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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Gas Industry Act 2001
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 1
3. Definitions 2
4. Crown to be bound 9
5. Extra-territorial operation 9
6. Construction of Act 9
PART 2--APPLICATION OF ACT 11
Division 1--Provisions relating to Gas Companies 11
7. Application of Act and other Acts to certain gas companies 11
Division 2--Application Provisions relating to Gas and Pipelines 11
8. Declaration of gaseous fuel 11
9. Declaration of pipeline not to be pipeline 11
10. Declaration of pipeline to be, or not to be, a transmission pipeline 12
11. Gas distribution system 12
12. Gas transmission system 12
13. Connections to and adjuncts of gas distribution system 12
14. Connections to and adjuncts of gas transmission system 13
Division 3--Gas Market Provisions 14
15. Substantial degree of power 14
16. Sale of gas under MSO Rules 15
Division 4--Role of ORG and the ACCC under this Act 15
17. Application of Office of the Regulator-General Act 1994 15
18. Objectives of ORG 15
19. Conferral of functions on ACCC 16
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Clause Page
PART 3--REGULATION OF GAS INDUSTRY 17
Division 1--Regulation of Tariffs and Charges 17
20. Tariff Order 17
21. Regulation of tariffs for prescribed customers 18
Division 2--Licences 20
22. Offence to distribute or retail gas without licence 20
23. Offence to operate underground storage facility without licence 21
24. Exemptions 21
25. Application for licence 22
26. Determination of application 22
27. Grant of licence for exclusive franchise 23
28. Provisions relating to licences 25
29. Specific licence conditions 25
30. Minister to determine fees 27
31. Condition specifying industry codes, standards, rules or
guidelines 28
32. Condition relating to customer-related standards, procedures,
policies and practices 28
33. Reliability of retail supply 29
34. Supplier of last resort 30
35. Condition restricting sale to certain customers 33
36. Customer dispute resolution 34
37. Restriction on retail sale of gas by significant producers 35
38. Variation or revocation of licence 36
39. Gazettal requirement 37
40. Transfer of licence 37
Division 3--Appointment of Administrator 39
41. Appointment of administrator 39
Division 4--Terms and Conditions of Sale and Supply of Gas 39
42. Offer to domestic or small business customers 39
43. Terms and conditions of contracts for sale of gas to certain
customers 41
44. Deemed contracts with former franchise customers 43
45. Variation of contracts with former franchise customers 44
46. Deemed contracts for supply and sale for certain domestic or
small business customers 44
47. Deemed contracts for supply and sale for certain relevant
customers 45
48. Deemed distribution contracts 46
Division 5--Community Service Agreements 48
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49. Community services 48
50. Transitional provision relating to community services 48
51. ORG may determine certain matters 49
PART 4--GAS MARKET PROVISIONS 51
Division 1--Market and System Operation Rules 51
52. MSO Rules 51
53. Competition policy authorisation 52
54. Proceedings 53
55. Criminal proceedings do not lie 53
56. Civil penalty 54
57. Injunctions 55
58. Actions for damages for contravention of conduct provision 57
59. Declaratory relief 58
Division 2--Facilitation of Retail Competition 58
60. What are retail gas market rules? 59
61. Principles for retail gas market rules 60
62. Retail gas market rules--VENCorp 60
63. Retail gas market rules--gas distribution company 61
64. Conditions of licence relating to retail gas market 61
65. Approval of rules by ORG 61
66. Operation of approved rules 62
67. Amendments to approved rules 62
68. Cost recovery 62
Division 3--Costs of VENCorp for Retail Competition 63
69. Costs of VENCorp 63
PART 5--SIGNIFICANT PRODUCERS 64
Division 1--Preliminary 64
70. Conduct 64
71. References to purpose 65
72. Subsidiaries 65
73. Holding companies 67
74. Related bodies corporate 67
75. Joint ventures 68
76. Provisions of this Part are in addition to other anti-competitive
laws 68
77. Persons involved in contravention of competition rule 69
Division 2--Anti-competitive Conduct 69
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78. Anti-competitive conduct 69
79. Prohibition of anti-competitive conduct 69
Division 3--Authorisation 70
80. ORG may grant authorisation 70
81. Variation or revocation of authorisation 71
82. Application for review 71
Division 4--Competition Notices 73
83. Competition notices 73
84. Legal proceedings excluded 73
85. Competition notice to be given to significant producer 74
86. Evidentiary effect of competition notice 74
87. Notice of orders 74
88. Making of orders 75
89. Extension of time limits 75
90. Mandatory orders 76
91. Penalty orders 76
92. Reasons for orders 76
93. Enforcement of orders of ORG 76
Division 5--Appeal Tribunal 77
94. Application for review of order 77
95. Appeal tribunal 77
96. Procedure 78
97. Questions of law or procedure 78
98. Material which appeal tribunal may consider 78
99. Decision of appeal tribunal 79
100. Decision if members not unanimous 79
101. Disclosure of interests 80
102. Member of appeal tribunal becomes unavailable 80
103. ORG may make consequential orders 81
104. Appeal to Supreme Court 82
105. Operation of order that is subject to review 83
Division 6--Injunctions etc. 84
106. Injunctions 84
107. Actions for damages for contravention of competition rule 85
108. Declaratory relief 86
Division 7--Access to Information 86
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109. Power to obtain information and documents 86
110. Restriction on disclosure of confidential information 88
111. Application against disclosure notice 90
Division 8--Review of Provisions Relating to Significant Producers 91
112. Review of operation of this Part and section 37 91
Division 9--Legal Proceedings Excluded 92
113. No proceedings 92
PART 6--PROHIBITED INTERESTS 93
Division 1--Interpretation 93
114. Definitions 93
115. Relevant interest in a share 96
116. Voting power 96
117. References to Corporations Law 96
118. Unit trusts 97
119. Stock 97
120. Controlling interest in a corporation 98
121. Substantial interest in a corporation 99
122. Regulations relating to relevant interests 99
123. Certain shareholders agreements to be disregarded 99
