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PARLIAMENT OF VICTORIA
Gas Industry (Amendment) Act 1998
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Principal Act 2
PART 2--AMENDMENT OF PRINCIPAL ACT 3
4. New definitions 3
5. New section 5C inserted 4
5C. Substantial degree of power 4
5D. Sale of gas under MSO Rules 5
6. Dissolution of GTC 5
7. VENCorp 6
8. Functions of VENCorp 6
9. Review of Part 2 and section 47 7
10. Corporate plan 7
11. Exemption from liability relating to transmission of gas 7
12. New Part 3A inserted 8
PART 3A--SIGNIFICANT PRODUCERS 8
Division 1--Preliminary 8
34. Conduct 8
35. References to purpose 9
36. Subsidiary, holding and related bodies corporate 9
37. Joint ventures 12
38. Provisions of this Part are in addition to other anti-
competitive laws 13
39. Persons involved in contravention of competition rule 13
Division 2--Anti-competitive conduct 14
40. Anti-competitive conduct 14
41. Prohibition of anti-competitive conduct 14
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Clause Page
Division 3--Authorisation 14
42. ORG may grant authorisation 14
43. Variation or revocation of authorisation 15
44. Appeal 16
Division 4--Competition notices 18
45. Competition notices 18
45A. Legal proceedings excluded 18
45B. Competition notice to be given to significant producer 19
45C. Evidentiary effect of competition notice 19
45D. Notice of orders 19
45E. Making of orders 20
45F. Extension of time limits 20
45G. Mandatory orders 20
45H. Penalty orders 20
45I. Reasons for orders 21
45J. Enforcement of orders of ORG 21
Division 5--Appeal Tribunal 21
45K. Application for review of order 21
45L. Appeal tribunal 21
45M. Procedure 22
45N. Material which appeal tribunal may consider 22
45O. Decision of appeal tribunal 23
45P. ORG may make consequential orders 23
45Q. Appeal to Supreme Court 24
45R. Operation of order that is subject to review 25
Division 6--Injunctions etc. 26
45S. Injunctions 26
45T. Actions for damages for contravention of competition
rule 28
45U. Declaratory relief 29
Division 7--Access to information 29
45V. Power to obtain information and documents 29
45W. Restriction on disclosure of confidential information 31
45X. Appeal against disclosure notice 34
Division 8--Review of Part 35
45Y. Review of operation of this Part 35
Division 9--Legal proceedings excluded 35
45Z. No proceedings 35
13. New section 47 inserted 36
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Clause Page
47. Operation of gas transmission system 36
14. Amendment of Part 4A 37
15. New section 48BA inserted 37
48BA. Offence to operate underground storage facility without
licence 37
16. Amendment of section 48D 38
17. Licences 38
18. New section 48GA inserted 39
48GA. Reliability of retail supply 39
19. Transitional provisions 40
20. Obligations of gas retailer 41
21. Injunctions and actions for damages 41
22. Compulsory acquisition 41
23. New section 51B inserted 42
51B. Application of other laws in relation to land vested in a
gas company 43
24. Rateability of property 44
25. Easements 45
26. Amendment of Part 6B 45
27. New Part 6C inserted 45
PART 6C--MASTER AGREEMENTS 45
62Q. Definitions 45
62R. Assignment 49
62S. Approval 51
62T. Application 51
28. Amendment of section 68 52
29. Payments in respect of financial obligations 53
30. Proceedings 53
31. New section 101B inserted 53
101B. Supreme Court--limitation of jurisdiction 53
32. Amendment of section 115C 53
33. Nomination of VENCorp as transferor company 54
34. New Part 15 inserted in Principal Act 54
PART 15--PROHIBITED INTERESTS 54
Division 1--Preliminary 54
150. Definitions 54
151. Relevant interest in, and entitlement to, shares 57
152. Corporations Law 58
153. Unit trusts 59
154. Stock 59
155. Controlling interest 60
156. Substantial interest 60
157. Application of Part to partnerships 61
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Clause Page
158. Certain shareholders agreements to be disregarded 63
159. Certain "see-through" interests to be disregarded 64
160. Effect of certificate under section 158 or 159 66
161. Application and construction of Part 67
Division 2--Prohibited interests 67
162. Prohibited interests 67
163. Other provisions relating to prohibited interests 74
164. Temporary exemption from prohibition 75
165. Power to require information relating to interests 76
166. Disposal of interest 77
167. Voting rights in respect of certain shares 80
168. Revocation of licence 81
169. Annulment of certain resolutions 81
170. Making, review and revocation of determination by
ORG 82
171. Appeal against determination of ORG 82
172. Sale of forfeited shares 83
173. Service 84
PART 3--AMENDMENT OF ELECTRICITY INDUSTRY ACTS 85
35. Amendment of Electricity Industry Act 1993 85
36. New Part 2A substituted 85
PART 2A--ELECTRICITY TRANSMISSION 85
41A. Electricity transmission 85
37. Further amendments to Electricity Industry Act 1993 86
38. Amendment of Electricity Industry (Further Miscellaneous
Amendment) Act 1997 86
NOTES 88
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PARLIAMENT OF VICTORIA
A BILL
to amend the Gas Industry Act 1994, the Electricity Industry Act
1993 and the Electricity Industry (Further Miscellaneous
Amendment) Act 1997 and for other purposes.
Gas Industry (Amendment) Act 1998
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is to make provision
regulating certain anti-competitive conduct, to
5 restrict cross-ownership in the gas industry and to
make certain other amendments to the Gas
Industry Act 1994.
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2. Commencement
(1) This Part comes into operation on the day on
which this Act receives the Royal Assent.
(2) The remaining provisions of this Act, except
5 sections 6, 7, 9, 13, 23, 29, 35, 36 and 37, come
into operation on 8 June 1998.
(3) Section 29 is deemed to have come into operation
on 11 December 1997.
(4) Subject to sub-section (5), sections 6, 7, 9, 13, 23,
10 35, 36 and 37 come into operation on a day or
days to be proclaimed.
(5) If a provision of this Act referred to in sub-section
(4) does not come into operation before 1 January
2000, it comes into operation on that day.
15 3. Principal Act
No. 112/1994.
In this Act, the Gas Industry Act 1994 is called
Reprinted as
the Principal Act.
at 22 August
1997.
Subsequently
amended by
Nos 55/1997
(as amended
by No.
91/1997),
91/1997 and
99/1997.
_______________
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PART 2--AMENDMENT OF PRINCIPAL ACT
4. New definitions
In section 3 of the Principal Act insert--
' "Port Campbell facility" means the
5 underground storage facility or facilities
adapted under petroleum leases PPL No. 1
and PPL No. 2 issued under the Petroleum
Act 1958;
"significant producer" means a body corporate
10 that--
(a) is the holder of, or of an interest in, a
production licence for petroleum in the
adjacent area in respect of Victoria
within the meaning of the Petroleum
15 (Submerged Lands) Act 1982 or of
the Petroleum (Submerged Lands) Act
1967 of the Commonwealth; and
(b) has a substantial degree of power in one
or more Victorian gas markets--
20 and, in Part 3A, includes a body corporate
that is related within the meaning of section
36 to such a holder;
"underground storage facility" means a
naturally occurring underground reservoir
25 adapted to enable it to be used for the
purpose of storing natural gas;
"Victorian gas market" means a market in
which gas--
(a) is supplied in Victoria by a significant
30 producer to a gas retailer; or
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(b) is supplied to customers in Victoria--
whether or not the market extends beyond
Victoria.'.
5. New section 5C inserted
5 After section 5B of the Principal Act insert--
'5C. Substantial degree of power
(1) If--
(a) a body corporate that is related within
the meaning of section 36 to another
10 body corporate ("the primary body
corporate") has, or 2 or more bodies
corporate each of which is related to the
same body corporate ("the primary
body corporate") together have, a
15 substantial degree of power in a
Victorian gas market; or
(b) a body corporate ("the primary body
corporate") and another body corporate
that is, or a body corporate ("the
20 primary body corporate") and 2 or more
bodies corporate each of which is,
related within the meaning of section
36 to the primary body corporate,
together have a substantial degree of
25 power in a Victorian gas market; or
(c) a body corporate ("the primary body
corporate") is engaged in a joint
venture within the meaning of section
37 the parties to which together in that
30 capacity have a substantial degree of
market power in a Victorian gas
market--
the primary body corporate shall be taken for
the purposes of this section to have a
35 substantial degree of power in that market.
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(2) In determining for the purposes of this
section the degree of power that a body
corporate or bodies corporate has or have in
a Victorian gas market, regard shall be had
5 to the extent to which the conduct of the
body corporate or of any of those bodies
corporate in that market is constrained by the
conduct of--
(a) competitors, or potential competitors,
10 of the body corporate or of any of those
bodies corporate in that market; or
(b) persons to whom or from whom the
body corporate or any of those bodies
corporate supplies or acquires gas in
15 that market.
(3) In this section and in the definition of
"significant producer" a reference to power
in relation to, or to conduct in, a Victorian
gas market is a reference to power, or to
20 conduct, in that market either as a supplier or
as an acquirer of gas in that market.
5D. Sale of gas under MSO Rules
In this Act, a reference to a sale of gas by
retail does not include a reference to a sale of
25 gas in the market operated by VENCorp
under the MSO Rules.'.
6. Dissolution of GTC
(1) In the Principal Act--
(a) in section 3, in the definition of "gas
30 company"--
(i) in paragraph (a)(i), omit "GTC,";
(ii) in paragraph (c), omit "GTC or" (where
twice occurring);
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(b) in section 3, in the definition of "gas
corporation" omit "GTC,";
(c) in section 3, in the definition of "statutory
gas company", omit ", GTC";
5 (d) Division 1 of Part 2 is repealed;
(e) in section 17, sub-section (1) is repealed;
(f) in section 17A, sub-section (2) is repealed;
(g) Schedule 2 is repealed.
(2) On the commencement of sub-section (1)--
10 (a) GTC is abolished;
(b) all directors of GTC go out of office;
(c) the chief executive of GTC goes out of
office.
7. VENCorp
15 In the Principal Act--
(a) in section 3, in the definition of "statutory
gas company" omit "or VENCorp";
(b) in section 3, for the definition of "VENCorp"
substitute--
20 ' "VENCorp" means Victorian Energy
Networks Corporation Pty Ltd A.C.N.
081 026 066;';
(c) in the heading following section 16, for
"Victorian Energy Networks
25 Corporation" substitute "VENCorp";
(d) sections 16A, 16B, 16C, 16D, 16E, 16F and
16G are repealed;
(e) in section 17, sub-sections (3) and (4) are
repealed.
30 8. Functions of VENCorp
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After section 16C(1)(h) of the Principal Act
insert--
"(i) to collect information about delivery of gas
by gas retailers and to recommend to ORG
5 standards in relation to the reliability of the
supply of gas to classes of customers;
(j) to carry out directions given to VENCorp
under section 23, whether or not for purposes
connected with functions under this
10 section;".
9. Review of Part 2 and section 47
(1) In section 16L(1) of the Principal Act, after "this
Part" insert "and section 47".
(2) In section 16L(3) of the Principal Act omit
15 "statutory".
10. Corporate plan
In section 26(2) of the Principal Act, after "year"
insert "or such later date as is determined by the
Treasurer".
