and
Environment Act 1987, the gas company
may require easements for the use of the
15 company for any one or more of the
purposes set out in Schedule 1A.
(2) The creation of an easement for a purpose set
out in Schedule 1A gives to the gas company
the rights specified in relation to an easement
20 created for that purpose, subject to any land
access code applying in relation to the
exercise of those rights issued by ORG under
the Office of the Regulator-General Act
1994.".
25 26. Amendment of section 61
(1) In section 61(1)(a) of the Principal Act for "or
another gas company" substitute ", GASCOR or
GTC".
(2) In section 61(1)(b) of the Principal Act, after
30 "functions" insert "or powers".
27. Amendment of Part 6B
(1) In section 62M of the Principal Act--
(a) in the definition of "gas supply contract"--
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(i) in paragraph (a) after "1996" insert "or
a new arrangement";
(ii) in paragraph (b) after "variation to the
contract" insert "or new arrangement";
5 (iii) in paragraph (c) after "under the
contract" insert "or new arrangement";
(iv) in paragraph (c) after "variation to that
contract" insert "or new arrangement";
(b) after the definition of "gas supply contract"
10 insert--
' "new arrangement" means a contract or
arrangement--
(a) for the supply of gas by GASCOR
to a new retailer; or
15 (b) for the supply of gas by GASCOR
to customers by a new retailer as
GASCOR's agent--
being a contract or arrangement made
on or after 1 December 1997;
20 "new retailer" means--
(a) Ikon (Gas) Pty Ltd A.C.N.
079 089 553;
(b) Kinetik (Gas) Pty Ltd A.C.N.
079 089 188;
25 (c) Energy 21 (Gas) Pty Ltd A.C.N.
079 089 213;';
(c) for the definition of "specified acquisition
exclusivity provision" substitute--
' "specified acquisition exclusivity
30 provision", in relation to a gas supply
contract, means a provision that
comprises or includes a condition,
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whether direct or indirect and whether
having legal or equitable force or not,
that--
(a) GASCOR will not, or will not
5 except to a limited extent, acquire
gas directly or indirectly from a
person who is or is likely to be or
would be but for that provision, a
competitor of BHP or a
10 competitor of Esso or a competitor
of a body corporate related to
either of them; or
(b) a new retailer will not, or will not
except to a limited extent, acquire
15 gas directly or indirectly from a
person who is or is likely to be or
would be but for that provision, a
competitor of GASCOR or of a
body corporate related to
20 GASCOR;';
(d) in the definition of "specified exclusionary
provision"--
(i) in paragraph (a) after "GASCOR"
insert "or a new retailer";
25 (ii) in paragraph (b) after "conditions"
insert "or by GASCOR to or through
the agency of a new retailer or to or
through the agency of a new retailer in
particular circumstances or on
30 particular conditions";
(iii) in paragraph (c)(ii) after "GASCOR"
insert "or a new retailer";
(e) in the definition of "specified price
provision", after "GASCOR" insert "or by
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GASCOR to or through the agency of more
than one new retailer";
(f) in the definition of "specified supply
exclusivity provision" after "GASCOR"
5 insert "or a new retailer (as principal or
agent)";
(g) for the definition of "specified terms
provision" substitute--
' "specified terms provision", in relation to
10 a gas supply contract means a provision
that provides for the supply of gas--
(a) by Esso and BHP jointly or either
of them severally to GASCOR; or
(b) by GASCOR to or through the
15 agency of more than one new
retailer--
upon identical or like or similar terms
and conditions that has the purpose, or
would have or would be likely to have
20 the effect, of substantially lessening
competition within the meaning of
section 45 of the Trade Practices Act
and the Competition Code;';
(h) in the definition of "specified volume
25 provision"--
(i) in paragraph (a) after "severally" insert
"or by a new retailer from GASCOR";
(ii) in paragraph (b) after "severally" insert
"or by GASCOR or to or through the
30 agency of a new retailer";
(iii) in paragraph (c) after "severally" insert
"or by a new retailer to GASCOR";
(iv) in paragraph (c) after "(as the case may
be)" insert "or the new retailer has not
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acquired or has not agreed to acquire
from GASCOR or has not supplied or
agreed to supply as GASCOR's agent".
(2) In section 62N(1) of the Principal Act, for all
5 words and expressions before paragraph (a)
substitute--
'(1) If GASCOR, Esso, BHP or a new retailer
assigns the whole or any part or any
combination of parts (not comprising the
10 whole) of its rights under a gas supply
contract to a person or to persons, a
reference to GASCOR, Esso, BHP or the
new retailer (as the case requires) in this Part
(except the definitions in this Part of "BHP",
15 "Esso", "GASCOR" or "new retailer" and
this section) shall be construed from the time
of that assignment to be--'.
(3) In section 62N of the Principal Act, in sub-section
(1)(a) and (b) and in sub-section (2) for "or BHP"
20 (wherever occurring) substitute ", BHP or the
new retailer".
(4) In the Principal Act--
(a) in section 62O for "and Esso" substitute
", Esso and the new retailers";
25 (b) in section 62P(i) after "GASCOR" insert "or
to or through the agency of a new retailer";
(c) in section 62P(i) after "each of them" insert
"or by GASCOR (as the case requires)";
(d) in section 62P(j) after "severally" insert "or
30 from GASCOR";
(e) in section 62P(j) after "GASCOR" insert "or
a new retailer (as the case requires)".