124. Certain "see-through" interests to be disregarded 100
125. Effect of certificate under section 123 or 124 102
Division 2--Application of Part 103
126. Application of Part 103
127. Application of Part to partnerships 103
Division 3--Prohibited Interests 105
128. Prohibited interests 105
129. Other provisions relating to prohibited interests 111
130. Temporary exemption from prohibition 112
131. Power to require information relating to interests 112
132. Disposal of interest 114
133. Voting rights in respect of certain shares 117
134. Revocation of licence 117
135. Annulment of certain resolutions of relevant corporation 118
136. Making, review and revocation of determination by ORG 118
137. Appeal against determination of ORG 119
138. Sale of forfeited shares 120
139. Service 120
PART 7--GAS COMPANY PROPERTY AND WORKS 122
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Division 1--Pipelines Generally 122
140. Certain pipelines are not part of land 122
141. Agreement for operation of pipelines 122
Division 2--Compulsory Acquisition of Land and Easements 123
142. Power of gas transmission company or gas distribution company
to acquire land 123
143. Power to acquire easements 124
144. Application of other laws in relation to land vested in a gas
company 124
145. Rateability of property 126
Division 3--Easements 126
146. Making of easements in sub-divisions 126
147. Easements over lands held by Crown licensees or lessees 127
Division 4--Powers as to Works 127
148. Powers as to works etc. 127
149. Power to open and break up roads etc. 130
Division 5--Offences 131
150. Obstructing construction or operation of pipelines 131
151. Offences relating to transmission pipelines 132
152. Offences relating to gas supply 132
Division 6--General 134
153. Definition 134
154. Identity cards 134
155. Power of entry 135
156. Emergency powers 135
157. Offence to obstruct officer or employee of gas company 135
PART 8--VICTORIAN ENERGY NETWORKS CORPORATION 136
Division 1--VENCorp 136
158. Establishment 136
159. VENCorp not to represent the Crown 136
160. Functions and powers relating to gas industry 136
161. Functions and powers relating to electricity 138
162. General powers 138
163. Non-commercial functions 139
164. Delegation powers 140
Division 2--Board of Directors 140
165. Board of Directors 140
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166. Directors 141
167. Appointment of directors 141
168. Terms and conditions of appointment 141
169. Duties of directors 142
170. VENCorp or Minister may bring proceedings 142
171. Directions 143
172. Vacancies, resignations, removal from office 143
173. Proceedings of board 144
174. Resolutions without meetings 144
175. Disclosure of interests 145
176. Validity of decisions 146
177. VENCorp not to make loans to directors 147
178. Indemnity 147
179. Chief executive officer 148
Division 3--Planning, Finance and Reporting Provisions 148
180. Corporate plan 148
181. Statement of corporate intent--contents 150
182. Borrowing and investment by VENCorp 150
183. Dividends 151
184. Reports to Treasurer 151
185. Annual report 151
Division 4--Directions by VENCorp 151
186. VENCorp may give directions 151
187. Power of Minister 154
188. Protection from liability 155
189. Protection of persons executing directions 155
190. Continuing offences 155
Division 5--Appointment and Powers of VENCorp Inspectors 156
191. Inspectors 156
192. Powers of entry--enforcement 157
193. Occupier to be given copy of consent 157
194. Search warrant 158
195. Announcement before entry 159
196. Copy of warrant to be given to occupier 160
197. Offence to obstruct inspector 160
198. Police to assist inspectors 160
199. Impersonation of inspector 160
Division 6--General 160
200. Information to be provided to VENCorp 160
201. Restriction on disclosure of confidential information 161
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202. Rateability of land vested in VENCorp 162
203. Service of documents on VENCorp 162
204. Evidence of documents issued by VENCorp 163
205. Review of this Part 163
PART 9--GAS SUPPLY EMERGENCY PROVISIONS 164
Division 1--Emergency Provisions 164
206. Proclamation that this Part applies 164
207. Powers of Minister 164
208. Offence not to comply with direction etc. 168
209. Offence to obstruct a person carrying out a direction etc. 170
210. Offences by bodies corporate 170
211. Offences by partnerships or unincorporated associations 171
212. Judicial notice 172
213. Immunity from suit 172
Division 2--Enforcement 172
214. Powers of entry--enforcement 172
215. Occupier to be given copy of consent 173
216. Search warrant 173
217. Announcement before entry 174
218. Copy of warrant to be given to occupier 175
Division 3--Infringement Notices 175
219. Definition 175
220. Power to serve a notice 176
221. Form of notice 176
222. Infringement penalties 177
223. Late payment of penalty 177
224. Withdrawal of notice 177
225. Payment expiates offence 178
226. Payment not to have certain consequences 178
227. Prosecution after service of infringement notice 179
228. Enforcement of infringement penalty 179
PART 10--GENERAL 180
229. Delegation by Minister 180
230. Offences by bodies corporate 180
231. Proceedings for offences 180
232. Gas retailer not liable for failure to supply 181
233. Exemption from liability to transmit or convey gas 181
234. Evidence of ownership 182
235. Supreme Court--limitation of jurisdiction 183
236. Regulations 183
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__________________
SCHEDULE--Easements for use of gas company 186
ENDNOTES 187
INDEX 188
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541174B.A1-1/6/2001 BILL LA AS SENT 1/6/2001
PARLIAMENT OF VICTORIA
Initiated in Assembly 2 May 2001
As amended by Assembly 31 May 2001
A BILL
to regulate the gas industry and for other purposes.
Gas Industry Act 2001
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The main purpose of this Act is to regulate the gas
industry.
5 2. Commencement
(1) Section 1 and this section come into operation on
the day on which this Act receives the Royal
Assent.
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Gas Industry Act 2001
s. 3
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(2) The remaining provisions of this Act (except
section 69) come into operation on 1 September
2001.
(3) Section 69 comes into operation on a day to be
5 proclaimed.