20 11. Exemption from liability relating to transmission of
gas
(1) In section 33(1) of the Principal Act, after "any
other Act" insert "but subject to sub-section (2)".
(2) In section 33(1) of the Principal Act, for
25 paragraph (a) substitute--
"(a) a gas transmission company is not liable to
any penalty or damages for failing--
(i) to accept gas for injection into, or to
make gas available for withdrawal
30 from, a transmission pipeline; or
(ii) to make a transmission pipeline
available to accept gas for injection into
it or for the withdrawal of gas from it--
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if the failure arises out of any accident or
cause beyond the control of the gas
transmission company;".
12. New Part 3A inserted
5 After section 33 of the Principal Act insert--
'PART 3A--SIGNIFICANT PRODUCERS
Division 1--Preliminary
34. Conduct
In this Part--
10 (a) a reference to engaging in conduct
includes a reference to doing or
refusing to do any act, including the
making of, or the giving effect to a
provision of, a contract or arrangement,
15 the arriving at, or the giving effect to a
provision of, an understanding or the
requiring of the giving of, or the giving
of, a covenant;
(b) a reference to conduct, when that
20 expression is used as a noun otherwise
than as mentioned in paragraph (a),
includes a reference to the doing of or
the refusing to do any act, including the
making of, or the giving effect to a
25 provision of, a contract or arrangement,
the arriving at, or the giving effect to a
provision of, an understanding or the
requiring of the giving of, or the giving
of, a covenant;
30 (c) a reference to refusing to do an act
includes a reference to--
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(i) refraining (otherwise than
inadvertently) from doing that act;
or
(ii) making it known that that act will
5 not be done; and
(d) a reference to a person offering to do an
act, or to do an act on a particular
condition, includes a reference to the
person making it known that the person
10 will accept applications, offers or
proposals for the person to do that act
or to do that act on that condition, as
the case may be.
35. References to purpose
15 For the purposes of this Part, a person is
deemed to have engaged or to engage in
conduct for a particular purpose if--
(a) the person engaged or engages in the
conduct for purposes that included that
20 purpose; and
(b) that purpose was or is a substantial
purpose.
36. Subsidiary, holding and related bodies
corporate
25 (1) For the purpose of this Part, a body
corporate, subject to sub-section (3), is
deemed to be a subsidiary of another body
corporate if--
(a) that other body corporate--
30 (i) controls the composition of the
board of directors of the first-
mentioned body corporate;
(ii) is in a position to cast, or control
the casting of, more than one-half
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of the maximum number of votes
that might be cast at a general
meeting of the first-mentioned
body corporate; or
5 (iii) holds more than one-half of the
allotted share capital of the first-
mentioned body corporate
(excluding any part of that allotted
share capital that carries no right
10 to participate beyond a specified
amount in a distribution of either
profits or capital); or
(b) the first-mentioned body corporate is a
subsidiary of any body corporate that is
15 that other body corporate's subsidiary
(including any body corporate that is
that other body corporate's subsidiary
by another application or other
applications of this paragraph).
20 (2) For the purposes of sub-section (1), the
composition of a body corporate's board of
directors shall be deemed to be controlled by
another body corporate if that other body
corporate, by the exercise of some power
25 exercisable by it without the consent or
concurrence of any other person, can appoint
or remove all or a majority of the directors,
and for the purposes of this provision that
other body corporate shall be deemed to
30 have power to make such an appointment
if--
(a) a person cannot be appointed as a
director without the exercise in his or
her favour by that other body corporate
35 of such a power; or
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(b) a person's appointment as a director
follows necessarily from his or her
being a director or other officer of that
other body corporate.
5 (3) In determining whether a body corporate is a
subsidiary of another body corporate--
(a) any shares held or power exercisable by
that other body corporate in a fiduciary
capacity shall be treated as not held or
10 exercisable by it;
(b) subject to paragraphs (c) and (d), any
shares held or power exercisable--
(i) by any person as a nominee for
that other body corporate (except
15 where that other body corporate is
concerned only in a fiduciary
capacity); or
(ii) by, or by a nominee for, a
subsidiary of that other body
20 corporate, not being a subsidiary
that is concerned only in a
fiduciary capacity--
shall be treated as held or exercisable
by that other body corporate;
25 (c) any shares held or power exercisable by
any person by virtue of the provisions
of any debentures of the first-
mentioned body corporate, or of a trust
deed for securing any allotment of such
30 debentures, shall be disregarded; and
(d) any shares held or power exercisable
by, or by a nominee for, that other body
corporate or its subsidiary (not being
held or exercisable as mentioned in
35 paragraph (c)) shall be treated as not
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held or exercisable by that other body
corporate if the ordinary business of
that other body corporate or its
subsidiary, as the case may be, includes
5 the lending of money and the shares are
held or the power is exercisable by way
of security only for the purposes of a
transaction entered into in the ordinary
course of that business.
10 (4) A reference in this Part to the holding
company of a body corporate shall be read as
a reference to a body corporate of which that
other body corporate is a subsidiary.
(5) Where a body corporate--
15 (a) is the holding company of another body
corporate;
(b) is a subsidiary of another body
corporate; or
(c) is a subsidiary of the holding company
20 of another body corporate--
that first-mentioned body corporate and that
other body corporate shall, for the purposes
of this Part, be deemed to be related to each
other.
25 (6) In proceedings under this Part it shall be
presumed, unless the contrary is established,
that bodies corporate are not, or were not at a
particular time, related to each other.
37. Joint ventures
30 In this Part--
(a) a reference to a joint venture is a
reference to an activity in trade or
commerce--
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(i) carried on jointly by 2 or more
persons, whether or not in
partnership; or
(ii) carried on by a body corporate
5 formed by two or more persons
for the purpose of enabling those
persons to carry on that activity
jointly by means of their joint
control, or by means of their
10 ownership of shares in the capital,
of that body corporate; and
(b) a reference to a contract or arrangement
made or understanding arrived at, or to
a proposed contract or arrangement to
15 be made or proposed understanding to
be arrived at, for the purposes of a joint
venture, in relation to a joint venture by
way of an activity carried on by a body
corporate as mentioned in sub-
20 paragraph (a)(ii), includes a reference
to the memorandum and articles of
association, rules or other document
that constitute or constitutes, or are or
is to constitute, that body corporate.
25 38. Provisions of this Part are in addition to
other anti-competitive laws
The provisions of this Part are in addition to
any other law regulating anti-competitive
conduct.
30 39. Persons involved in contravention of
competition rule
For the purposes of Divisions 2 and 3, a
reference to a significant producer includes a
reference to a person who--
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(a) has aided, abetted, counselled or
procured a contravention or proposed
contravention of the competition rule;
or
5 (b) has induced such a contravention or
proposed contravention; or
(c) has been in any way directly or
indirectly knowingly concerned in, or
party to, such a contravention or
10 proposed contravention; or
(d) has conspired with others to effect such
a contravention or proposed
contravention.
Division 2--Anti-competitive conduct
15 40. Anti-competitive conduct
A significant producer engages in anti-
competitive conduct if the significant
producer discriminates among gas retailers
in a manner that has the purpose, or has or is
20 likely to have the effect, of substantially
lessening competition in a Victorian gas
market.
41. Prohibition of anti-competitive conduct
(1) A significant producer must not engage in
25 anti-competitive conduct within the meaning
of section 40.
(2) For the purposes of this Part, the rule set out
in sub-section (1) is to be known as the
competition rule.
30 Division 3--Authorisation
42. ORG may grant authorisation
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(1) Subject to this section and the regulations,
ORG may, on the application of a significant
producer--
(a) grant an authorisation to the significant
5 producer and to any other person or
class of persons specified in the
authorisation to engage in conduct that,
but for the authorisation, might
contravene the competition rule; or
10 (b) refuse to grant such an authorisation.
(2) ORG must not grant an authorisation in
relation to conduct unless--
(a) in the opinion of ORG, the conduct
would not contravene the competition
15 rule; and
(b) the significant producer has not
commenced to engage in the conduct.
(3) An authorisation under sub-section (1)--
(a) may be granted subject to such terms
20 and conditions as ORG determines; and
(b) may be granted in respect of a specified
period only.
(4) ORG must give written reasons to the
significant producer for its decision under
25 this section on an application by the
significant producer not later than 14 days
after making the decision.
(5) While an authorisation under sub-section (1)
remains in force, section 40 does not apply
30 to conduct to which the authorisation applies
that is engaged in by the significant producer
or by any other person or class of persons
specified in the authorisation.
43. Variation or revocation of authorisation
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(1) If ORG is satisfied that--
(a) an application for an authorisation
under this Division contained material
that was false or misleading in a
5 material particular; or
(b) since an authorisation was granted,
there has been a material change of
circumstances relating to the person to
whom it was granted or the conduct to
10 which it applies; or
(c) there has been a breach of a term or
condition of an authorisation--
ORG may, subject to the regulations, vary or
revoke the authorisation.
15 (2) If ORG varies or revokes an authorisation,
ORG must give to the significant producer
written reasons for the decision not later than
14 days after the variation or revocation.
44. Appeal
20 (1) If ORG--
(a) grants an authorisation subject to terms
and conditions or for a specified period
or refuses to grant an authorisation; or
(b) varies or revokes an authorisation--
25 the significant producer may apply to the
appeal tribunal under Division 5 for a review
of the decision on the grounds of an error of
fact or law.
(2) An application under sub-section (1) must be
30 lodged with ORG within 7 working days
after the decision is made.
(3) The appeal tribunal may not have regard to
material other than--
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(a) submissions and information made or
provided by the applicant to ORG
before the decision was made;
(b) information or material to which ORG
5 had regard before the decision was
made;
(c) the reasons given by ORG for the
making of the decision;
(d) if the appeal tribunal gives leave--
10 (i) such other material relating to the
submissions; or
(ii) such other information--
as could not by the exercise of
reasonable skill and diligence have
15 been or become available to the
applicant or ORG before the making of
the decision.
(4) The appeal tribunal must make a decision in
writing--
20 (a) affirming, modifying or setting aside
the decision of ORG and, for that
purpose, may exercise any of the
powers and discretions that ORG has
and could exercise in relation to the
25 matter; or
(b) remitting the matter for reconsideration
by ORG in accordance with any
directions or recommendations of the
appeal tribunal.
30 (5) The appeal tribunal must give a copy of its
decision in writing, together with a copy of
its reasons for the decision to the applicant
and to ORG.
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Division 4--Competition notices
45. Competition notices
(1) If ORG believes on reasonable grounds
that--
5 (a) a person is a significant producer; and
(b) that person has contravened or is
contravening, or proposing to
contravene--
the competition rule, ORG may issue a
10 written notice--
(c) stating that a specified person has
contravened, or is contravening or
proposing to contravene, the
competition rule; and
15 (d) setting out particulars of that
contravention or proposed
contravention.
(2) A notice under sub-section (1) is to be
known as a competition notice.
20 45A. Legal proceedings excluded
Proceedings--
(a) seeking the grant of any relief or
remedy in the nature of certiorari,
prohibition, mandamus or quo
25 warranto, or the grant of a declaration
or an injunction; or
(b) seeking any order under the
Administrative Law Act 1978--
(whether on the ground of absence of
30 jurisdiction or on any other ground) may not
be brought against any person in respect of a
decision to issue a competition notice or any
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act, matter or thing incidental to or leading to
the making of such a decision.