28. Amendment of Part 7
(1) In section 63(1) of the Principal Act--
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(a) in the definition of "former gas corporation
instrument", before "gas company"
(wherever occurring) insert "gas corporation
or";
5 (b) in the definition of "former gas corporation
property"--
(i) after "corporation" (where twice
occurring) insert "or gas company";
(ii) after "the State" insert "or a person or
10 persons nominated in writing by the
Minister";
(c) for the definition of "transferee"
substitute--
' "transferee", in relation to former gas
15 corporation property, means the gas
corporation, the Treasurer, the State or
a person or persons nominated in
writing by the Minister or 2 or more of
the gas corporations, the Treasurer, the
20 State and such a person or persons to
which the property has been transferred
under this Part;';
(d) in the definition of "transferor" after "the gas
corporation" insert "or gas company".
25 (2) In section 68 of the Principal Act, for sub-section
(1) substitute--
"(1) The Minister may give a direction in writing
to a gas company directing it to transfer
property, rights and liabilities of a specified
30 kind to the State or a person or persons
nominated in writing by the Minister or to
any 2 or more of the State and such a person
or persons in accordance with the direction.".
(3) In section 69 of the Principal Act--
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(a) before "gas company" (where twice
occurring) insert "gas corporation or";
(b) in paragraph (a), for all words and
expressions after "vest in a gas corporation"
5 substitute ", the State or a person or persons
nominated in writing by the Minister or in 2
or more of the gas corporations, the State
and such a person or persons in accordance
with the statement; and";
10 (b) in paragraph (b) for all words and
expressions after "of a gas corporation"
substitute ", the State or a person or persons
nominated in writing by the Minister or in 2
or more of the gas corporations, the State
15 and such a person or persons in accordance
with the statement.".
(4) In section 71(1) of the Principal Act, after
"corporation" (where twice occurring) insert "or
gas company".
20 (5) In section 72(1) of the Principal Act--
(a) after "pipeline" (where first occurring) insert
'or part of a pipeline ("the transferred
pipeline")';
(b) in paragraph (a), for "pipeline on the same
25 terms and conditions" substitute "transferred
pipeline on the same terms and conditions
(with such amendments as are necessary for
their application to the transferred pipeline)".
(6) In section 72(4)(d) of the Principal Act, for
30 "pipeline" substitute "transferred pipeline".
(7) After section 72(4) of the Principal Act insert--
"(5) Despite sub-section (4), nothing in the
Pipelines Act 1967 requires a gas company
to be the holder of a permit or licence under
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that Act by reason only of using a pipeline
that the gas company does not own or
construct.".
(8) In section 74 of the Principal Act--
5 (a) after "corporation" insert "or gas company";
(b) after "or become" insert "liabilities of".
(9) In section 80 of the Principal Act, after "gas
corporation" insert "or gas company".
(10) In section 81(2) of the Principal Act, after "a gas
10 corporation" insert "or gas company".
29. New sections 83A and 83B inserted
After section 83 of the Principal Act insert--
'83A. Further interim arrangements--
(1) At any time before 31 December 1998 each
15 transferee of former gas corporation property
("the new body")--
(a) may, subject to any agreement to the
contrary, exercise such rights and
privileges (including access to goods
20 and services) in relation to former gas
corporation property that has become
property of another transferee on or
after 1 December 1997 as are
reasonably necessary to enable the new
25 body to carry out its functions in a
manner similar to the manner in which
the transferor carried out corresponding
functions before that date; and
(b) must, subject to any agreement to the
30 contrary--
(i) permit any other transferee to
exercise such rights and privileges
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in relation to former gas
corporation property that has
become property of the new body;
and
5 (ii) make available to each other
transferee such goods and services
as are available from that former
gas corporation property--
as are reasonably necessary to enable
10 the other transferee to carry out its
functions in a manner similar to the
manner in which the transferor carried
out corresponding functions before that
date.
15 (2) A transferee must pay such reasonable
charges for the exercise of rights and
privileges under sub-section (1)(a) in respect
of former gas corporation property of
another transferee as are determined by the
20 other transferee and agreed between the
parties or, if the other transferee determines
charges and there is no agreement, as are
determined by the Minister.
83B. Agreement about certain easements
25 (1) A gas company may, subject to and in
accordance with any agreement entered into
with another gas company, exercise such
rights and privileges in respect of easements
to which the other gas company is entitled
30 and are reasonably necessary to enable the
first-mentioned gas company to carry out its
functions in a manner similar to the manner
in which GTC or GASCOR carried out
corresponding functions before 1 December
35 1997.
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(2) A gas company must pay such reasonable
charges for the exercise of the rights and
privileges under sub-section (1) in respect of
easements to which the other gas company is
5 entitled as are determined by the other gas
company and agreed by the first mentioned
gas company or, if there is no agreement, as
are determined by the Minister.'.
30. Amendment of Part 8
10 (1) In section 84 of the Principal Act, in the definition
of "transferred member", after "GTC" insert "or
of a subsidiary of GASCOR or GTC".
(2) In section 87E(2) of the Principal Act, for "trust
deed" substitute "governing rules".