(4) If section 69 does not come into operation before
1 July 2002, it comes into operation on that day.
3. Definitions
In this Act--
10 "ACCC" means the Australian Competition and
Consumer Commission established by
section 6A of the Trade Practices Act and
includes a member of the Commission or a
Division of the Commission performing
15 functions of the Commission;
"Access Code" means the Code within the
meaning of the Gas Pipelines Access
(Victoria) Law;
"apparatus and works" means, in relation to a
20 pipeline--
(a) apparatus for inducing or facilitating
the flow or movement of anything
through the pipeline;
(b) apparatus or structure for giving
25 protection or support to the pipeline;
(c) apparatus for transmitting information
or instruction with regard to the
operation of the pipeline;
(d) valves, valve chambers, manholes,
30 inspection pits and other similar works
annexed to or incorporated in the
course of the pipeline;
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Gas Industry Act 2001
s. 3
Act No.
(e) storage, loading and all ancillary
facilities and installations required for
the pipeline or used in connection with,
or incidental to, the pipeline;
5 (f) prime movers for the operation of any
apparatus or works mentioned in
paragraph (a), (d) or (e);
"appeal tribunal" means the appeal tribunal
referred to in section 95;
10 "civil penalty provision" means a provision of
the MSO Rules that is prescribed as a civil
penalty provision for the purposes of
Division 1 of Part 4;
"conduct provision" means a provision of the
15 MSO Rules that, under the MSO Rules, is a
conduct provision for the purposes of
Division 1 of Part 4;
"construction" includes, in relation to a pipeline,
the placing or testing of the pipeline;
20 "customer" means a person to whom a gas
company transmits, distributes or supplies
gas or provides goods or services;
"distribute", in relation to gas, means convey gas
through distribution pipelines;
25 "distribution pipeline" means a pipeline for the
conveyance of gas but does not include--
(a) a transmission pipeline;
(b) a gathering line within the meaning of
the Petroleum Act 1998;
30 "gas" means any gaseous fuel but does not
include any gaseous fuel that is declared
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Gas Industry Act 2001
s. 3
Act No.
under section 8 not to be gas for the purposes
of this Act or any provision of this Act;
"gaseous fuel" includes petrochemical feed
stock;
5 "GASCOR" has the same meaning as it has in
the Gas Industry (Residual Provisions)
Act 1994;
"gas company" means a gas distribution
company, a gas retailer or a gas transmission
10 company;
"gas distribution company" means a person
who holds a licence to provide services by
means of a distribution pipeline;
"gas distribution system" means--
15 (a) the primary distribution system; and
(b) any distribution pipeline or system of
distribution pipelines that, under
section 13(1), is an approved
distribution connection; and
20 (c) any distribution pipeline or system of
distribution pipelines that, under
section 13(2), is an approved
distribution adjunct;
"gas fitting" includes meter, pipeline, burner,
25 fitting, appliance and apparatus used in
connection with the consumption of gas;
"gas producer" means a person who carries on a
business of producing natural gas;
"gas retailer" means a person who holds a
30 licence to sell gas;
"gas transmission company" means--
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Gas Industry Act 2001
s. 3
Act No.
(a) VENCorp; or
(b) any other person who owns, operates or
provides a service by means of a
transmission pipeline;
5 "gas transmission system" means--
(a) the primary transmission system; and
(b) any transmission pipeline or system of
transmission pipelines that, under
section 14(1) is an approved
10 transmission connection; and
(c) any transmission pipeline or system of
transmission pipelines that, under
section 14(2), is an approved
transmission adjunct;
15 "GFCV" has the same meaning as it has in the
Gas Industry (Residual Provisions) Act
1994;
"GTC" has the same meaning as it has in the Gas
Industry (Residual Provisions) Act 1994;
20 "inspector", except in Part 8, means a person
appointed as an inspector under Part 5 of the
Gas Safety Act 1997;
"licence" means a licence issued under Part 3;
"licensee" means the holder of a licence issued
25 under Part 3;
"market participant" means a person who is
registered by VENCorp under the MSO
Rules as a participant;
"meter" means an instrument that measures the
30 quantity of gas passing through it;
"MSO Rules" means the rules made on
2 February 1999 under section 48N of the
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Gas Industry Act 2001
s. 3
Act No.
Gas Industry Act 1994 as those rules are
amended and in force for the time being;
"natural gas" means a substance--
(a) which is in a gaseous state at standard
5 temperature and pressure; and
(b) which consists of naturally occurring
hydrocarbons, or a naturally occurring
mixture of hydrocarbons and non-
hydrocarbons; and
10 (c) the principal constituent of which is
methane;
"operation", in relation to a pipeline, includes
the maintenance, removal and alteration of
the pipeline;
15 "ORG" means the Office of the Regulator-
General established under Part 2 of the
Office of the Regulator-General Act 1994;
"pipeline" means a pipe or system of pipes for or
incidental to the conveyance of gas and
20 includes all apparatus and works associated
with the pipe or system of pipes, and
includes a part of such a pipe or system but
does not include a pipeline or a pipeline in a
class of pipelines declared under section 9
25 not to be a pipeline for the purposes of this
Act;
"Port Campbell facility" means the underground
storage facility or facilities adapted under
petroleum leases PPL No. 1 and PPL No. 2
30 issued under the Petroleum Act 1958;
"primary distribution system" means the
system of distribution pipelines operated by
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Gas Industry Act 2001
s. 3
Act No.