45B. Competition notice to be given to
significant producer
5 As soon as practicable after issuing a
competition notice, ORG must give a copy
of the competition notice to the person
specified in the notice.
45C. Evidentiary effect of competition notice
10 (1) In any proceedings under, or arising out of,
this Part, a competition notice is evidence of
the matters in the notice.
(2) A document purporting to be a competition
notice must, unless the contrary is
15 established, be taken to be a competition
notice and to have been properly issued.
(3) ORG may certify that a document is a copy
of a competition notice.
(4) This section applies to the certified copy as if
20 it were the original.
45D. Notice of orders
(1) ORG must, within 14 days after issuing a
competition notice, give written notice to the
person specified in the notice of the orders
25 ORG is proposing to make under this Part.
(2) Sub-section (1) does not apply to a proposed
order under section 45G unless ORG
otherwise determines.
(3) The person to whom the notice is given,
30 within 14 days after receiving the notice,
may make such submissions to ORG on the
proposed orders and provide such
information relating to them as the person
thinks fit.
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45E. Making of orders
(1) ORG may, not earlier than 14 days, and not
later than 28 days, after giving notice of the
orders under section 45D, by written notice
5 make all or any of the orders referred to in
the notice.
(2) As soon as practicable after making an order
under this section, ORG must give a copy of
the order to the person specified in the order.
10 45F. Extension of time limits
ORG may, of its own motion or on the
application of a person to whom a
competition notice is given extend a period
referred to in section 45D or 45E by not
15 more than 14 days.
45G. Mandatory orders
(1) If ORG has issued, or is entitled to issue, a
competition notice relating to a particular
person, ORG may at any time make an order
20 directing the person--
(a) to cease certain conduct; or
(b) to modify certain conduct; or
(c) to engage, or refrain from engaging, in
certain conduct.
25 (2) In an order under sub-section (1), ORG may
specify terms and conditions applicable to
the subject matter of the order.
45H. Penalty orders
If ORG has issued a competition notice
30 relating to a particular person, ORG may
make an order requiring the payment by the
person to the Consolidated Fund of a fine not
exceeding $10 000 000.
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45I. Reasons for orders
ORG must give written reasons for making
an order under this Part either when it makes
the order or within 14 days after making it.
5 45J. Enforcement of orders of ORG
An order made by ORG under this Part may
be enforced as if it were a judgment or order
of the Supreme Court.
Division 5--Appeal Tribunal
10 45K. Application for review of order
(1) A person who is the subject of an order made
by ORG under this Part may apply to the
appeal tribunal referred to in section 45L for
a review of any order made by ORG under
15 this Part in relation to the person, including,
in the case of an order under section 45H, the
amount of a fine.
(2) An application under sub-section (1) must be
lodged with ORG within 14 working days
20 after the order is made.
(3) The grounds for an application are--
(a) that ORG made an error of fact or law
in a material respect in issuing the
competition notice or in making an
25 order; or
(b) that the amount of a fine under an order
under section 45H is excessive.
45L. Appeal tribunal
(1) The appeal tribunal consists of 3 persons
30 appointed by the Minister administering the
Office of the Regulator-General Act 1994,
on such terms and conditions as the Minister
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determines, from the pool of persons
appointed by the Governor in Council for the
purposes of section 45B of that Act or from
among such other persons eligible to be
5 members of that pool as that Minister
determines being persons of whom--
(a) one must be a person experienced in
law; and
(b) another must be a person experienced
10 in economics.
(2) The person appointed under sub-section
(1)(a) shall be the presiding member.
45M. Procedure
(1) The regulations may regulate the procedure
15 of the appeal tribunal.
(2) The appeal tribunal is not bound by the rules
of evidence but, subject to section 45N, may
inform itself in any manner it thinks fit.
(3) Subject to this Part and the regulations, the
20 procedure of the appeal tribunal is in its
discretion.
45N. Material which appeal tribunal may
consider
The appeal tribunal may not have regard to
25 material other than--
(a) submissions and information made or
provided by the applicant to ORG
before the order was made;
(b) information or material to which ORG
30 had regard before the order was made;
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(c) the reasons given by ORG for the
making of the order;
(d) if the appeal tribunal gives leave--
(i) such other material relating to the
5 submissions; or
(ii) such other information--
as could not by the exercise of
reasonable skill and diligence have
been or become available to the
10 applicant or ORG before the making of
the order.
45O. Decision of appeal tribunal
(1) The appeal tribunal must make a decision in
writing--
15 (a) affirming the order under review; or
(b) setting aside the order under review and
remitting the matter for reconsideration
by ORG in accordance with any
directions or recommendations of the
20 appeal tribunal; or
(c) in the case of a review of the amount of
a fine under an order under section
45H, substituting a fine of an amount
determined by the appeal tribunal.
25 (2) The appeal tribunal must make its decision
within 3 months after the application for
review was made or within such longer
period as the appeal tribunal determines.
(3) The appeal tribunal must give a copy of its
30 decision in writing, together with a copy of
its reasons for the decision, to the applicant
and to ORG.
45P. ORG may make consequential orders
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(1) If the appeal tribunal remits a matter to
ORG, ORG may make such orders as ORG
thinks fit having regard to--
(a) the error or errors of fact or law
5 referred to in the decision of the appeal
tribunal; or
(b) in the case of a review of the amount of
a fine, the decision of the appeal
tribunal.
10 (2) ORG, within 14 days after receiving a copy
of the appeal tribunal's decision--
(a) must make an order or orders under
sub-section (1); and
(b) must give a copy of the order or orders,
15 together with its reasons for making
them, to the person who applied for the
review.
(3) ORG may extend the period referred to in
sub-section (2) by not more than 14 days.
20 (4) If the appeal tribunal so determines, section
45D(1), (2) and (3) applies to an order made
under this section as if it were a competition
notice.
45Q. Appeal to Supreme Court
25 (1) A party to a review by the appeal tribunal
may appeal to the Supreme Court--
(a) on a question of law, from a decision of
the appeal tribunal on that review; and
(b) in the case of a review of an order
30 under section 45H, against that order.
(2) An appeal must be instituted--
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(a) not later than the 14th day after the day
on which a decision was made under
section 45O or the day on which a copy
of an order of ORG made under section
5 45P was given to the appellant or
within such longer period as the
Supreme Court (whether before or after
that day) allows; and
(b) subject to and in accordance with the
10 rules of the Supreme Court.
(3) The Supreme Court must hear and determine
the appeal and may make such order as it
thinks fit including--
(a) an order affirming, varying or setting
15 aside the order of ORG; or
(b) an order affirming, varying or setting
aside the order under section 45H; or
(c) an order remitting the matter to ORG
for re-consideration in accordance with
20 any directions or recommendations of
the Court.
45R. Operation of order that is subject to review
(1) The making of an application to the appeal
tribunal or the institution of an appeal to the
25 Supreme Court from a decision of the appeal
tribunal does not affect the operation of the
order that, or the review of which, is the
subject of the application.
(2) The appeal tribunal, on a request being made
30 by a party to a review before the appeal
tribunal, may, if the appeal tribunal is of the
opinion that it is desirable to do so, and good
cause to do so has been shown, make an
order staying the operation of the order.
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(3) If an appeal is instituted to the Supreme
Court against a decision of the appeal
tribunal, the Supreme Court may, if satisfied
that it is desirable to do so, and good cause
5 to do so has been shown, make an order
staying the operation of any or all of--
(a) the decision of the appeal tribunal;
(b) the order to which the review before the
appeal tribunal related;
10 (c) a consequential order made by ORG
under section 45P.
(4) The appeal tribunal or the Supreme Court, in
considering whether good cause has been
shown for a stay of the operation of an order
15 or decision under this section must have
regard to the harm to customers or any other
persons that may occur because of the
continuation of the discrimination pending
the outcome of the review or determination
20 of the appeal and any undertakings or
indemnities tendered by the person making
the application to cease the discrimination.
Division 6--Injunctions etc.
45S. Injunctions
25 (1) If, on an application by a person, the
Supreme Court is satisfied that a person--
(a) has contravened, or is proposing to
contravene, the competition rule; or
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(b) has been in any way, directly or
indirectly, knowingly concerned in, or
party to, a contravention or proposed
contravention of the competition rule;
5 or
(c) has aided, abetted, counselled or
procured such a contravention; or
(d) has induced, whether by threats or
promises or otherwise, such a
10 contravention; or
(e) has been in any way, directly or
indirectly, knowingly concerned in, or
party to such a contravention; or
(f) has conspired with others to effect such
15 a contravention--
the Court may grant an injunction in such
terms as the Court determines to be
appropriate.
(2) If an application for an injunction under sub-
20 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
25 contravened, or is proposing to contravene
the competition rule.
(3) If in the opinion of the Court it is desirable to
do so, the Court may grant an interim
injunction pending determination of an
30 application under sub-section (1).
(4) The Court may rescind or vary an injunction
or interim injunction granted under this
section.
(5) The power of the Court to grant an
35 injunction restraining a person from
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engaging in conduct contravening the
competition rule may be exercised--
(a) whether or not it appears to the Court
that the person intends to contravene
5 again, or to continue to contravene that
rule; and
(b) whether or not the person has
previously contravened that rule; and
(c) whether or not there is an imminent
10 danger of substantial damage to any
other person or to property if the person
contravenes that rule; and
(d) whether or not ORG has taken action
under this Part.
15 (6) If ORG makes an application to the Supreme
Court for the grant of an injunction under
this section, the Supreme Court shall not
require the applicant or any other person, as
a condition of granting an interim injunction,
20 to give any undertakings as to damages.
45T. Actions for damages for contravention of
competition rule
(1) A person who suffers loss or damage by
conduct of another that was done in
25 contravention of the competition rule may
recover the amount of the loss or damage by
action against that other person or against
any person involved in the contravention.
(2) An action under sub-section (1) may be
30 commenced at any time within 3 years after
the date on which the cause of action
accrued.
(3) A reference in sub-section (1) to a person
involved in a contravention of the
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competition rule is a reference to a person
who--
(a) has aided, abetted, counselled or
procured the contravention; or
5 (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
10 party to the contravention; or
(d) has conspired with others to effect the
contravention.
45U. Declaratory relief
(1) The Supreme Court, on an application by a
15 person shall, by order, declare whether or not
the person to which the application relates
has contravened the competition rule.
(2) If the order declares the person to have
contravened the competition rule, the order
20 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
contravention;
25 (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.
30 Division 7--Access to information
45V. Power to obtain information and
documents
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(1) If ORG has reason to believe that a person
has information or a document that may
assist ORG in the performance of any of
ORG's prescribed duties under this Part,
5 ORG may require the person--
(a) to give ORG the information or
document; or
(b) to appear before ORG to give any such
information or produce any such
10 document.
(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
15 complied with; and
(b) in what form the information or copy of
the document is to be given to ORG.
(3) The notice must also state that the
requirement is made under this section and
20 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.
25 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
compliance may tend to incriminate the
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person or make the person liable to a penalty
for an offence under any other law.
(6) A person must not, in purported compliance
with a requirement made under this section,
5 knowingly give ORG information that is
false or misleading.