15 (3) In section 87E of the Principal Act, for sub-
section (3) substitute--
"(3) The governing rules of the Gas and Fuel
Superannuation Fund are to be read and
construed as if the provisions of sections
20 87B, 87C, 87D and this section formed part
of the governing rules and, if a provision of
those sections or this section is inconsistent
with a provision of the governing rules, the
provision of this Act prevails.".
25 (4) In section 87F(4)(b) of the Principal Act, for
"successor" substitute "subsidiary or successor".
31. New Part 8A inserted
After Part 8 of the Principal Act insert--
'PART 8A--TRANSFER OF STAFF OF GASCOR
30 OR GTC
87G. Definitions
In this Part--
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"new employer", in relation to a transferred
employee, means the person by which,
by virtue of section 87J, the transferred
employee is regarded as being
5 employed with effect from the relevant
date;
"relevant date" in relation to a transferor
and a document referred to in section
87I(1), means a date fixed by the
10 Minister under sub-section 87H for the
purposes of that document;
"transferred employee" means a person
who, by virtue of section 87J, is
regarded as being employed by a new
15 employer with effect from the relevant
date;
"transferor" means GASCOR or GTC.
87H. Relevant date
The Minister may, by notice published in the
20 Government Gazette, fix a relevant date for
the purposes of a transferor and document
referred to in section 87I(1).
87I. List of staff
(1) Before the relevant date in relation to a
25 transferor, the transferor must prepare and
submit to the Minister and Treasurer a
document signed by the chief executive
officer listing officers and employees of the
transferor and specifying, in respect of each
30 such officer or employee, the person by
which he or she is to be regarded as having
been employed by virtue of section 87J with
effect from the relevant date.
(2) The document may be amended by
35 instrument signed by the chief executive
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officer and given to the Minister and
Treasurer and the amendment is to be
regarded as having effect, or having had
effect, from the relevant date.
5 (3) Nothing in this section prevents a person
listed in the document as an officer or
employee of the transferor from resigning or
being dismissed at any time before the
relevant date in accordance with the terms
10 and conditions of his or her appointment or
employment.
87J. Transfer of staff
(1) A person listed as an officer or employee of
a transferor in a document under section 87I
15 who was such an officer or employee
immediately before the relevant date in
relation to the transferor is to be regarded
as--
(a) having been employed by the new
20 employer with effect from the relevant
date; and
(b) having been so employed on the same
terms and conditions as those that
applied to the person, immediately
25 before the relevant date, as an officer or
employee of the transferor; and
(c) having accrued an entitlement to
benefits, in connection with that
employment by the new employer, that
30 is equivalent to the entitlement that the
person had accrued, as an officer or
employee of the transferor,
immediately before the relevant date.
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(2) The service of a transferred employee as an
employee of the new employer is to be
regarded for all purposes as having been
continuous with the service of the employee,
5 immediately before the relevant date, as an
officer or employee of the transferor.
(3) A transferred employee is not entitled to
receive any payment or other benefit by
reason only of having ceased to be an officer
10 or employee of the transferor because of this
Act.
(4) A certificate purporting to be signed by the
chief executive officer of the transferor
certifying that a person named in the
15 certificate was, with effect from the relevant
date, employed, by virtue of this section, by
a person named in the certificate is
admissible in evidence in any proceedings
and is conclusive proof of the matters stated
20 in it.
87K. Future terms and conditions of transferred
employees
Nothing in section 87J prevents--
(a) any of the terms and conditions of
25 employment of a transferred employee
from being altered by or under any law,
award or agreement with effect from
any time after the relevant date; or
(b) a transferred employee from resigning
30 or being dismissed at any time after the
relevant date in accordance with the
then existing terms and conditions of
his or her employment by the new
employer.
35 87L. Superannuation
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A transferred employee who, immediately
before the relevant date, was a member of
the approved superannuation fund within the
meaning of section 84--
5 (a) continues, on and after the relevant
date, to be a member of that Fund for so
long as he or she continues to be
employed by the new employer or until
otherwise ceasing to be a member as
10 provided in the governing rules of the
Fund;
(b) is not entitled to receive any payment
or other benefit by reason only of
having ceased to be an employee of the
15 transferor because of this Act, despite
any provision of the governing rules of
the Fund.'.
32. New sections 88A, 88B and 88C inserted
After section 88 of the Principal Act insert--
20 '88A. Directions to public gas companies
(1) The Treasurer and the Minister, acting
jointly, from time to time, by written notice
to the board of a public gas company (other
than a statutory gas company to which
25 section 23 applies), may give such directions
to the board as the Treasurer and Minister
thinks fit.
(2) The board of a public gas company must
comply with a direction given under this
30 section but an act or decision of the board is
not invalid merely because of a failure to
comply with such a direction.
88B. Payments in respect of financial obligations
(1) If--
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(a) an Order has been made under section
36D(1) or 36E(1) of the Treasury
Corporation of Victoria Act 1992
relating to financial obligations of a gas
5 company ("the first company"); and
(b) responsibility for those financial
obligations has become the
responsibility of a public gas company
(other than a statutory gas company)
10 ("the second company") under Part 7--
then--
(c) the second company must pay to the
Treasury Corporation of Victoria such
amounts, and at such times, as the first
15 company would have been liable to pay
in respect of those financial obligations
if the Order had not been made, except
in so far as the Corporation and the
second company otherwise agree; and
20 (d) the Corporation must pay to the second
company such amounts, and at such
times, as the first company would have
been entitled to receive in respect of
those financial obligations if the Order
25 had not been made, except in so far as
the Corporation and the second
company otherwise agree.