GASCOR immediately before 9 December
1997, other than any part of that system to
which an Order under section 11 applies;
"primary transmission system" means the
5 system of transmission pipelines operated by
GTC immediately before 9 December 1997,
other than any part of that system to which
an Order under section 12 applies;
"regulatory provision" means a provision of the
10 MSO Rules that, under the MSO Rules, is a
regulatory provision for the purposes of
Division 1 of Part 4;
"significant producer" means a body corporate
that--
15 (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
(Submerged Lands) Act 1982 or of
20 the Petroleum (Submerged Lands) Act
1967 of the Commonwealth; and
(b) has a substantial degree of power in one
or more Victorian gas markets--
and, in Parts 3, 4 and 5, includes a body
25 corporate that is related within the meaning
of section 74 to such a holder;
"Tariff Order" means--
(a) the Victorian Gas Industry Tariff Order
1998 published in the Government
30 Gazette on 17 December 1998 as that
Order is amended and in force from
time to time;
(b) the Wimmera and Colac Gas Supply
Tariff Order 1998 published in the
35 Government Gazette on 17 December
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Gas Industry Act 2001
s. 3
Act No.
1998 as that Order is amended and in
force from time to time;
"Trade Practices Act" means the Trade
Practices Act 1974 of the Commonwealth;
5 "transmission pipeline" means--
(a) a pipeline for the conveyance of gas--
(i) in respect of which a person is, or
is deemed to be, the licensee
under the Pipelines Act 1967; and
10 (ii) that has a maximum design
pressure exceeding 1050kPa--
other than a gathering line within the
meaning of the Petroleum Act 1998; or
(b) a pipeline that is declared under
15 section 10 to be a transmission
pipeline--
but does not include a pipeline declared
under section 10 not to be a transmission
pipeline;
20 "transmit" means convey gas through a
transmission pipeline;
"underground storage facility" means a
naturally occurring underground reservoir
adapted to enable it to be used for the
25 purpose of storing natural gas;
"VENCorp" means the Victorian Energy
Networks Corporation continued under
Part 8;
"Victorian gas market" means a market in
30 which gas--
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Gas Industry Act 2001
s. 4
6
Act No.
(a) is supplied in Victoria to a gas retailer;
or
(b) is supplied to customers in Victoria--
whether or not the market extends beyond
5 Victoria.
4. Crown to be bound
This Act binds the Crown, not only in right of
Victoria but also, so far as the legislative power of
the Parliament permits, the Crown in all its other
10 capacities.
5. Extra-territorial operation
It is the intention of the Parliament that the
operation of this Act should, so far as possible,
include operation in relation to the following--
15 (a) land situated outside Victoria, whether in or
outside Australia;
(b) things situated outside Victoria, whether in
or outside Australia;
(c) acts, transactions and matters done, entered
20 into or occurring outside Victoria, whether in
or outside Australia;
(d) things, acts, transactions and matters,
(wherever situated, done, entered into or
occurring) that would, apart from this Act,
25 be governed or otherwise affected by the law
of the Commonwealth, another State, a
Territory or a foreign country.
6. Construction of Act
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This Act must be read and construed as one with
the Gas Industry (Residual Provisions) Act
1994.
_______________
5
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Gas Industry Act 2001
s. 7
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PART 2--APPLICATION OF ACT
Division 1--Provisions relating to Gas Companies
7. Application of Act and other Acts to certain gas
companies
5 (1) The Governor in Council, by Order published in
the Government Gazette, may declare that a
reference in specified provisions in Part 7 of this
Act or specified provisions in another Act to a gas
company does not include a reference to a
10 specified gas distribution company, gas retailer or
gas transmission company.
(2) A copy of an Order under sub-section (1) must be
laid before each House of Parliament on or before
the sixth sitting day after it is made.
15 (3) An Order under sub-section (1) is subject to
disallowance by a House of Parliament, and
section 23 of the Subordinate Legislation Act
1994 applies as if the Order were a statutory rule.
Division 2--Application Provisions relating to Gas and
20 Pipelines
8. Declaration of gaseous fuel
The Governor in Council, by Order published in
the Government Gazette, may declare any gaseous
fuel not to be gas for the purposes of this Act or
25 any provision of this Act.
9. Declaration of pipeline not to be pipeline
The Governor in Council, by Order published in
the Government Gazette, may declare a pipeline
or a pipeline in a class of pipelines not to be a
30 pipeline for the purposes of this Act.
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10. Declaration of pipeline to be, or not to be, a
transmission pipeline
The Governor in Council, by Order published in
the Government Gazette--
5 (a) may declare a pipeline or class of pipelines
to be a transmission pipeline for the purposes
of this Act;
(b) may declare a pipeline or class of pipelines
not to be a transmission pipeline for the
10 purposes of this Act.
11. Gas distribution system
The Governor in Council, by Order published in
the Government Gazette, may declare that a part
of the primary distribution system is deemed not
15 to be part of that system for the purposes of this
Act.
12. Gas transmission system
The Governor in Council, by Order published in
the Government Gazette, may declare that a part
20 of the primary transmission system is deemed not
to be part of that system for the purposes of this
Act.
13. Connections to and adjuncts of gas distribution
system
25 (1) VENCorp and a gas distribution company may
agree in writing that a distribution pipeline or
system of distribution pipelines owned or
operated, or to be owned or operated, by the gas
distribution company and connected, or to be
30 connected, to the gas distribution system is, or is
not, or will be, or will not be, an approved
distribution connection for the purposes of this
Act.
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s. 14
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(2) VENCorp and a gas distribution company may
agree in writing that a distribution pipeline or
system of distribution pipelines or any apparatus
or works associated with such a pipeline or system
5 owned or operated, or to be owned or operated, by
the gas distribution company and used, or to be
used, as an adjunct or enhancement of the gas
distribution system is, or is not, or will be, or will
not be, an approved distribution adjunct for the
10 purposes of this Act.
14. Connections to and adjuncts of gas transmission
system
(1) VENCorp and another gas transmission company
may agree in writing that a transmission pipeline
15 or system of transmission pipelines owned or
operated, or to be owned or operated, by the gas
transmission company and connected, or to be
connected, to the gas transmission system is, or is
not, or will be, or will not be, an approved
20 transmission connection for the purposes of this
Act.