Penalty: 100 penalty units or imprisonment
for 2 years.
(7) A person must not--
10 (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
15 or disadvantage--
because that other person complied, or
intends to comply, with a requirement made
under this section.
Penalty: 100 penalty units or imprisonment
20 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 ORG under
25 this section.
(9) In this section--
"prescribed duty" means a function or
power of ORG under this Part or
Part 4A.
30 45W. Restriction on disclosure of confidential
information
(1) This section applies if information or a
document is given to ORG under section
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45V and, at the time it is given, the person
giving it states that it is of a confidential or
commercially-sensitive nature.
(2) ORG must not, without the consent of the
5 person who gave it, disclose the information
or the contents of the document to any
person unless--
(a) ORG is of the opinion--
(i) that the disclosure of the
10 information or document would
not cause detriment to the person
supplying it or to the person from
whom that person received it; or
(ii) that, although the disclosure of the
15 information or document would
cause detriment to such a person,
the public benefit in disclosing it
outweighs that detriment; and
(b) ORG gives the person who supplied the
20 information or document a written
notice--
(i) stating that ORG wishes to
disclose the information or
contents of the document,
25 specifying the nature of the
intended disclosure and setting out
detailed reasons why ORG wishes
to make the disclosure; and
(ii) stating that ORG is of the opinion
30 required by paragraph (a) and
setting out detailed reasons why it
is of that opinion; and
(iii) setting out a copy of this section
and section 45X; and
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(c) if ORG is aware that the person who
supplied the information or document
in turn received the information or
document from another person and is
5 aware of that other person's identity and
address, ORG gives that other person a
written notice--
(i) containing the details required by
paragraph (b); and
10 (ii) stating that ORG is of the opinion
required by paragraph (a) in
relation to that other person and
setting out detailed reasons why it
is of that opinion; and
15 (iii) setting out a copy of this section
and section 45X; and
(d) an application for review is not lodged
in respect of any notice given under
paragraph (b) or (c) within the time
20 permitted by section 45X(3).
(3) Sub-section (2) does not prevent ORG--
(a) from disclosing information or the
contents of a document to a member of
the staff of ORG or to a person engaged
25 by ORG in connection with the
carrying out of its functions; or
(b) from using information or a document
for the purposes of civil or criminal
proceedings; or
30 (c) from supplying the information or
document to an appeal tribunal hearing
an application in relation to the
information or document; or
(d) from supplying the information or
35 document to the ACCC in relation to a
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possible contravention of Part IV of the
Trade Practices Act 1974 of the
Commonwealth or the Competition
Code.
5 (4) For the purposes of this section, the
disclosure of anything that is already in the
public domain at the time ORG wishes to
disclose it cannot cause detriment to any
person referred to in sub-section (2)(b) or
10 (c).
45X. Appeal against disclosure notice
(1) A person who is given a notice under section
45W(2)(b) or (c) and who is aggrieved by a
decision of ORG to disclose information or
15 the contents of a document may appeal
against the decision in accordance with this
section.
(2) An appeal may only be made on the ground
that--
20 (a) the decision was not made in
accordance with law; or
(b) the decision is unreasonable having
regard to all relevant circumstances.
(3) The person must lodge notice of the appeal
25 with ORG within 7 working days after the
person is given the notice.
(4) On the hearing of an appeal against a
decision, ORG bears the onus of establishing
that--
30 (a) the decision was made in accordance
with law; and
(b) the decision is reasonable having regard
to all relevant circumstances.
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(5) In granting an appeal under this section the
appeal tribunal may--
(a) forbid disclosure by ORG of the
information or document that is the
5 subject of the appeal; or
(b) restrict the intended disclosure by ORG
of the information or document within
limits specified by the appeal panel.
(6) Except as otherwise provided in this section,
10 section 48ZQ (except sub-sections (1), (2),
(8) and (15)) applies to an appeal under this
section.
Division 8--Review of Part
45Y. Review of operation of this Part
15 (1) The Minister must cause to be conducted a
review of the operation of this Part before
30 June 2003.
(2) In conducting the review, consideration must
be given to the question whether any or all of
20 the provisions of this Part should be repealed
or amended.
(3) The Minister must cause to be prepared a
report of the review.
(4) The Minister must cause copies of the report
25 to be laid before each House of the
Parliament within 15 sitting days of the
House after the completion of the
preparation of the report.
Division 9--Legal proceedings excluded
30 45Z. No proceedings
Proceedings may not be brought in respect of
a decision or determination of ORG or of an
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appeal tribunal or in respect of any process
leading to such a decision or determination,
except as provided by this Part.'.
13. New section 47 inserted
5 After section 46 of the Principal Act insert--
"47. Operation of gas transmission system
(1) ORG must ensure that at all times VENCorp
or another person is appointed by ORG to
carry out the functions referred to in sub-
10 section (3).
(2) VENCorp or any other person appointed for
the purposes of this section must carry out
the functions referred to in sub-section (3) in
accordance with the terms of the
15 appointment and such directions (if any) as
are given to VENCorp or the other person in
writing by ORG.
(3) The functions are--
(a) to specify security standards for the gas
20 transmission system;
(b) to control the security of the gas
transmission system;
(c) to control the operation of the gas
transmission system;
25 (d) to collect information about the gas
transmission system;
(e) to monitor and review the capacity of
the gas transmission system and the
trends for demand for the injection of
30 gas into, and the withdrawal of gas
from, the system;
(f) to provide information and other
services to facilitate decisions for
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economically efficient investment and
use of resources in the gas industry;
(g) to co-ordinate the interaction of gas
production, gas storage, transmission
5 pipelines and gas distribution and
supply facilities for the purpose of
ensuring a secure and efficient gas
transmission system;
(h) to operate and administer a market and
10 facilitate trading arrangements for the
operation of the gas transmission
system;
(i) to collect information about delivery of
gas by gas retailers and to recommend
15 to ORG standards in relation to
reliability of the supply of gas to
classes of customers.".
14. Amendment of Part 4A
(1) In section 48A(1)(a) of the Principal Act omit
20 ", other than non-franchise customers".
(2) In the heading preceding section 48B of the
Principal Act, for "and gas retailers" substitute
", gas retailers and providers of underground
storage facilities".
25 15. New section 48BA inserted
After section 48B of the Principal Act insert--
"48BA. Offence to operate underground storage
facility without licence
A person must not engage in providing
30 services as a market participant by means of
the Port Campbell facility, either as principal
or agent, unless the person--
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(a) is the holder of a licence under this Part
authorising that person to provide those
services; or
(b) is exempt from the requirement to
5 obtain a licence in respect of those
services because of an Order under
section 48C.
Penalty: 1000 penalty units and 100
penalty units for each day after the
10 day on which a notice of
contravention of this section is
served on the person by ORG.".
16. Amendment of section 48D
After section 48D(1)(b) of the Principal Act
15 insert--
"or
(c) authorising the person to engage in providing
services as a market participant by means of
an underground storage facility.".
20 17. Licences
(1) In section 48F(2) of the Principal Act, paragraph
(b) is repealed.
(2) In section 48F(4) of the Principal Act, for
paragraph (f) substitute--
25 "(f) in the case of a licence issued to a gas
retailer, requiring the licensee to comply, in
relation to the supply of gas to specified
classes of customers, with the standards of
reliability of supply determined under
30 section 48GA;
(fa) preventing the licensee from engaging in or
undertaking specified business activities;
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(fb) requiring the licensee to establish and
maintain separate accounts for specified
business activities and to keep those
activities separate from its other activities in
5 any manner specified in the licence;
(fc) prohibiting the licensee from engaging in
conduct of a particular kind, or for a
particular purpose, or that has, or is likely to
have, a particular effect;".
10 (3) In section 48K of the Principal Act, for sub-
section (5) substitute--
"(5) Subject to this section--
(a) if the application is for the transfer of
the licence to a significant producer or
15 to a body corporate that is a related
body corporate of a significant
producer within the meaning of the
Corporations Law, ORG may approve,
or refuse to approve, the application for
20 any reason ORG considers appropriate,
having regard to the objectives
specified in section 8B; or
(b) in any other case, ORG may approve,
or refuse to approve, the application for
25 any reason it considers appropriate,
having regard to the objectives
specified in section 8B.".
18. New section 48GA inserted
After section 48G of the Principal Act insert--
30 "48GA. Reliability of retail supply
ORG must determine standards in relation to
reliability of the supply of gas to classes of
customers in accordance with
recommendations made to ORG by
35 VENCorp.".
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19. Transitional provisions
(1) After section 48L(1) of the Principal Act insert--
"(1A) The Treasurer may give directions to ORG
as to the terms and conditions to be included
5 in a licence under section 48D(1)(c).".
(2) In section 48L(2) of the Principal Act, for "initial
licences under this Part" substitute "licences
issued under this Part on 11 December 1997 or a
licence issued under section 48D(1)(c)".
10 (3) After section 48L(2) of the Principal Act insert--
"(3) Despite anything to the contrary in any
licence to sell gas by retail issued to a
significant producer, such a licence does not
authorise the sale of gas from a supply point
15 to a person unless--
(a) the person had purchased not less than
500 000 GJ of gas from that supply
point, or an ancillary supply point,
during the 12 months immediately
20 preceding 1 September 1998 or the
commencement of the supply,
whichever is the later; or
(b) if the supply point is new and ORG is
satisfied on reasonable grounds that the
25 person will purchase not less than
500 000 GJ of gas from that supply
within a period of 12 months during the
period of 3 years next following
1 September 1998 or the
30 commencement of the supply,
whichever is the later; or
(c) the person is a person to whom a
determination of ORG under sub-
section (4) applies.
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(4) ORG, with the approval of the Treasurer,
may determine that a licence referred to in
sub-section (3) may authorise the sale of gas
by retail to a person who satisfies such
5 requirements as to the quantity of gas
purchased, or likely to be purchased, as ORG
determines, having regard to the objectives
specified in section 8B.
(5) Nothing in sub-section (3) applies to or
10 affects the carrying on by a person of an
activity in accordance with an exemption
under section 48C.".
20. Obligations of gas retailer
In section 48M(3) of the Principal Act, for "non-
15 franchise customers" substitute "customers, other
than non-franchise customers".
21. Injunctions and actions for damages
In the Principal Act--
(a) in section 48R(2)(b), for "any other person"
20 substitute "a market participant";
(b) in section 48S(1), for "person who"
substitute "market participant who".
22. Compulsory acquisition
(1) After section 51(2) of the Principal Act insert--
25 "(2A) Land acquired by the Minister on a
recommendation of a gas transmission
company or gas distribution company under
sub-section (1) vests in that gas transmission
company or gas distribution company under
30 section 24 of the Land Acquisition and
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Compensation Act 1986 despite anything to
the contrary in that Act.".
(2) After section 51(4) of the Principal Act insert--
"(5) Sub-section (2A) applies to land acquired by
5 the Minister under this section on or after the
commencement of section 22 of the Gas
Industry (Amendment) Act 1998 even if a
notice of intention to acquire the land was
given by the Minister before that
10 commencement.".
(3) After section 51A(2) of the Principal Act insert--
"(2A) An easement acquired by the Minister on a
recommendation of a gas transmission
company or gas distribution company under
15 sub-section (1) vests in that gas transmission
company or gas distribution company under
section 24 of the Land Acquisition and
Compensation Act 1986 despite anything to
the contrary in that Act.