(2) An amount payable under sub-section (1)
may be recovered in a court of competent
30 jurisdiction as a debt due to the Treasury
Corporation of Victoria or the second
company, as the case requires.
88C. Government departments and local
authorities
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If the exercise of any rights, powers or
authorities or the discharge of any duties by
a gas company may affect the exercise of
any rights, powers or authorities or the
5 discharge of any duties by any Government
department or local authority, the gas
company shall so far as practicable confer
and co-operate with the department or local
authority.'.
10 33. Amendment of the Principal Act
In the Principal Act--
(a) in section 89, for "referred to in Schedule 2
to or in GTC and in Schedule 4 to or in
GASCOR)" substitute "in accordance with
15 Part 7)".
(b) in sections 95, 96 and 96A, before "gas
company" (wherever occurring) insert
"statutory";
(c) in section 97 for "GASCOR" (where first
20 occurring) substitute "a gas distribution
company or gas retailer";
(d) in section 97(a) for "GASCOR" substitute
"the gas distribution company or gas
retailer";
25 (e) sections 98 and 99 are repealed.
34. Amendment of section 100
(1) In section 100 of the Principal Act, for sub-section
(1) substitute--
"(1) The Treasurer may, on behalf of the
30 Government of Victoria, execute a
guarantee, on such terms and conditions as
the Treasurer determines, in favour of any
person guaranteeing the due satisfaction of
amounts that become payable by a public gas
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company under section 19(1) or 88B(1) or
because of Part 7 or of amounts that become
payable, and of other actions required to be
performed, as a result of, or in connection
5 with, the discharge of liabilities or the
performance of obligations of a public gas
company.".
(2) In section 100(3) of the Principal Act, for "gas
company or GFE Resources Limited" substitute
10 "public gas company".
35. Amendment of section 101
In section 101 of the Principal Act, after
"Commonwealth" insert "and the Competition
Code within the meaning of the Competition
15 Policy Reform (Victoria) Act 1995".
36. New section 101A inserted
After section 101 of the Principal Act insert--
"101A. Exemption from Freedom of Information
Act 1982
20 A public gas company is not, and is not
eligible to be declared to be, an agency or
prescribed authority within the meaning of
the Freedom of Information Act 1982.".
37. Regulations
25 (1) In section 102(1) of the Principal Act, paragraphs
(c), (n), (o), (p), (q), (r), (s), (t), (u), (v), and (w)
are repealed.
(2) After section 102(1) of the Principal Act insert--
"(1A) The Regulations may provide that--
30 (a) a specified regulatory provision or a
regulatory provision of a specified
class; or
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(b) a specified conduct provision or a
conduct provision of a specified class--
is, for the purposes of the MSO Rules or the
Access Code, a civil penalty provision.
5 (1B) The Regulations may prescribe, for a
contravention of a civil penalty provision, an
amount not exceeding $100 000 that a court
may determine is payable by a person who
contravenes the provision.".
10 38. New sections 104A and 104B inserted
After section 104 of the Principal Act insert--
'104A. Annual reports of GASCOR transferees
and GASCOR
(1) Despite anything to the contrary in this Act,
15 a transferee must prepare reports and
financial statements for the relevant year as
if the operations of GASCOR--
(a) for the relevant year; and
(b) associated with the property, rights and
20 liabilities of GASCOR that, as at
30 June in the relevant year, are
property and rights vested in, or
liabilities that have become liabilities of
the transferee under this Act--
25 had been operations of the transferee.
(2) GASCOR and the transferees must provide
to each other all accounting records,
documents and other information necessary
to enable the transferees to prepare reports
30 and financial statements for the year ending
30 June in the relevant year in accordance
with sub-section (1).
(3) Despite anything to the contrary in the
Financial Management Act 1994 or
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regulations under that Act, GASCOR may
prepare its reports and financial statements
for the relevant year as if the relevant date,
for the purposes of Part 7, had been 1 July in
5 the relevant year and as if the operations of a
transferee--
(a) for the relevant year; and
(b) associated with the property, rights and
liabilities of the transferee that, as at
10 30 June in the relevant year, are
property and rights vested in, or
liabilities that have become liabilities
of, the transferee under this Act--
had not been operations of GASCOR.
15 (4) A transferee must provide to GASCOR all
accounting records, documents and other
information necessary to enable GASCOR to
prepare reports and financial statements for
the relevant year in accordance with sub-
20 section (1).
(5) The Minister may, in writing given to
GASCOR and to each transferee, nominate a
financial year later than the year
commencing on 1 July 1997 for the purposes
25 of this section.
(6) In this section--
"relevant year" means the year beginning
on 1 July 1997 or, if the Minister
nominates a later year under sub-
30 section (5), that later year;
"transferee" means a gas company to which
property, rights and liabilities of
GASCOR have been transferred under
Part 7.
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104B. Annual reports of GTC transferees and
GTC
(1) Despite anything to the contrary in this Act,
a transferee must prepare reports and
5 financial statements for the relevant year as
if the operations of GTC--
(a) for the relevant year; and
(b) associated with the property, rights and
liabilities of GTC that, as at 30 June in
10 the relevant year, are property and
rights vested in, or liabilities that have
become liabilities of the transferee
under this Act--
had been operations of the transferee.