(2) VENCorp and another gas transmission company
may agree in writing that a transmission pipeline
or system of transmission pipelines or any
25 apparatus or works associated with such a pipeline
or system owned or operated, or to be owned or
operated, by the gas transmission company and
used, or to be used, as an adjunct or enhancement
of the gas transmission system is, or is not, or will
30 be, or will not be, an approved transmission
adjunct for the purposes of this Act.
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Gas Industry Act 2001
s. 15
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Division 3--Gas Market Provisions
15. Substantial degree of power
(1) If--
(a) a body corporate that is related within the
5 meaning of section 74 to another 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
10 have, a 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 primary body
15 corporate") and 2 or more bodies corporate
each of which is, related within the meaning
of section 74 to the primary body corporate,
together have a substantial degree of power
in a Victorian gas market; or
20 (c) a body corporate ("the primary body
corporate") has more than a 20% interest in a
joint venture within the meaning of
section 75 the parties to which together in
that capacity have a substantial degree of
25 market power in a Victorian gas market--
the primary body corporate shall be taken for the
purposes of this Act to have a substantial degree
of power in that market.
(2) In determining for the purposes of this section the
30 degree of power that a body corporate or bodies
corporate has or have in a Victorian gas market,
regard shall be had to the extent to which the
conduct of the body corporate or of any of those
bodies corporate in that market is constrained by
35 the conduct of--
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(a) competitors, or potential competitors, of the
body corporate or of any of those bodies
corporate in that market; or
(b) persons to whom or from whom the body
5 corporate or any of those bodies corporate
supplies or acquires gas in that market.
(3) In this section and in the definition of "significant
producer" in section 3, a reference to power in
relation to, or to conduct in, a Victorian gas
10 market is a reference to power, or to conduct, in
that market either as a supplier or as an acquirer of
gas in that market.
16. Sale of gas under MSO Rules
In this Act, a reference to a sale of gas by retail
15 does not include a reference to a sale of gas in the
market operated by VENCorp under the MSO
Rules.
Division 4--Role of ORG and the ACCC under this Act
17. Application of Office of the Regulator-General Act
20 1994
For the purposes of the Office of the Regulator-
General Act 1994--
(a) this Act is relevant legislation; and
(b) the gas industry is a regulated industry.
25 18. Objectives of ORG
The objectives of ORG under this Act are--
(a) to facilitate and promote open, efficient and
competitive markets for and in relation to
gas and to safeguard against misuse of
30 monopoly power;
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(b) to protect the interests of consumers with
respect to gas prices and the reliability and
quality of gas supply;
(c) to facilitate the maintenance of a financially
5 viable gas supply industry.
19. Conferral of functions on ACCC
(1) The ACCC has the functions and powers
conferred or expressed to be conferred on it under
this Act, a Tariff Order or the MSO Rules.
10 (2) In addition to the powers mentioned in sub-
section (1), the ACCC has power to do all things
necessary or convenient to be done in connection
with the performance of the functions and powers
referred to in that sub-section.
15 _______________
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PART 3--REGULATION OF GAS INDUSTRY
Division 1--Regulation of Tariffs and Charges
20. Tariff Order
(1) A Tariff Order cannot be amended except as
5 provided by this section.
(2) The Governor in Council may, by Order, revoke a
Tariff Order.
(3) The Governor in Council may, by Order, amend a
Tariff Order to insert specified metering and data
10 collection and processing services as excluded
services for the purposes of the Order.
(4) The Governor in Council may, by Order, amend a
Tariff Order from time to time so as to extend the
application of the Order to additional retailers and
15 additional gas distribution companies.
(5) A Tariff Order may confer functions and powers
on the ACCC or ORG relating to the regulation of
tariffs and charges under the Order.
(6) If the provisions of a Tariff Order relating to
20 charges for connection to, and the use of, any
distribution pipeline or transmission pipeline are
inconsistent with charges specified in access
arrangements approved under the Access Code,
the provisions do not apply to the extent of the
25 inconsistency.
(7) An Order under sub-section (2), (3) or (4) must be
published in the Government Gazette.
(8) A Tariff Order has effect as from the date
specified in the Order as if the tariffs, charges and
30 other matters to which the Order applies had been
determined by ORG.
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(9) If a provision of a Tariff Order ceases to have
effect, the remaining provisions of that Order
continue to have effect, subject to that Order and
this Act, according to their tenor and so to have
5 effect, subject to that Order and this Act, as if--
(a) references in those provisions to a provision
that has ceased to have effect were a
reference to that provision as in force
immediately before it ceased to have effect;
10 and
(b) words and expressions used in those
provisions that were defined by the provision
that has ceased to have effect continue to
have the same respective meanings as before
15 the provision ceased to have effect.
21. Regulation of tariffs for prescribed customers
(1) The Governor in Council may, by Order published
in the Government Gazette, regulate, in such
manner and in relation to such period as the
20 Governor in Council thinks fit, tariffs for the sale
of gas to prescribed customers or a class of
prescribed customers.
(2) Without limiting the generality of sub-section (1),
the manner may include--
25 (a) fixing the tariff or the rate of increase or
decrease in the tariff;
(b) fixing a maximum tariff or maximum rate of
increase or minimum rate of decrease in the
maximum tariff;
30 (c) fixing an average tariff or an average rate of
increase or decrease in the average tariff;
(d) specifying policies and principles for fixing
tariffs;
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(e) specifying a tariff determined by reference to
a general price index, the cost of production,
a rate of return on assets employed or any
other specified factor;
5 (f) specifying a tariff determined by reference to
any one or more of the following--
(i) a prescribed customer or class of
prescribed customers;
(ii) a person or a class of persons
10 authorised to sell gas;
(iii) the purpose for which the gas is used;
(iv) the quantity of gas used;
(v) the period of use;
(vi) the place of supply;
15 (vii) any other specified factor relevant to
the sale of gas.
(3) An Order under sub-section (1) may direct ORG
to make a determination under the Office of the
Regulator-General Act 1994 in respect of such
20 factors and matters or in accordance with such
procedures, matters or bases as are specified in the
Order, or both.