20 (2B) The Minister may acquire an easement under
sub-section (1) even though that easement is
not, and is not in any instrument, expressed
to be, appurtenant to any land.".
(4) After section 51A(3) of the Principal Act insert--
25 "(3A) Sub-section (2A) applies to an easement
acquired by the Minister under this section
on or after the commencement of section 22
of the Gas Industry (Amendment) Act
1998 even if a notice of intention to acquire
30 the easement was given by the Minister
before that commencement.".
23. New section 51B inserted
After section 51A of the Principal Act insert--
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'51B. Application of other laws in relation to land
vested in a gas company
(1) Sections 26 and 28 of the Land Acquisition
and Compensation Act 1986 apply in
5 relation to land or an easement which is
vested in a gas transmission company or gas
distribution company under section 51 or
51A as if--
(a) any reference to land vested in the
10 Authority were a reference to the land
vested the gas transmission company or
gas distribution company (as the case
requires); and
(b) any reference to the Authority entering
15 into possession of the land were a
reference to the Authority entering into
possession of the land on behalf of the
gas transmission company or gas
distribution company in which the land
20 is vested.
(2) Section 53(2) of the Transfer of Land Act
1958 applies in relation to land or an
easement which is vested in a gas
transmission company or gas distribution
25 company under section 51 or 51A as if a
reference in that provision to an acquiring
authority or authority were a reference to the
gas transmission company or gas distribution
company (as the case requires).
30 (3) Section 54 of the Transfer of Land Act
1958 applies in relation to land or an
easement which is vested in a gas
transmission company or gas distribution
company under section 51 or 51A as if a
35 reference in that section to an acquiring
authority (except where secondly occurring)
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24
Act No.
were a reference to the gas transmission
company or gas distribution company (as the
case requires).
(4) The Minister may lodge a notification under
5 section 88(2) of the Transfer of Land Act
1958 in respect of an easement acquired
under section 51 or 51A even though the
easement is vested in a gas transmission
company or gas distribution company.
10 (5) Section 35(3) of the Subdivision Act 1988
applies in relation to land which is vested in
a gas transmission company or gas
distribution company under section 51 as if
after paragraph (d) there were inserted--
15 "(e) if any land on the plan is vested in a gas
transmission company or gas
distribution company under section 51
of the Gas Industry Act 1994, must
include the name of the company in
20 whom the land is vested.".
(6) Section 35(6) of the Subdivision Act 1988
applies in relation to land which is vested in
a gas transmission company or gas
distribution company under section 51 as if
25 paragraphs (k) and (l) provide for the
creation of a folio in the name of the gas
transmission company or gas distribution
company in which the land is vested instead
of in the name of the authority.'.
30 24. Rateability of property
(1) In section 52 of the Principal Act, after "public
gas company" insert "or VENCorp".
(2) At the end of section 52 of the Principal Act
insert--
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"(2) Despite anything to the contrary in the Local
Government Act 1989, land is not occupied
land for the purposes of that Act merely
because there is on or under that land any
5 pipe or system of pipes for, or incidental to
the conveyance of gas for sale by retail.".
25. Easements
In section 61(1)(a) of the Principal Act, after
"easement" (where twice occurring) insert ", right
10 or privilege".
26. Amendment of Part 6B
(1) In section 62M of the Principal Act, in the
definition of "new arrangement", after "contract or
arrangement made on or after 1 December 1997"
15 insert "but does not include a contract or
arrangement if a party to it is a person other than a
statutory authority or a company all the shares in
which are held by or on behalf of the State or a
statutory authority".
20 (2) In section 62M of the Principal Act, in the
definition of "new retailer", for "(Gas)" (where 3
times occurring) substitute "Energy".
27. New Part 6C inserted
After Part 6B of the Principal Act insert--
25 'PART 6C--MASTER AGREEMENTS
62Q. Definitions
In this Part--
"BHP" means BHP Petroleum (Bass Strait)
Pty Ltd or a body corporate related to
30 it;
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"Competition Code" has the same meaning
as in the Competition Policy Reform
(Victoria) Act 1995;
"Esso" means Esso Australia Resources Ltd
5 or a body corporate related to it;
"gas supply contract" has the same
meaning as in section 62M;
"master agreement" means--
(a) a contract between GASCOR and
10 a new retailer or new retailers and
RCo containing terms and
conditions--
(i) on which the rights and
obligations of GASCOR
15 under a gas supply contract
are to be exercised; and
(ii) under which quantities of gas
are allocated among the new
retailers and RCo; and
20 (iii) which is designated as such
by the Minister for the
purpose of this provision;
and
(b) each and any variation to the
25 master agreement as approved by
the Minister; and
(c) a contract or arrangement made or
understanding arrived at between
GASCOR and a new retailer or
30 new retailers and RCo or between
new retailers and RCo for the
purpose of giving effect to, or
incidental to, an obligation or
right of one or more of the parties
35 under the master agreement;
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"new retailer" has the same meaning as in
section 62M;
"RCo" means Gas Release Co Pty Ltd
A.C.N. 079 089 286;
5 "specified operational provision", in
relation to a master agreement, means a
provision that relates to--
(a) the provision of information by a
new retailer or RCo to GASCOR
10 or by GASCOR to a new retailer
or RCo or the provision or sharing
of information between such
parties inter se; or
(b) any direction or action, or
15 decision to make any direction or
take any action by a party to the
master agreement or its
representative collectively with
any other such party or its
20 representative relating to any
right, entitlement, interest,
decision or action that GASCOR
has or may take or exercise under
a gas supply contract--
25 and has the purpose or has or is likely
to have the effect of substantially
lessening competition within the
meaning of section 45 of the Trade
Practices Act and the Competition
30 Code;
"specified price provision", in relation to a
master agreement, means a provision
that has the purpose or has or is likely
to have the effect, of fixing, controlling
35 or maintaining or providing for the
fixing, controlling or maintaining of the
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price for gas to be acquired by
GASCOR, supplied by GASCOR to or
through the agency of more than one
new retailer or acquired by more than
5 one new retailer or RCo;
"specified price review provision" means a
specified price provision that relates to
the conduct of any price review under
the price review provisions of a gas
10 supply contract;
"specified terms provision", in relation to a
master agreement, means a provision
that provides for the supply of gas by
GASCOR to or through the agency of
15 more than one new retailer or RCo, or
that provides for the acquisition of gas
by more than one new retailer or RCo,
upon identical or like or similar terms
and conditions that has the purpose, or
20 would have or would be likely to have
the effect, of substantially lessening
competition within the meaning of
section 45 of the Trade Practices Act
and the Competition Code;
25 "specified volume provision", in relation to
a master agreement, means a provision
that relates to--
(a) the acquisition by a new retailer or
RCo from GASCOR of a volume
30 of gas that is specified,
identifiable or capable of
calculation; or
(b) the supply by GASCOR to or
through the agency of a new
35 retailer or RCo of a volume of gas
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that is specified, identifiable or
capable of calculation; or
(c) the payment by a new retailer or
RCo to GASCOR of any amount
5 of money for the reason that
GASCOR has not acquired or has
not agreed to acquire from Esso
and BHP jointly or from either or
each of them severally (as the case
10 may be) or the new retailer or
RCo has not acquired or has not
agreed to acquire from GASCOR
or has not supplied or agreed to
supply as GASCOR's agent a
15 volume of gas that is specified,
identifiable or capable of
calculation--
and that has the purpose, or has or is
likely to have the effect, of
20 substantially lessening competition
within the meaning of section 45 of the
Trade Practices Act and the
Competition Code;
"Trade Practices Act" means the Trade
25 Practices Act 1974 of the
Commonwealth.
62R. Assignment
(1) If GASCOR, a new retailer or RCo assigns
the whole or any part or any combination of
30 parts (not comprising the whole) of its rights
under a master agreement to a person or to
persons, a reference to GASCOR, the new
retailer or RCo (as the case requires) in this
Part (except the definitions in this Part of
35 GASCOR, new retailer or RCo and this
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section) shall be construed from the time of
that assignment to be--
(a) in the case where GASCOR, the new
retailer or RCo assigns the whole of its
5 rights under a master agreement, a
reference to that person or to those
persons and to a body corporate related
to that person or to any of those
persons; and
10 (b) in the case where GASCOR, the new
retailer or RCo assigns a part or
combination of parts (not comprising
the whole) of its rights under a master
agreement--
15 (i) in respect of the part or
combination of parts assigned, a
reference to that person or to those
persons and to a body corporate
related to that person or to any of
20 those persons; and
(ii) in respect of the rights retained, a
reference to GASCOR, the new
retailer or RCo (as the case
requires).
25 (2) Sub-section (1) applies to each and any
assignment by a person or persons of the
whole or any part or combination of parts
(not comprising the whole) of the rights held
originally by GASCOR, the new retailer or
30 RCo under a master agreement and held at
that time by that person or those persons and
in respect of which there has been a previous
application of sub-section (1).
(3) For the purpose of this section--
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(a) a reference to assignment and other
grammatical forms of that word shall be
read as a reference to allocation under
this Act, assignment, conveyance,
5 grant, transfer or novation and for the
other corresponding grammatical forms
of each of those words; and
(b) a reference to rights under a master
agreement shall be read as a reference
10 to rights, benefits, privileges or
facilities under a master agreement.
62S. Approval
(1) Subject to sub-section (2), or the purposes of
Part IV of the Trade Practices Act and of the
15 Competition Code, any thing done or other
conduct engaged in by any, all or some of
GASCOR, the new retailers and RCo that is
specified in section 62T as a thing or other
conduct engaged in to which this section
20 applies, is specifically authorised to be done
during the period ending 31 December 2010.
(2) The specific authorisation referred to in sub-
section (1) is intended to operate--
(a) to the extent that the master agreement
25 contains terms and conditions on which
the rights and obligations of GASCOR
under a gas supply contract are to be
exercised; and
(b) in parallel with the authorisation
30 contained in section 62O.
62T. Application
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Section 62S applies to the following
things--
(a) attempting to make or making a master
agreement which contains a specified
5 terms provision, other than a specified
price review provision;
(b) attempting to give or giving effect to a
specified terms provision of a master
agreement, other than a specified price
10 review provision;
(c) attempting to make or making a master
agreement which contains a specified
price provision, other than a specified
price review provision;
15 (d) attempting to give or giving effect to a
specified price provision of a master
agreement, other than a specified price
review provision;
(e) attempting to make or making a master
20 agreement which contains a specified
volume provision;
(f) attempting to give or giving effect to a
specified volume provision of a master
agreement;
25 (g) attempting to make or making a master
agreement which contains a specified
operational provision other than a
specified price provision;
(h) attempting to give or giving effect to a
30 specified operational provision of a
master agreement other than a specified
price provision.'.
28. Amendment of section 68
After section 68(6) of the Principal Act insert--
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"(6A) If the Treasurer and the Minister, with the
agreement of the gas company, declare that a
statement given under this section by the gas
company has become irrevocable--
5 (a) the statement; and
(b) the date specified for the purposes of
this section in relation to the
statement--
as at the date of the declaration may not be
10 amended.".