15 (2) GTC and the transferees must provide to
each other all accounting records, documents
and other information necessary to enable
the transferees to prepare reports and
financial statements for the year ending 30
20 June in the relevant year in accordance with
sub-section (1).
(3) Despite anything to the contrary in the
Financial Management Act 1994 or
regulations under that Act, GTC may prepare
25 its reports and financial statements for the
relevant year as if the relevant date, for the
purposes of Part 7, had been 1 July in the
relevant year and as if the operations of a
transferee--
30 (a) for the relevant year; and
(b) associated with the property, rights and
liabilities of the transferee that, as at
30 June in the relevant year, are
property and rights vested in, or
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liabilities that have become liabilities
of, the transferee under this Act--
had not been operations of GTC.
(4) A transferee must provide to GTC all
5 accounting records, documents and other
information necessary to enable GTC to
prepare reports and financial statements for
the relevant year in accordance with sub-
section (1).
10 (5) The Minister may, in writing given to GTC
and to each transferee, nominate a financial
year later than the year commencing on
1 July 1997 for the purposes of this section.
(6) In this section--
15 "relevant year" means the year beginning
on 1 July 1997 or, if the Minister
nominates a later year under sub-
section (5), that later year;
"transferee" means a gas company to which
20 property, rights and liabilities of GTC
have been transferred under Part 7.'.
39. New section 104C inserted
Before section 105 of the Principal Act insert--
"104C. Repeal of Public Authorities
25 (Contributions) Act 1966
(1) The Public Authorities (Contributions)
Act 1966 is repealed.
(2) GASCOR is not liable to make any
contributions that were due and unpaid under
30 the Public Authorities (Contributions) Act
1966 before its repeal by sub-section (1).".
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40. New Parts 13A and 13B inserted
After Part 13 of the Principal Act insert--
'PART 13A--TRANSFER OF CERTAIN
PROPERTY AND STAFF OF NOMINATED
5 PUBLIC GAS COMPANIES
Division 1--Definitions and applications
115A. Definitions
(1) In this Part--
"former PGC property" means property,
10 rights or liabilities of a PGC that, under
this Part, have vested in, or become
liabilities of another person;
"new employer", in relation to a transferred
PGC employee, means the person by
15 which, by virtue of section 115O, the
transferred PGC employee is regarded
as being employed with effect from the
relevant date;
"PGC" means a public gas company that is
20 nominated by the Minister under
section 115B;
"PGC instrument" means an instrument
(including a legislative instrument other
than this Act) subsisting immediately
25 before the relevant date in relation to a
PGC--
(a) to which the PGC was a party; or
(b) that was given to or in favour of
the PGC; or
30 (c) that refers to the PGC; or
(d) under which--
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(i) money is, or may become,
payable to or by the PGC; or
(ii) other property is to be, or
may become liable to be,
5 transferred to or by the PGC;
"PGC transferee", in relation to former
PGC property, means the person to
which the property has been transferred
under this Part;
10 "relevant date"--
(a) in relation to an allocation
statement or property, rights or
liabilities allocated under an
allocation statement, means the
15 date fixed by the Minister under
sub-section (2) for the purposes of
that statement;
(b) in relation to a document referred
to in section 115N(1), means a
20 date fixed by the Minister under
sub-section (2) for the purposes of
that document;
"transferred PGC employee" means a
person who, by virtue of section 115O,
25 is regarded as being employed by a new
employer with effect from the relevant
date;
"transferor company" means a public gas
company.
30 (2) The Minister may, by notice published in the
Government Gazette--
(a) fix a relevant date for the purposes of
an allocation statement under section
115C;
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(b) fix a relevant date for the purposes of a
document referred to in section
115N(1).
115B. Nomination of transferor company
5 If the Treasurer, on behalf of the State, enters
into an agreement for the sale or transfer of
property, rights and liabilities of a transferor
company, the Treasurer may nominate the
transferor company for the purpose of this
10 Part.
Division 2--Allocation of property
115C. PGC to prepare allocation statement
(1) The PGC must give to the Treasurer and the
Minister, within the period of 3 months after
15 the date on which the PGC is nominated
under section 115B or within such longer
period as the Treasurer and the Minister
approve, a statement or statements approved
by the Minister relating to the property,
20 rights and liabilities of the PGC as at a date
specified by the Minister for the purposes of
the relevant statement.
(2) A statement under this section--
(a) must allocate the property, rights and
25 liabilities of the PGC shown in the
statement to, or between, the person or
persons nominated in writing by the
Minister;
(b) must be signed by the chief executive
30 officer of the PGC.
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(3) If a statement under this section is approved
by the Treasurer and the Minister--
(a) the Treasurer and the Minister must
sign the statement; and
5 (b) the statement is an allocation statement
for the purposes of this Part.
(4) The Treasurer and the Minister may at any
time direct the PGC to amend a statement
given to them under this section as specified
10 in the direction.
(5) An allocation statement under this section
may be amended by writing signed by the
Treasurer and the Minister.
(6) A direction under sub-section (4) or an
15 amendment under sub-section (5) that would
affect a person or persons nominated by the
Minister under sub-section (1) must not be
given or made unless that person or those
persons are, or are wholly owned by, the
20 State or a statutory authority or have
consented in writing to the direction or
amendment.