(4) An Order under sub-section (1) has effect as from
the date specified in the Order as if the tariffs to
25 which the Order applies were prices determined
by ORG.
(5) The Governor in Council may, by Order published
in the Government Gazette, declare that a person
or class of persons specified in the Order is, for
30 the purposes of this section, a prescribed customer
or class of prescribed customers.
(6) In this section--
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"prescribed customer" means a person, or a
member of a class of persons, to whom an
Order under sub-section (5) applies.
(7) This section, and any Order made under this
5 section and in force immediately before 31 August
2004, expire on 31 August 2004.
Division 2--Licences
22. Offence to distribute or retail gas without licence
(1) A person must not provide services (other than the
10 sale of gas by retail) by means of a distribution
pipeline, either as principal or agent, unless the
person--
(a) is the holder of a licence authorising that
person to provide those services; or
15 (b) is exempt from the requirement to obtain a
licence in respect of those services because
of an Order under section 24.
Penalty: 1200 penalty units and 120 penalty
units for each day after the day on
20 which a notice of contravention of this
sub-section is served on the person by
ORG.
(2) A person must not engage in the sale of gas by
retail, either as principal or agent, unless the
25 person--
(a) is the holder of a licence authorising the sale
of gas by retail; or
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(b) is exempt from the requirement to obtain a
licence in respect of the sale of gas by retail
because of an Order under section 24.
Penalty: 1200 penalty units and 120 penalty
5 units for each day after the day on
which a notice of contravention of this
sub-section is served on the person by
ORG.
23. Offence to operate underground storage facility
10 without licence
A person must not engage in providing services as
a market participant by means of the Port
Campbell facility, either as principal or agent,
unless the person--
15 (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 obtain a
licence in respect of those services because
20 of an Order under section 24.
Penalty: 1200 penalty units and 120 penalty
units for each day after the day on
which a notice of contravention of this
section is served on the person by
25 ORG.
24. Exemptions
(1) The Governor in Council may, by Order published
in the Government Gazette, exempt a person from
the requirement to obtain a licence in respect of
30 the activity specified in the Order.
(2) An exemption may be of general or specific
application.
(3) An exemption is subject to such terms and
conditions as are specified in the Order.
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(4) An Order under sub-section (1) may confer
powers and functions on, and leave any matter to
be determined by, ORG.
25. Application for licence
5 (1) A person may apply to ORG for the issue of a
licence--
(a) authorising the person to provide services by
means of a distribution pipeline; or
(b) authorising the person to sell gas by retail; or
10 (c) authorising the person to engage in providing
services as a market participant by means of
an underground storage facility.
(2) An application must be in a form approved by
ORG and accompanied by such documents as may
15 be determined by ORG.
(3) An application must be accompanied by the
application fee (if any) fixed by ORG.
26. Determination of application
(1) ORG may grant or refuse an application for the
20 issue of a licence for any reason it considers
appropriate, having regard to the objectives
specified in section 18.
(2) ORG must publish a notice in a daily newspaper
generally circulating in Victoria--
25 (a) specifying that an application for a licence in
respect of the relevant activity has been
lodged with ORG by the person specified in
the notice; and
(b) inviting interested persons to make
30 submissions to ORG in respect of the
application within the period and in the
manner specified in the notice.
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(3) Subject to this section and any requirements
specified in regulations made for the purposes of
this section under section 236, ORG may
determine the procedures that are to apply in
5 respect of the issue of licences.
(4) ORG must notify an applicant in writing of its
decision to grant or refuse to grant the application
and, in the case of a decision to refuse to grant the
application, of the reasons for its decision.
10 27. Grant of licence for exclusive franchise
(1) ORG, under section 26, may grant an application
for a licence--
(a) to provide services by means of a
distribution pipeline in a particular area on
15 an exclusive basis; or
(b) to sell gas by retail in a particular area on an
exclusive basis.
(2) ORG, under section 38, may vary a licence to
permit the licensee--
20 (a) to provide services by means of a
distribution pipeline in a particular area on
an exclusive basis; or
(b) to sell gas by retail in a particular area on an
exclusive basis.
25 (3) ORG may only grant an application for a licence
of a kind referred to in sub-section (1) in
accordance with the criteria determined by Order
under this section for the grant of a licence.
(4) ORG may only vary a licence for a purpose
30 referred to in sub-section (2) in accordance with
the criteria determined by Order under this section
for the variation of a licence.
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(5) If--
(a) an application for a licence to provide
services by means of a distribution pipeline
is granted, in accordance with this section, in
5 relation to a particular area; or
(b) a licence is varied to permit the provision of
services by means of a distribution pipeline
in a particular area on an exclusive basis--
then for the period specified in the licence, no
10 other licensee is authorised to provide those
services in that area.
(6) If--
(a) an application for a licence to sell gas by
retail is granted in accordance with this
15 section in relation to a particular area; or
(b) a licence is varied to permit the sale of gas
by retail in a particular area on an exclusive
basis--
then for the period specified in the licence no
20 other licensee is authorised under this Act to sell
gas by retail in that area.
(7) Sub-sections (5) and (6) apply despite anything to
the contrary in any licence granted before, on or
after the commencement of this section and any
25 such licence is deemed to be modified
accordingly.
(8) The Governor in Council, by Order published in
the Government Gazette, may determine the
criteria for--
30 (a) the grant of an application for a licence of a
kind referred to in sub-section (1)(a) or (b);
or
(b) the variation of a licence of a kind referred to
in sub-section (2)(a) or (b).
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(9) The criteria specified in an Order under sub-
section (8) must not be inconsistent with any
relevant criteria contained in the Natural Gas
Pipelines Access Agreement dated 7 November
5 1997 and made between the Commonwealth, the
States of New South Wales, Victoria, Queensland,
South Australia, Western Australia and Tasmania,
and the Australian Capital Territory and the
Northern Territory as that agreement is amended
10 and in effect from time to time.