29. Payments in respect of financial obligations
In section 88B(1)(a) of the Principal Act, for "gas
company" substitute "gas corporation".
30. Proceedings
15 In section 96A of the Principal Act after
"company" (wherever occurring) insert "or the
Office of Gas Safety".
31. New section 101B inserted
After section 101A of the Principal Act insert--
20 "101B. Supreme Court--limitation of jurisdiction
It is the intention of sections 45A and 45Z to
alter or vary section 85 of the Constitution
Act 1975.".
32. Amendment of section 115C
25 After section 115C(6) of the Principal Act
insert--
"(6A) If the Treasurer and the Minister, with the
agreement of the PGC, declare that a
statement given under this section by the
30 PGC has become irrevocable--
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(a) the statement; and
(b) the date specified for the purposes of
this section in relation to the
statement--
5 as at the date of the declaration may not be
amended.".
33. Nomination of VENCorp as transferor company
After section 115B of the Principal Act insert--
"(2) The Treasurer may nominate the Victorian
10 Energy Networks Corporation established
under Division 2A of Part 2 as a transferor
company for the purposes of this Part.".
34. New Part 15 inserted in Principal Act
Before the Schedules to the Principal Act insert--
15 'PART 15--PROHIBITED INTERESTS
Division 1--Preliminary
150. Definitions
In this Part--
"associate" has the meaning, in relation to a
20 person, it would have under Division 2
of Part 1.2 of the Corporations Law
if--
(a) for paragraphs (b) and (c) of
section 12(1) of that Law, there
25 were substituted--
"or
(b) whether the primary person
is entitled to shares in or is in
a position to exercise certain
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powers in relation to a body
corporate;"; and
(b) sections 13, 14, 16(2) and 17 of
that Law were repealed;
5 "initial distributor" means--
(a) Stratus Networks Pty Ltd A.C.N.
079 089 099;
(b) Multinet Gas Pty Ltd A.C.N.
079 088 930;
10 (c) Westar Pty Ltd A.C.N.
079 089 008;
(d) a gas distribution company that,
under a licence, provides services
by means of a distribution
15 pipeline--
(i) to gas retailers who sell gas
to persons; or
(ii) to persons--
who--
20 (iii) were customers of a person
referred to in paragraph (a),
(b) or (c) immediately before
the licence was issued to the
gas distribution company;
25 and
(iv) were not non-franchise
customers immediately
before that licence was
issued or, if the licence was
30 issued on or after 1
September 2001,
immediately before that date;
"new retailer" means--
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(a) Ikon Energy Pty Ltd A.C.N.
079 089 553;
(b) Kinetik Energy Pty Ltd A.C.N.
079 089 188;
5 (c) Energy 21 Pty Ltd A.C.N.
079 089 213;
(d) a gas retailer that, under a licence,
sells gas by retail to persons
who--
10 (i) were customers of a person
referred to in paragraph (a),
(b) or (c) immediately before
the licence was issued to the
gas retailer; and
15 (ii) were not non-franchise
customers immediately
before that licence was
issued or, if the licence was
issued on or after 1
20 September 2001,
immediately before that date;
"officer", in relation to a corporation, has
the same meaning as in section 9 of the
Corporations Law;
25 "relevant agreement" means an agreement,
arrangement or understanding--
(a) whether formal or informal or
partly formal and partly informal;
and
30 (b) whether written or oral or partly
written and partly oral; and
(c) whether or not having legal or
equitable force and whether or not
based on legal or equitable rights;
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"relevant corporation" means gas
distribution company, gas retailer,
initial distributor, new retailer, owner
or operator of the Port Campbell
5 facility, owner or operator of a
transmission pipeline, significant
producer, TPA or VENCorp;
"share" has the same meaning as in the
Corporations Law;
10 "TPA" means--
(a) Transmission Pipelines Australia
Pty Ltd A.C.N. 079 089 268;
(b) a body corporate that owns or
operates the whole, or the
15 majority of, gas transmission
system;
(c) a body corporate that is a related
company within the meaning of
the Corporations Law of a body
20 corporate referred to in paragraph
(a) or (b);
"voting share", in relation to a corporation,
has the same meaning as in section 9 of
the Corporations Law.
25 151. Relevant interest in, and entitlement to,
shares
(1) For the purposes of this Part, a person has a
relevant interest in a share if, and only if, the
person would be taken to have a relevant
30 interest in the share because of Division 5 of
Part 1.2 of the Corporations Law but a
person does not have a relevant interest in a
share in a corporation only because the
person has a right of pre-emption in relation
35 to that share if the corporation--
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(a) was formed by two or more persons for
the purpose of enabling those persons
to carry on an activity jointly by means
of their joint control of, or by means of
5 their ownership of shares in, that
corporation; and
(b) those persons, or persons who have
acquired some or all of the shares in
that corporation, continue to carry on
10 that activity jointly by either of those
means.
(2) For the purposes of this Part, the shares in a
corporation to which a person (being the
corporation or any other person) is entitled
15 include shares in the corporation to which
the person is entitled in accordance with
section 609 of the Corporations Law as if a
reference in that section of that Law to a
relevant interest were a reference to a
20 relevant interest to which sub-section (1)
applies.
(3) Without derogating from section 158, the
regulations may provide that relevant
interests, or particular classes of relevant
25 interests, in shares, or in particular classes of
shares, are, in such circumstances and
subject to such conditions (if any) as are
specified in the regulations, to be
disregarded for such purposes as are
30 specified in the regulations.
152. Corporations Law
A reference in this Part to the Corporations
Law is a reference to that Law as it would
apply if references in that Law to a body
35 corporate, corporation or company included
references to--
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(a) a body corporate of any kind wherever
formed or incorporated and whether
formed or incorporated under that Law
or any other law; and
5 (b) any unincorporated body, being a
society, association, company of
proprietors or other body, wherever
formed, that, under the law of its place
of formation, may sue or be sued, or
10 may hold property in the name of the
secretary or some other officer of the
society, association or body, or in the
name of any trustee or trustees; and
(c) any unincorporated body, being a
15 society, association, company of
proprietors or other body or
undertaking to which is applied, under
the laws of the place of its formation,
with or without exceptions, a law in
20 force in that place relating to
companies or corporations as if it were
a company or corporation within the
meaning of that law.
153. Unit trusts
25 If assets used in, or liabilities of, the business
carried on by a relevant corporation form
part of the trust estate of a unit trust, then, for
the purposes of this Part, units in the unit
trust are deemed to be shares in a corporation
30 the business of which is the business of the
trust estate of the unit trust.
154. Stock
If the whole or a portion of the share capital
of a corporation consists of stock, a reference
35 in this Part to a number of shares in the
corporation as a percentage is, in relation to
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an amount of stock, a reference to the
amount of stock that represents that number
of shares.
155. Controlling interest
5 For the purposes of this Part but subject to
section 158, a person has a controlling
interest in a corporation if the person--
(a) is entitled to more than 20% of the
voting shares in the corporation; or
10 (b) is entitled to shares in the corporation
that confer or, if a dividend were
declared or a distribution of profits
were made by the corporation, would
confer a right to receive the benefit of
15 more than 20% of the dividend or
distribution; or
(c) is entitled to shares in the corporation
that confer or, in the event of any other
distribution of property or rights by the
20 corporation, whether on dissolution or
otherwise, would confer an entitlement
to receive the benefit of more than 20%
of the property and rights; or
(d) is able, whether alone or in concert
25 with another, and whether by any act or
omission or otherwise, to dominate or
control--
(i) the corporation; or
(ii) the financial and operating
30 policies or management of the
corporation; or
(iii) the activities of the corporation in
the gas industry.
156. Substantial interest
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For the purpose of this Part but subject to
section 158, a person has a substantial
interest in a corporation if the person--
(a) is entitled to more than 5% of the
5 voting shares in the corporation; or
(b) is entitled to shares in the corporation
that confer or, if a dividend were
declared or a distribution of profits
were made by the corporation, would
10 confer a right to receive the benefit of
more than 5% of the dividend or
distribution; or
(c) is entitled to shares in the corporation
that confer or, in the event of any other
15 distribution of property or rights by the
corporation, whether on dissolution or
otherwise, would confer an entitlement
to receive the benefit of more than 5%
of the property and rights.
20 157. Application of Part to partnerships
(1) In this section--
"partner" includes member of an
unincorporated joint venture;
"partnership" includes unincorporated joint
25 venture.
(2) This Part applies to partnerships, and
partners, as if a partnership were a
corporation and a partner were a member of
a corporation.
30 (3) For the purposes of this Part--
(a) a partnership is deemed to be a
corporation and a person;
(b) a partner is deemed--
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(i) to be a member of the corporation;
and
(ii) to hold shares bearing the same
proportion to all the shares in the
5 corporation as the partner's right
to receive a distribution of profits
of the partnership bears to the sum
of the rights of partners to receive
such distributions;
10 (c) rights and powers of a partner in
respect of the partnership, including
voting rights and rights to dispose of
interests in the partnership or the
partnership property are deemed to be
15 rights and powers of a member of a
corporation attached to and conferred
by that member's shares in the
corporation;
(d) the committee of management (by
20 whatever named called) of a
partnership is deemed to be the board
of directors of the partnership;
(e) a meeting of the partners of a
partnership is deemed to be a general
25 meeting of a corporation.
(4) For the purposes of this Part and its
application to a partnership, "relevant
corporation" includes a partnership the
members of which are persons who are gas
30 distribution companies, gas retailers, initial
distributors, new retailers, owners or
operators of the Port Campbell facility,
owners or operators of transmission
pipelines, significant producers, TPA or
35 VENCorp.
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158. Certain shareholders agreements to be
disregarded
For the purposes of determining under this
Part whether a person has a controlling
5 interest or a substantial interest in a relevant
corporation, a relevant interest of an
associate of the person must be disregarded
if the Treasurer certifies in writing that the
Treasurer is satisfied--
10 (a) that the association arises solely under
section 12(1)(e) or section 15(1) of the
Corporations Law by virtue of
provisions of the articles of association
or other constituent documents of a
15 corporation or other entity, a
shareholders' agreement or other
consortium arrangements and that the
provisions are not unusual having
regard to conventional or usual
20 investment considerations; and
(b) that the person or any related
corporation does not have the power--
(i) to control or influence the
composition of the board of
25 directors of the relevant
corporation otherwise than by
control of the exercise at a general
meeting of the relevant
corporation of voting rights in
30 respect of particular shares or a
particular proportion of shares in
the relevant corporation or the
exercise of powers of appointment
of a specified number of directors
35 of the relevant corporation; or
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(ii) to control or influence the conduct
of affairs of the relevant
corporation otherwise than by
control of the exercise at a general
5 meeting of the relevant
corporation of voting rights in
respect of particular shares or a
particular proportion of shares in
the relevant corporation or by the
10 actions of directors appointed by
the person.