(7) In this section, "statement" and "allocation
statement" include a statement or allocation
25 statement amended in accordance with this
section.
115D. Certificate of chief executive officer
(1) A certificate signed by the chief executive
officer of the PGC certifying that property,
30 rights or liabilities of the PGC specified in
the certificate have been allocated under the
allocation statement to a person so specified
is, unless revoked under sub-section (2),
conclusive evidence--
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(a) that the property, rights or liabilities
have been so allocated; and
(b) that the property, rights or liabilities
vested in or became the property, rights
5 or liabilities of the person on the
relevant date.
(2) If the Treasurer and the Minister so direct
the chief executive officer of the PGC in
writing, the chief executive officer of the
10 PGC must revoke a certificate given under
sub-section (1) by issuing another certificate
or certificates in place of the first certificate.
(3) The chief executive officer--
(a) must keep a register of certificates
15 issued under this section; and
(b) must make the register reasonably
available for inspection by an interested
person.
Division 3--Transfer of property
20 115E. Property transferred
(1) On the relevant date--
(a) all property and rights of the PGC,
wherever located, that are allocated
under an allocation statement relating
25 to the PGC to a person, or any 2 or
more persons, vest in that person or
persons; and
(b) all liabilities of the PGC, wherever
located, that are allocated under an
30 allocation statement relating to the PGC
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to a person, or to any 2 or more
persons, become liabilities of that
person or persons.
(2) If, in an agreement for the sale by the PGC
5 of the business or assets of the PGC, a value
is ascribed to property, rights or liabilities
that are allocated to a PGC transferee under
an allocation statement, that value is deemed
to be consideration paid to, or received by,
10 the PGC.
115F. Allocation of property etc. subject to
encumbrances
Unless an allocation statement under this
Part otherwise provides, where, under this
15 Part--
(a) property and rights vest in; or
(b) liabilities become liabilities of--
a person or 2 or more persons--
(c) the property and rights so vested are
20 subject to the encumbrances (if any) to
which they were subject immediately
before so vesting; and
(d) the rights to which the PGC was
entitled in respect of those liabilities
25 immediately before they ceased to be
liabilities of the PGC vest in the person
or persons.
115G. Substitution of party to agreement
If, under an allocation statement, the rights
30 and liabilities of the PGC under an
agreement are allocated to a person--
(a) the person becomes, on the relevant
date, a party to the agreement in place
of the PGC; and
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(b) on and after the relevant date, the
agreement has effect as if the person
had always been a party to the
agreement.
5 115H. PGC instruments
Each PGC instrument relating to former
PGC property continues to have effect
according to its tenor on and after the
relevant date as if a reference in the
10 instrument to the PGC were a reference to
the PGC transferee.
115I. Proceedings
If, immediately before the relevant date,
proceedings relating to former PGC property
15 (including arbitration proceedings) to which
the PGC was a party were pending or
existing in any court or tribunal, then, on and
after that date, the PGC transferee is
substituted for the PGC as a party to the
20 proceedings and has the same rights in the
proceedings as the PGC had.
115J. Interests in land
Without prejudice to the generality of this
Part and despite anything to the contrary in
25 any other Act or law, if, immediately before
the relevant date, the PGC is, in relation to
former property, the registered proprietor of
an interest in land under the Transfer of
Land Act 1958, then on and after that
30 date--
(a) the PGC transferee is to be taken to be
the registered proprietor of that interest
in land; and
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(b) the PGC transferee has the same rights
and remedies in respect of that interest
as the PGC had.
115K. Amendment of Register
5 (1) The Registrar of Titles, on being requested to
do so and on delivery of any relevant
certificate of title or instrument and
certificate of the chief executive officer of
the PGC, must make any amendments in the
10 Register that are necessary because of the
operation of this Part.
(2) The Registrar-General must make all entries
on the records of enrolment of any Crown
grant and on any memorial relating to land
15 that are necessary because of the operation
of this Part.
(3) If any land allocated under an allocation
statement under this Part is not Crown land
and is not under the operation of the
20 Transfer of Land Act 1958, the PGC
transferee concerned must, as soon as
practicable after the land vests in accordance
with the allocation statement, cause a
memorial of the certificate of the
25 Administrator (that complies with Part I of
the Property Law Act 1958) to be delivered
to the office of the Registrar-General and, for
the purposes of that Part, that certificate must
be taken to be an instrument affecting land.
30 115L. Evidence
(1) Documentary or other evidence that would
have been admissible for or against the
interests of the PGC in relation to former
PGC property if this Part had not been
35 enacted, is admissible for or against the
interests of the PGC transferee.
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(2) Division 3A of Part III of the Evidence Act
1958 continues to apply with respect to the
books of account of the PGC and to entries
made in those books of account before the
5 relevant date, whether or not they relate to
former PGC property.
(3) In sub-section (2), "books of account" has
the same meaning as in Division 3A of Part
III of the Evidence Act 1958.