28. Provisions relating to licences
(1) A licence is to be issued for such term (if any) as
is determined by ORG and is specified in the
licence.
15 (2) A licence is subject to such conditions as are
determined by ORG.
(3) If a licence is issued to 2 or more persons for the
purpose of the carrying on by those persons of
activities authorised by the licence in partnership
20 or as an unincorporated joint venture, the licence
may include conditions relating to the carrying on
of those activities in that manner.
29. Specific licence conditions
Without limiting the generality of section 28, the
25 conditions on a licence may include provisions--
(a) requiring the licensee to pay specified fees
and charges in respect of the licence to ORG;
(b) requiring the licensee to enter into
agreements on specified terms or on terms of
30 a specified type;
(c) requiring the licensee to observe specified
Orders in Council, industry codes, standards,
rules and guidelines with such modifications
or exemptions as may be determined by
35 ORG;
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(d) in the case of a licence issued to a gas
retailer, requiring the licensee to inform
customers from time to time of the
arrangements in place or proposed to be in
5 place to allow them to elect to become a
customer of another gas retailer;
(e) in the case of a licence issued to a gas
retailer, requiring the licensee to give notice
to customers of the existence of deemed
10 contracts under sections 46 and 47 and the
methods by which those contracts may be
terminated and requiring the gas retailer to
provide cooling-off periods approved by
ORG for the termination of those contracts;
15 (f) requiring the licensee to maintain specified
accounting records and to prepare accounts
according to specified principles;
(g) specifying requirements about the ownership
of real or personal property used in or in
20 connection with the carrying on of activities
under the licence;
(h) 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
25 classes of customers, with the standards of
reliability of supply determined under
section 33;
(i) preventing the licensee from engaging in or
undertaking specified business activities;
30 (j) requiring the licensee to establish and
maintain separate accounts for specified
business activities and to keep those
activities separate from its other activities in
any manner specified in the licence;
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(k) 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;
5 (l) restricting the classes of customers to whom
the licensee may sell gas or provide services
under the licence, as the case requires;
(m) specifying methods or principles to be
applied by the licensee in determining prices
10 or charges;
(n) specifying methods or principles to be
applied in the conduct of gas retailing or the
provision of services under the licence, as
the case requires;
15 (o) specifying procedures for variation or
revocation of the licence;
(p) specifying the procedures to apply if an
administrator is appointed under section 41;
(q) requiring the licensee to provide, in the
20 manner and form determined by ORG, such
information as ORG may from time to time
require;
(r) subject to section 49, in the case of a licence
issued to a gas retailer, requiring the licensee
25 to enter into an agreement with the State for
the provision of community services;
(s) requiring the licensee to develop, issue and
comply with customer-related standards,
procedures, policies and practices (including
30 with respect to the payment of compensation
to customers).
30. Minister to determine fees
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For the purposes of section 29(a), the fees and
charges to be specified in respect of a licence are
to be determined by the Minister having regard to
the proportion of the total costs of ORG that are
5 incurred or expected to be incurred in carrying out
its functions under this Act and the Gas Pipelines
Access (Victoria) Law.
31. Condition specifying industry codes, standards, rules
or guidelines
10 (1) If a licence is subject to a condition of a kind
referred to in section 29(c), ORG--
(a) may, in accordance with procedures
specified by ORG, amend the specified
industry codes, standards, rules or
15 guidelines, or a document referred to in any
of them, for the purposes of their application
under the licence;
(b) may resolve, or seek to resolve, disputes
between the licensee and any other person
20 relating to the specified industry codes,
standards, rules or guidelines, or a document
referred to in any of them, as they apply
under the licence.
(2) If ORG amends an industry code, standard, rule or
25 guideline or a document under sub-section (1),
ORG may at the same time, in accordance with
procedures specified by ORG, amend that code,
standard, rule, guideline or document for the
purposes of their application otherwise than under
30 the licence.
32. Condition relating to customer-related standards,
procedures, policies and practices
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(1) If a licence is subject to a condition of a kind
referred to in section 29(s)--
(a) ORG must monitor the licensee's compliance
with the customer-related standards,
5 procedures, policies and practices developed
by the licensee in accordance with the
condition; and
(b) if ORG considers that any of the customer-
related standards, procedures, policies and
10 practices, or compliance by the licensee with
any of them, disadvantages, or may
disadvantage, any class of its customers, or
all of its customers, ORG may make a
determination requiring the licensee to
15 modify or revoke any part of the standards,
procedures, policies or practices that causes
the disadvantage or possible disadvantage.
(2) ORG, in making a determination under sub-
section (1)(b), must have regard to the prices,
20 risks and costs associated with or resulting from
the modification or revocation which is the
subject of the determination.
(3) ORG must not make a determination under sub-
section (1)(b) unless ORG has given the licensee
25 an opportunity to make representations on the
matter.
(4) Section 27 of the Office of the Regulator-
General Act 1994 applies to the making of a
determination under sub-section (1).
30 33. Reliability of retail supply
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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 VENCorp.
5 34. Supplier of last resort
(1) Without limiting the generality of section 28, the
conditions to which a licence to provide services
by means of a distribution pipeline or to sell gas
by retail is subject may include a requirement that,
10 in certain circumstances, the licensee, on tariffs,
terms and conditions approved by ORG, having
regard to the matters referred to in sub-section (2),
supply or sell gas to customers to whom gas is
supplied or sold under another licence (whether
15 held by that licensee or another licensee).
(2) In approving the tariffs and terms and conditions
of a requirement referred to in sub-section (1),
ORG must have regard to--
(a) the risks and costs associated with the
20 requirement; and
(b) the extent to which the licensee or another
licensee has developed systems to comply
with such a requirement; and
(c) any tariffs and terms and conditions
25 proposed by the licensee whether or not at
the request of ORG.