159. Certain "see-through" interests to be
disregarded
For the purpose of determining under this
15 Part whether a person has a controlling
interest or a substantial interest in a relevant
corporation, a relevant interest that the
person has solely by virtue of section 32(c)
or 33 of the Corporations Law must be
20 disregarded if the Treasurer certifies in
writing--
(a) that the Treasurer is satisfied that the
person or any related corporation of the
person does not have the power--
25 (i) to control or influence the
composition of the board of
directors of the relevant
corporation otherwise than by
controlling the exercise at a
30 general meeting of the relevant
corporation of not more than 20
per centum of the votes that may
be cast at general meetings or
exercising powers of appointment
35 of not more than one-fifth of the
directors of the relevant
corporation; or
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(ii) to control or influence the conduct
of affairs of the relevant
corporation otherwise than by
controlling the exercise at a
5 general meeting of the relevant
corporation of voting rights in
respect of not more than 20 per
centum of the voting shares or by
the actions of directors appointed
10 by it being not more than one-fifth
of the directors of the relevant
corporation; and
(b) that the Treasurer is satisfied that--
(i) in the case of determining whether
15 the person has a controlling
interest, the person does not
have--
(A) the power to exercise the
votes in respect of, or to
20 control the disposal of, more
than 20 per centum of the
voting shares in the relevant
corporation, not including a
right of pre-emption whether
25 direct or indirect in relation
to those shares; or
(B) the right to receive directly
or indirectly the benefit of
more than 20 per centum of
30 the dividends declared or
distribution of profits made
by the relevant corporation
in respect of a financial year
of the relevant corporation;
35 or
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(C) the right to receive directly
or indirectly the benefit of
more than 20 per centum of
the property and rights of the
5 relevant corporation on a
dissolution or otherwise; or
(ii) in the case of determining whether
the person has a substantial
interest, the person does not
10 have--
(A) the power to exercise the
votes in respect of, or to
control the disposal of, more
than 5 per centum of the
15 voting shares in the relevant
corporation, other than a
right of pre-emption whether
direct or indirect in relation
to those shares; or
20 (B) the right to receive directly
or indirectly the benefit of
more than 5 per centum of
the dividends declared or
distribution of profits made
25 by the relevant corporation
in respect of a financial year
of the relevant corporation;
or
(C) the right to receive directly
30 or indirectly the benefit of
more than 5 per centum of
the property and rights of the
relevant corporation on a
dissolution or otherwise.
35 160. Effect of certificate under section 158 or
159
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A certificate of the Treasurer under section
158 or 159 continues to have effect unless
the Office determines that--
(a) a change has occurred in respect of the
5 matters to which the certificate relates;
and
(b) the certificate ceases to have effect.
161. Application and construction of Part
(1) This Part (including any provision of the
10 Corporations Law referred to or applied for
the purposes of this Part) applies in relation
to any transaction, agreement, arrangement,
understanding or undertaking--
(a) whether the transaction, agreement,
15 arrangement, understanding or
undertaking is entered into, or made, in
this State or elsewhere; and
(b) whether the shares (if any) to which the
transaction, agreement, arrangement,
20 understanding or undertaking relates
are registered in this State or elsewhere;
and
(c) whether the proper law of the
transaction, agreement, arrangement,
25 understanding or undertaking in the law
of this State or not.
(2) This Part is relevant legislation for the
purposes of the Office of the Regulator-
General Act 1994.
30 Division 2--Prohibited interests
162. Prohibited interests
(1) It is unlawful for a person to hold a
prohibited interest.
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(2) A significant producer holds a prohibited
interest--
(a) if--
(i) the significant producer has a
5 controlling interest or a substantial
interest in a gas retailer; and
(ii) the gas retailer is permitted by its
licence or an Order under section
48C, to sell gas to customers other
10 than customers who are non-
franchise customers because of
section 6B(1)(b);
(b) if the significant producer has a
controlling interest or a substantial
15 interest in an initial distributor that is a
related company of a new retailer and
was such a related company when it
became a gas distribution company;
(c) if the significant producer has a
20 controlling interest in a gas distribution
company;
(d) if the significant producer has a
substantial interest in more than one
gas distribution company;
25 (e) if the significant producer--
(i) owns or operates, or controls the
operation of, the Port Campbell
facility; or
(ii) owns or operates, or controls the
30 operation of, a transmission
pipeline, other than a pipeline
constructed by or on behalf of a
person or persons that is or
includes the significant producer
35 or a body corporate that was a
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related body corporate when the
pipeline was constructed; or
(iii) has a controlling interest or a
substantial interest in a
5 corporation that owns or operates,
or controls the operation of, the
Port Campbell facility or a
transmission pipeline of the kind
referred to in sub-paragraph (ii).
10 (3) A person who has a controlling interest in a
significant producer holds a prohibited
interest--
(a) if the person--
(i) owns or operates, or controls the
15 operation of, the Port Campbell
facility; or
(ii) owns or operates, or controls the
operation of, a transmission
pipeline, other than a pipeline
20 constructed by or on behalf of a
person or persons that is or
includes the significant producer
or a body corporate that was a
related body corporate when the
25 pipeline was constructed; or
(iii) has a controlling interest or a
substantial interest in a
corporation that owns or operates,
or controls the operation of, the
30 Port Campbell facility or a
transmission pipeline of the kind
referred to in sub-paragraph (ii);
(b) if--
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(i) the person has a controlling
interest or a substantial interest in
a gas retailer; and
(ii) the gas retailer is permitted by its
5 licence or an Order under section
48C, to sell gas to customers other
than customers who are non-
franchise customers because of
section 6B(1)(b);
10 (c) if the person has a controlling interest
or a substantial interest in an initial
distributor that is a related company of
a new retailer and was such a related
company when it became a gas
15 distribution company;
(d) if the person has a controlling interest
in a gas distribution company;
(e) if the person has a substantial interest in
more than one gas distribution
20 company.
(4) Subject to sub-section (15), a gas
transmission company holds a prohibited
interest if the gas transmission company has
a controlling interest or a substantial interest
25 in a significant producer.
(5) Subject to sub-section (15), a person who has
a controlling interest in a gas transmission
company holds a prohibited interest if the
person has a controlling interest or a
30 substantial interest in a significant producer.
(6) TPA holds a prohibited interest if--
(a) TPA has a controlling interest in a new
retailer or an initial distributor; or
(b) TPA has a substantial interest in more
35 than one new retailer; or
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(c) TPA has a substantial interest in more
than one initial distributor; or
(d) TPA has a controlling interest or
substantial interest in VENCorp.
5 (7) A person who has controlling interest in
TPA holds a prohibited interest if--
(a) the person has a controlling interest in a
new retailer or an initial distributor; or
(b) the person has a substantial interest in
10 more than one new retailer; or
(c) the person has a substantial interest in
more than one initial distributor; or
(d) the person has a controlling interest or a
substantial interest in VENCorp.
15 (8) VENCorp holds a prohibited interest if it has
a controlling interest or substantial interest in
TPA.
(9) A new retailer holds a prohibited interest
if--
20 (a) the new retailer has a controlling
interest in TPA; or
(b) the new retailer has--
(i) a controlling interest in more than
one initial distributor; or
25 (ii) a controlling interest in one initial
distributor and a substantial
interest in more than one other
initial distributor; or
(iii) a substantial interest in more than
30 2 initial distributors; or
(c) the new retailer has a controlling
interest in another new retailer; or
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(d) the new retailer has a substantial
interest in more than one other new
retailer.
(10) An initial distributor holds a prohibited
5 interest if--
(a) the initial distributor has a controlling
interest in TPA; or
(b) the initial distributor has--
(i) a controlling interest in more than
10 one new retailer; or
(ii) a substantial interest in one new
retailer and a substantial interest
in more than one other new
retailer; or
15 (iii) a substantial interest in more than
2 new retailers; or
(c) the initial distributor has a controlling
interest in another initial distributor; or
(d) the initial distributor has a substantial
20 interest in more than one other initial
distributor.
(11) A person who has a controlling interest in a
new retailer holds a prohibited interest if the
person has--
25 (i) a controlling interest in TPA; or
(ii) a controlling interest in more than one
initial distributor; or
(iii) a controlling interest in one initial
distributor and a substantial interest in
30 more than one other initial distributor;
or
(iv) a substantial interest in more than 2
initial distributors.
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(12) A person who has a controlling interest in an
initial distributor holds a prohibited interest
if the person has--
(i) a controlling interest in TPA; or
5 (ii) a controlling interest in more than one
new retailer; or
(iii) a controlling interest in one new retailer
and a substantial interest in more than
one other new retailer; or
10 (iv) a substantial interest in more than 2
new retailers.
(13) A person holds a prohibited interest if the
person has--
(a) a controlling interest in more than one
15 new retailer; or
(b) a substantial interest in more than 2
new retailers; or
(c) a controlling interest in one new retailer
and a substantial interest in more than
20 one other new retailer; or
(d) a controlling interest in more than one
initial distributor; or
(e) a substantial interest in more than 2
initial distributors; or
25 (f) a controlling interest in one initial
distributor and a substantial interest in
more than one other initial distributor.
(14) A person who owns or operates, or controls
the operation of, the Port Campbell facility
30 holds a prohibited interest if the person has a
controlling interest or a substantial interest in
a significant producer.
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(15) Sub-sections (4) and (5) do not apply, in
relation to a significant producer, to a gas
transmission company or person who has a
controlling interest in a gas transmission
5 company if the gas transmission company's
pipeline was constructed by or on behalf of a
person or persons that is, or includes, the
significant producer or a body corporate that
was a related body corporate when the
10 pipeline was constructed.
163. Other provisions relating to prohibited
interests
(1) A person, not being a relevant corporation,
does not hold a prohibited interest within the
15 meaning of section 162 because the person
has a controlling interest or a substantial
interest in a relevant corporation if--
(a) ORG is satisfied that each such interest
is held only as a passive institutional
20 investment; and
(b) ORG determines in writing that the
person does not hold a prohibited
interest.
(2) At any time after a determination is made
25 under sub-section (1) in relation to a person,
ORG may, by notice in writing served on
that person, determine that circumstances
have changed so that it is no longer satisfied
as to the matters set out in sub-section (1)(a)
30 in relation to the person and that the person
has a prohibited interest within the meaning
of section 162.
(3) On and after 1 July 2002, a person does not
hold a prohibited interest within the meaning
35 of section 162 if--
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(a) ORG is satisfied that, were a person to
hold such a prohibited interest, it would
not be likely substantially to lessen
competition in a market in which gas is
5 bought and sold in Victoria, whether or
not that market extends beyond
Victoria; and
(b) ORG so determines in writing.
(4) For the purposes of this Part--
10 (a) a relevant corporation is not capable of
having a prohibited interest in itself;
and
(b) if 2 or more relevant corporations are
carrying on activities in the same
15 business undertaking, one of those
relevant corporations is not capable of
having a prohibited interest in another
of those relevant corporations.
164. Temporary exemption from prohibition
20 (1) The Treasurer may, in writing given to ORG,
declare that a specified person does not, by
reason only of having a specified controlling
interest or specified substantial interest, have
a prohibited interest during a specified
25 period ending not more than 6 months after
the day on which the declaration is made.
(2) A declaration under sub-section (1) may be
made subject to such conditions as are
specified in it.
30 (3) A declaration under this section has effect
according to its terms and ceases to have
effect--
(a) at the end of the specified period; or
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(b) upon a breach of a condition to which it
is expressed to be subject.