10 115M. Validity of things done under this Part
(1) Nothing effected by this Part or done or
suffered under this Part or the cessation of
carrying on business by a PGC--
(a) is to be regarded as placing the PGC,
15 the State, a Minister or another person
in breach of contract or confidence or
as otherwise making any of them guilty
of a civil wrong; or
(b) is to be regarded as placing any of them
20 in breach of or as constituting a default
under any Act or other law or any
provision in any agreement,
arrangement or understanding
including, without limiting the
25 generality of the foregoing, any
provision prohibiting, restricting or
regulating the assignment or transfer of
any property or the disclosure of any
information; or
30 (c) is to be regarded as fulfilling any
condition which allows a person to
exercise a right or remedy in respect of
or to terminate any agreement or
obligation; or
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(d) is to be regarded as giving rise to any
remedy for a party to a contract or an
instrument or as causing or permitting
the termination of any contract or
5 instrument because of a change in the
beneficial or legal ownership of any
asset, right or liability; or
(e) is to be regarded as causing any
contract or instrument to be void or
10 otherwise unenforceable; or
(f) is to be regarded as frustrating any
contract; or
(g) releases any surety or other obligee
wholly or in part from any obligation.
15 (2) The validity of any act or transaction of a
PGC must not be called in question in any
proceedings on the ground that any provision
of this Act had not been complied with.
Division 4--Staff
20 115N. List of PGC staff
(1) Before the relevant date in relation to a PGC,
the PGC must prepare and submit to the
Minister and Treasurer a document signed by
the chief executive officer listing officers
25 and employees of the PGC and specifying, in
respect of each such officer or employee, the
person by which he or she is to be regarded
as having been employed by virtue of section
115O with effect from the relevant date.
30 (2) The document may be amended by
instrument signed by the chief executive
officer and given to the Minister and
Treasurer and the amendment is to be
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regarded as having effect, or having had
effect, from the relevant date.
(3) Nothing in this section prevents a person
listed in the document as an officer or
5 employee of the PGC from resigning or
being dismissed at any time before the
relevant date in accordance with the terms
and conditions of his or her appointment or
employment.
10 115O. Transfer of PGC staff
(1) A person listed as an officer or employee of
a PGC in a document under section 115N
who was such an officer or employee
immediately before the relevant date in
15 relation to the PGC is to be regarded as--
(a) having been employed by the new
employer with effect from the relevant
date; and
(b) having been so employed on the same
20 terms and conditions as those that
applied to the person, immediately
before the relevant date, as an officer or
employee of the PGC; and
(c) having accrued an entitlement to
25 benefits, in connection with that
employment by the new employer, that
is equivalent to the entitlement that the
person had accrued, as an officer or
employee of the PGC, immediately
30 before the relevant date.
(2) The service of a transferred PGC employee
as an employee of the new employer is to be
regarded for all purposes as having been
continuous with the service of the employee,
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immediately before the relevant date, as an
officer or employee of the PGC.
(3) A transferred PGC employee is not entitled
to receive any payment or other benefit by
5 reason only of having ceased to be an officer
or employee of the PGC because of this Act.
(4) A certificate purporting to be signed by the
Administrator certifying that a person named
in the certificate was, with effect from the
10 relevant date employed, by virtue of this
section, by a person named in the certificate
is admissible in evidence in any proceedings
and is conclusive proof of the matters stated
in it.
15 115P. Future terms and conditions of transferred
employees
Nothing in section 115O prevents--
(a) any of the terms and conditions of
employment of a transferred PGC
20 employee from being altered by or
under any law, award or agreement
with effect from any time after the
relevant date; or
(b) a transferred PGC employee from
25 resigning or being dismissed at any
time after the relevant date in
accordance with the then existing terms
and conditions of his or her
employment by the new employer.
30 Division 5--Permits and licences under
Pipelines Act 1967
115Q. Pipelines
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(1) If former PGC property includes a pipeline
or part of a pipeline ("the transferred
pipeline") to which a permit or licence under
the Pipelines Act 1967 applies, on the
5 relevant date in relation to the relevant
allocation statement--
(a) the PGC transferee is deemed to be the
holder of a permit under that Act to
own and use, and a licence under that
10 Act to operate, the transferred pipeline
on the same terms and conditions (with
such amendments as are necessary for
their application to the transferred
pipeline) and for the same period as
15 those applicable to the PGC; and
(b) any permits or licences relating wholly
or in part to the transferred pipeline
held by the PGC under that Act are, by
force of this section, varied or cancelled
20 to the extent necessary as a result of
paragraph (a).
(2) As soon as practicable after the relevant date
in relation to the relevant allocation
statement, the Minister--
25 (a) must issue to the PGC transferee permit
and licence documents that comply
with sub-section (1)(a); and
(b) must vary or cancel permit and licence
documents, or issue permit and licence
30 documents, so that the PGC has permit
and licence documents that comply
with sub-section (1).
(3) Subject to sub-section (4), the Pipelines Act
1967 does not apply to--
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(a) a permit or licence referred to in sub-
section (1)(a); or
(b) the issue, under sub-section (2), of a
permit or licence document; or
5 (c) the cancellation of a permit or licence
by force of sub-section (1)(b).
(4) The Pipelines Act 1967 applies on and from
the relevant date to--
(a) the renewal, transfer, amendment or
10 cancellation of a permit or licence
referred to in sub-section (1)(a), and to
any new permit or licence issued on or
after the expiry of that permit or
licence; and
15 (b) the renewal, transfer, amendment or
cancellation of a permit or licence
referred to in sub-section (3) and to any
new permit or licence issued on or after
the expiry of that permit or licence; and
20 (c) the transfer of an interest in the
transferred pipeline, other than a
transfer under this Part; and
(d) the construction, reconstruction,
alteration, repair, maintenance,
25 operation and use of the transferred
pipeline.
(5) Despite sub-section (4), nothing in the
Pipelines Act 1967 requires a gas company
to be the holder of a permit or licence under
30 that Act by reason only of using a pipeline
that the gas company does not own or
construct.
PART 13B--PROVISIONS RELATING TO
PRIVATISATION
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115R. Treasurer may be party to agreement for
sale
The Treasurer, on behalf of the Government
of Victoria, may be a party to an agreement
5 for the sale or disposal of shares in, or
property of, a public gas company, being a
sale or disposal on such terms and conditions
as the Treasurer approves.
115S. Freedom of Information Act 1982
10 The Freedom of Information Act 1982
does not apply to a document to the extent to
which the document discloses information
about--
(a) the identity of any person expressing an
15 interest in purchasing, or making an
offer to purchase, any shares in a public
gas company or any property or rights
of such a company; or
(b) the terms of any expression of interest
20 or offer referred to in paragraph (a).'.
41. New Schedule 1A inserted
After Schedule 1 to the Principal Act insert--
"SCHEDULE 1A
Easements for use of gas company
25 The right of the gas company and its successors and
transferees and its and their contractors, servants or
agents--
(a) to enter at any time the land to which the easement
applies, with or without vehicles or equipment;
30 (b) to use the land for the purposes of, or incidental to,
the conveyance of gas, including the laying down or
construction on the land of pipelines;
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(c) to keep the land free from buildings or obstructions
(including trees);
(d) to erect and maintain gates in any fences;
(e) to inspect, maintain, alter, renew or remove pipelines
5 or works on the land--
free from any interference to the surface of the land to a
depth greater than 0·3 metres without the prior written
consent of the gas company.".
_______________
10
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PART 3--AMENDMENT OF OTHER ACTS
42. Borrowing and Investment Powers Act 1987
(1) In Schedule 1 to the Borrowing and Investment
Powers Act 1987, before item 20A insert--
5 "20AB. VENCorp 5, 8, 9, 10, 11, 11AA,
14, 15, 20, 20A and 21.".
(2) In Schedule 1 to the Borrowing and Investment
Powers Act 1987, omit item 26.
43. Country Fire Authority Act 1958
10 In section 32(2) of the Country Fire Authority
Act 1958, for "gas company within the meaning
of the Gas Industry Act 1994 or person
authorised under section 40 of the Gas Industry
Act 1994" substitute "gas distribution company
15 or gas transmission company within the meaning
of the Gas Industry Act 1994".
44. Electricity Industry (Further Miscellaneous
Amendment) Act 1997
In the Electricity Industry (Further
20 Miscellaneous Amendment) Act 1997--
(a) in section 16--
(i) for "VENCORP" substitute
"VENCorp";
(ii) for "Part 1A" substitute "Part 2";
25 (b) in section 17, for "VENCORP" substitute
"VENCorp";
(c) in section 18(b), for "Part 1A" substitute
"Part 2";
(d) in section 19--
30 (i) for "8C" substitute "16C";
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(ii) for "8CA" substitute "16CA";
(iii) for "VENCORP" substitute
"VENCorp";
(e) in section 22, for paragraph (b) substitute--
5 "(b) sections 23 to 25 are repealed;";
(f) in section 25, for "References" substitute
"Reference";
(g) in section 29, for "substitute" substitute
"insert".
10 45. Essential Services Act 1958
In section 3 of the Essential Services Act 1958,
in the definition of "essential service", for "the
Gas Transmission Corporation, GASCOR"
substitute "gas company within the meaning of
15 the Gas Industry Act 1994".
46. Historic Buildings Act 1981
In section 3 of the Historic Buildings Act 1981,
in the definition of "public authority", for "the Gas
Transmission Corporation, GASCOR" substitute
20 "a public gas company within the meaning of the
Gas Industry Act 1994".
47. Melbourne City Link Act 1995
In section 3 of the Melbourne City Link Act
1995, in the definition of "public authority", for
25 paragraphs (c) and (d) substitute--
"(c) a public gas company within the meaning of
the Gas Industry Act 1994;".
48. Pipelines Act 1967
After section 17(5) of the Pipelines Act 1967
30 insert--
"(6) Sub-sections (3) and (4) do not apply in
relation to the conveyance of gas through a
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pipeline if the Gas Industry Act 1994
applies in relation to third party access to
that pipeline.".
49. Public Authorities (Dividends) Act 1983
5 In section 4(1)(ab) of the Public Authorities
(Dividends) Act 1983, in the definition of "public
authority", after paragraph (ab) insert--
"(ac) VENCorp;".
50. State Electricity Commission Act 1958
10 In section 3(1) of the State Electricity
Commission Act 1958, for the definition of "gas
company" substitute--
' "gas company" means a public gas company
within the meaning of the Gas Industry Act
15 1994;'.
51. State Owned Enterprises Act 1992
In section 88A(3) of the State Owned
Enterprises Act 1992, after "by a statutory
corporation" insert "or by such a company all the
20 shares in which are held by or on behalf of the
State or a statutory corporation.".
52. Treasury Corporation of Victoria Act 1992
In section 36A of the Treasury Corporation of
Victoria Act 1992, in the definition of "public
25 authority", after "GASCOR," insert "a public gas
company within the meaning of the Gas Industry
Act 1994,".
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Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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