165. Power to require information relating to
interests
5 (1) ORG may, by notice in writing served on a
person who is, or is suspected by ORG of
being--
(a) entitled to shares in a relevant
corporation; or
10 (b) the holder of a controlling interest in a
relevant corporation; or
(c) an owner or operator of, or a controller
of the operation of, the Port Campbell
facility or a transmission pipeline--
15 require the person to furnish information
specified in the notice for the purpose of
determining whether that person or any other
person has, or is taking action to acquire, a
prohibited interest.
20 (2) A notice under sub-section (1) may require
the person on whom the notice is served or,
if that person is a corporation, 2 directors of
the corporation, to verify by statutory
declaration any information furnished in
25 compliance with the notice.
(3) If--
(a) a person on whom a notice under sub-
section (1) has been served fails to
furnish, within the time allowed in the
30 notice, the information required by the
notice, verified as required by the
notice; or
(b) information furnished by the person in
response to the notice is, in the opinion
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of ORG, by reason of anything
included in it or omitted from it, false
or misleading in a material particular--
ORG may, by reason only of that fact, by
5 notice in writing served on a person, do one
or more of the following--
(c) determine that the person is an
associate of another, or that another is
an associate of that person;
10 (d) determine that the person, or another to
whom a determination under paragraph
(c) relates, is entitled to specified shares
in a relevant corporation;
(e) determine that the voting rights
15 attaching to all or any of the shares to
which a determination under paragraph
(d) relates are suspended;
(f) determine that a person is an owner or
operator of, or a controller of the
20 operation of, the Port Campbell facility
or a transmission pipeline;
(g) determine that the person, or another
person to whom a determination under
paragraph (c) relates, has a prohibited
25 interest.
166. Disposal of interest
(1) If ORG--
(a) makes a determination under section
165(3); or
30 (b) forms the opinion--
that a person (in this section referred to as
"the offender") has a prohibited interest,
ORG may, by notice in writing served--
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(c) if the offender holds shares to which
the offender is entitled, on the offender;
or
(d) on any other person who holds shares
5 to which the offender is entitled--
determine that the offender or that other
person must dispose of the relevant shares
otherwise than to an associate of the
offender, within a period specified in the
10 notice, being not less than 3 months after
service of the notice, and that, until those
shares are disposed of, the voting rights
attaching to all or to specified shares in a
relevant corporation to which the offender is
15 entitled are suspended.
(2) For the purposes of sub-section (1), the
relevant shares that a person may be required
by a notice under that sub-section to dispose
of otherwise than to an associate of the
20 offender are--
(a) subject to paragraph (b), any shares
held by the person that would need to
be disposed of in order to cause the
offender to cease to have a prohibited
25 interest; or
(b) if, after all the shares held by the person
to which the offender is entitled were
so disposed of, the offender would
continue to have a prohibited interest,
30 the total number of those shares.
(3) For the purposes of this section a person is
not to be taken to have disposed of shares to
which an offender is entitled unless and until
the person ceases to hold the shares and the
35 offender ceases to be entitled to the shares.
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(4) If a person served with a notice of
determination under sub-section (1)
requiring the person to dispose of shares fails
to comply with the notice within the period
5 specified in the notice, the shares last
registered in the name of that person that
caused the person to have a prohibited
interest and specified by ORG by notice in
writing served on the person are, by force of
10 this sub-section, forfeited to the State.
(5) If--
(a) a person served with a notice of a
determination under sub-section (1)
requiring the person to dispose of
15 shares fails to comply with the notice
within the period specified in the
notice; and
(b) the person is a member of a partnership
and the shares are an interest in the
20 partnership; and
(c) the person is one of 2 or more persons
constituting a relevant corporation--
ORG may, by notice in writing given to the
licensee, revoke the licence (if any) held by
25 the person under this Act or make a
determination under section 167.
(6) ORG must cause written notice of--
(a) a determination under sub-section (1)
requiring a person to dispose of shares
30 in a relevant corporation; or
(b) a determination under section 165(3)(e)
that a person's voting rights are
suspended--
to be served on the relevant person.
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(7) If ORG--
(a) makes a determination under section
165(3); or
(b) forms the opinion--
5 that a person (in this section referred to as
"the offender") has a prohibited interest
because of the circumstances referred to in
section 155(d), ORG may, by notice in
writing served on the offender, determine
10 that the offender--
(c) must desist from dominating or
controlling the relevant corporation, the
financial and operating policies or
management of the corporation or the
15 activities of the corporation as a
relevant corporation; and
(d) must terminate a relevant agreement--
to the extent necessary to prevent it having a
prohibited interest, within a period specified
20 in the notice, not being less than 3 months
after service of the notice.
167. Voting rights in respect of certain shares
If written notice is served on a relevant
corporation of a declaration of ORG under
25 this Part--
(a) that a person is an associate of another;
or
(b) that a person has a prohibited interest in
a relevant corporation; or
30 (c) that voting rights are suspended--
the determination is binding and has effect
for the purposes of the application of this
Part in relation to any general meeting of the
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relevant corporation held after receipt by the
relevant corporation of the notice.
168. Revocation of licence
(1) If section 166(5) applies or if ORG makes a
5 determination under section 165(3), or forms
the opinion under section 166(1), that a
person has a prohibited interest because of
its ownership, operation or control of the
Port Campbell facility or a transmission
10 pipeline, ORG may by notice in writing
served on the person determine that the
person dispose of an interest in land or other
property or rights, or terminate a relevant
agreement, to the extent necessary to prevent
15 it having a prohibited interest within a period
specified in the notice, not being less than 3
months after the service of the notice.
(2) If a person does not comply with a
determination under sub-section (1), ORG
20 may by notice in writing given to the person,
revoke the licence (if any) held by the person
under this Act.
169. Annulment of certain resolutions
(1) If ORG is of the opinion that a resolution of
25 a general meeting of the relevant corporation
has been passed as a result of the admission
of votes that should not, by virtue of a
declaration of ORG under section 165(3) or
166(1) have been admitted, ORG may, by
30 notice in writing served on the relevant
corporation, declare the resolution to have
been (at all times) null and void.
(2) If notice of a declaration under sub-section
(1) is served on a relevant corporation, ORG
35 must, at the same time or as soon as
practicable thereafter, cause written notice of
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the declaration to be served on each person
whose votes should not, in the opinion of
ORG, have been admitted.
(3) A notice under sub-section (1) does not have
5 any effect unless it is served on the relevant
corporation within one month after the date
of the resolution to which it relates.
170. Making, review and revocation of
determination by ORG
10 (1) A determination may be made by ORG
under this Part on the basis of such
information as ORG considers sufficient in
the circumstances.
(2) A determination of ORG under this Part is
15 effective when written notice is served on
the relevant person.
(3) Notwithstanding that an application is made
under section 37 of the Office of the
Regulator-General Act 1994 for review of
20 a determination of ORG under this Part, the
determination continues to have effect
pending determination of the application
except as otherwise determined by ORG.
(4) ORG may, by notice in writing served on the
25 person on whom notice of the determination
was served, revoke or vary a determination
of ORG under this Part with effect from the
date of the determination or some other date
determined by ORG.
30 171. Appeal against determination of ORG
(1) Despite anything to the contrary in the
Office of the Regulator-General Act 1994,
a person on whom notice of a determination
of ORG is served under this Part may appeal
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to the Supreme Court against the
determination.
(2) An appeal under this section must be
instituted within 21 days after notice of the
5 determination under appeal is served on the
appellant and that period of limitation may
not be extended.
(3) The Supreme Court may, on an appeal under
this section, if satisfied that proper grounds
10 for making the determination did not exist,
quash or vary the determination, either
conditionally or unconditionally and with
effect from the date of the determination or
some other date, as the Court thinks fit, and
15 make any consequential or ancillary orders
that may be just.
(4) Notwithstanding an appeal under this
section, a determination other than--
(a) a determination under section 166(1)
20 requiring a person to dispose of shares
in the relevant corporation; or
(b) a determination under section 166(4)
that shares in the relevant corporation
are forfeited to the State; or
25 (c) a determination under section 168--
continues to have effect pending
determination of the appeal.
(5) Except as provided in this Part, a
determination of ORG under this Part may
30 not be challenged or called into question.
172. Sale of forfeited shares
(1) ORG is to sell any shares forfeited to the
State under this Part.
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(2) For the purposes of a sale of shares under
sub-section (1), ORG is not bound by any
restriction on the sale of shares whether
contained in the memorandum or articles of
5 association of the relevant corporation or in
any other document.
(3) Any money realised from the sale of
forfeited shares under this section must, after
deduction of the reasonable costs of the
10 forfeiture and sale be paid to the person from
whom the shares were forfeited.
173. Service
A notice required or authorised by this Part
to be served on a person--
15 (a) in the case of a natural person--
(i) may be served personally on the
person; or
(ii) may be sent by post to the person
at his or her last known place of
20 residence, business or
employment; or
(b) in the case of a company or other body,
may be left at, or sent by post to, its
registered office or a place of business
25 of the company or body whether within
the State or elsewhere.'.
_______________
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PART 3--AMENDMENT OF ELECTRICITY INDUSTRY
ACTS
35. Amendment of Electricity Industry Act 1993
In the Electricity Industry Act 1993--
5 (a) in section 3(1), the definition of "PoolCo" is
repealed;
(b) in section 3(1) insert--
' "VENCorp" means Victorian Energy
Networks Corporation Pty Ltd
10 A.C.N. 081 026 066;';
(c) in section 3(1), for the definitions of "VPX"
and "Victorian Power Exchange"
substitute--
' "VPX" or "Victorian Power Exchange"
15 means Victorian Energy Networks
Corporation Pty Ltd A.C.N.
081 026 066;'.
36. New Part 2A substituted
For Part 2A of the Electricity Industry Act 1993
20 substitute--
"PART 2A--ELECTRICITY TRANSMISSION
41A. Electricity transmission
(1) The Office must ensure that at all times
VENCorp or another person is appointed by
25 the Office to carry out the functions referred
to in sub-section (3).
(2) VENCorp or any other person appointed for
the purposes of this section must carry out
the functions referred to in sub-section (3) in
30 accordance with the terms of the
appointment and such directions (if any) as
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s. 37
38
Act No.
are given to VENCorp or the other person in
writing by the Office.
(3) The functions are--
(a) to plan, and direct the augmentation of,
5 the electricity transmission system;
(b) to provide information and other
services to facilitate decisions for
investment and the use of resources in
the electricity industry.
10 (4) This section has effect subject to the
National Electricity (Victoria) Law and the
National Electricity Code.".
37. Further amendments to Electricity Industry Act 1993
In the Electricity Industry Act 1993--
15 (a) in section 4(1), omit "VPX," (where twice
occurring);
(b) in section 26(4), omit "VPX,";
(c) in section 28, omit "or VPX" (wherever
occurring);
20 (d) in section 29(3), omit "VPX,";
(e) in sections 30, 31, 32, and 33, omit "or
VPX" (wherever occurring);
(f) in sections 35(13), 36(2), 36A(3) and 37(6),
omit "VPX,";
25 (g) in section 38(1)--
(i) omit "and VPX";
(ii) omit "or VPX".
38. Amendment of Electricity Industry (Further
Miscellaneous Amendment) Act 1997
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Act No.
In the Electricity Industry (Further
Miscellaneous Amendment) Act 1997--
(a) in section 2(2), omit "and Part 3";
(b) Part 3 is repealed.
5
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Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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Act No.
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