(3) A requirement referred to in sub-section (1) does
not apply so as to require the licensee to supply or
sell gas--
30 (a) if the licensee's licence provides for a
distribution area, outside that area; or
(b) to a customer to whom gas is supplied or
sold under another licence if the customer
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elects, in writing given to the holder of that
other licence, not to be a customer of that
other licensee for the purposes of sub-section
(1); or
5 (c) if to do so would be inconsistent with the
licensee's obligations under the Access
Code.
(4) If the conditions to which a licence of a licensee is
subject include a requirement referred to in sub-
10 section (1), the licensee is deemed to be
authorised to supply or sell gas to the extent
necessary to comply with the requirement.
(5) The obligation of a licensee ("the second
licensee") to supply or sell gas to a customer to
15 whom gas is supplied or sold under another
licence ("the first licensee") in accordance with
the requirement referred to in sub-section (1)
commences when--
(a) the first licensee's licence is suspended or
20 revoked; or
(b) the right of the first licensee to acquire gas
under the MSO Rules is suspended or
terminated--
whichever first occurs.
25 (6) The obligation of the second licensee referred to
in sub-section (5) ends--
(a) 3 months after its commencement; or
(b) when the customer advises the second
licensee that the supply or sale is no longer
30 required; or
(c) when the customer transfers to become the
customer of another licensee; or
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(d) when the customer enters into a new contract
with the second licensee for the supply or
sale of gas--
whichever first occurs.
5 (7) ORG must notify the second licensee under sub-
section (5), as soon as practicable, of the
commencement of the second licensee's obligation
under that sub-section.
(8) The tariffs and terms and conditions upon which,
10 in the circumstances referred to in sub-section (6),
a licensee will supply or sell gas to customers of
another licensee are--
(a) the tariffs and terms and conditions approved
by ORG after proposed tariffs, terms and
15 conditions have been submitted by the
licensee for approval; or
(b) if--
(i) the licensee has submitted tariffs, terms
and conditions for approval and any
20 changes proposed by ORG are not
adopted by the licensee within one
month after being proposed; or
(ii) if the licensee, after being given a least
one month's notice to submit proposed
25 tariffs, terms and conditions to ORG,
fails to comply with the request--
the tariffs, terms and conditions determined
by ORG as the approved tariffs, terms and
conditions.
30 (9) The licensee, or if ORG determines the tariffs,
terms and conditions, ORG, must cause notice of
the approved tariffs, terms and conditions to be
published in the Government Gazette.
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(10) The tariffs, terms and conditions of which notice
has been published in accordance with sub-section
(9) are binding on the licensee and the customers
to which they apply and, when the licensee is
5 acting in accordance with those tariffs, terms and
conditions, they have effect despite any agreement
or instrument to the contrary relating to the
distribution or supply, or sale of gas to those
customers.
10 (11) A licensee and a customer to whom the licensee
has an obligation under sub-section (5) to supply
or sell gas are deemed to have entered into a
contract on the relevant tariffs, terms and
conditions published under sub-section (9).
15 (12) Terms and conditions approved or determined by
ORG under this section may be varied from time
to time.
(13) This section applies to a variation under sub-
section (12) in the same manner as it applies to the
20 approval or determination of a term or condition.
(14) If a variation is approved or determined under this
section, sub-sections (9) and (10) apply to the
terms and conditions as so varied.
35. Condition restricting sale to certain customers
25 (1) A licence to sell gas by retail is deemed to include
a condition prohibiting the licensee from selling
gas by retail to persons or classes of persons
specified by Order under this section for the
period or periods specified in the Order in respect
30 of those persons.
(2) The Governor in Council may by Order published
in the Government Gazette specify persons or
classes of persons and periods for the purposes of
this section.
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(3) An Order under sub-section (2) may specify a
class of persons by reference to all or any of the
following--
(a) the person authorised to sell the gas;
5 (b) the purpose for which the gas is used;
(c) the quantity of gas used;
(d) the period of use;
(e) the place of supply;
(f) any other specified factor relevant to the sale
10 of gas.
(4) This section expires on 31 August 2004.
36. Customer dispute resolution
(1) A licence to--
(a) provide services by means of a distribution
15 pipeline; or
(b) sell gas by retail--
must be issued subject to a condition requiring the
licensee to enter into a customer dispute
resolution scheme approved by ORG.
20 (2) In approving a customer dispute resolution
scheme, ORG must have regard to--
(a) the objectives of ORG under section 18 of
this Act and under the Office of the
Regulator-General Act 1994; and
25 (b) the need to ensure that the scheme is
accessible to the licensee's customers and
that there are no cost barriers to those
customers using the scheme; and
(c) the need to ensure that the scheme is
30 independent of the members of the scheme;
and
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(d) the need for the scheme to be fair and be
seen to be fair; and
(e) the need to ensure that the scheme will
publish decisions and information about
5 complaints received by the scheme so as to
be accountable to the members of the scheme
and the customers of the scheme members;
and
(f) the need for the scheme to undertake regular
10 reviews of its performance to ensure that its
operation is efficient and effective.
(3) ORG may, in accordance with this Part, vary any
existing licence to--
(a) provide services by means of a distribution
15 pipeline; or
(b) sell gas by retail--
to include a condition of a kind referred to in sub-
section (1).
(4) ORG may in its discretion exempt a licence to sell
20 gas by retail held by a significant producer from
the requirements of sub-section (1).
37. Restriction on retail sale of gas by significant
producers
(1) Despite anything to the contrary in any licence to
25 sell gas by retail held by a significant producer,
that licence does not authorise the sale of gas from
a supply point to a person unless--
(a) the person has purchased not less than
500 000 GJ of gas from that supply point, or
30 an ancillary supply point, during the
12 months immediately preceding
1 September 1998 or the commencement
of the supply, whichever is the later; or
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(b) the supply point is new and ORG is satisfied
on reasonable grounds that the person will
purchase not less than 500 000GJ of gas
from that supply point within a period of
5 12 months during the period of 3 years next
following the commencement of supply; or
(c) the person is a person to whom a
determination of ORG under sub-section (2)
applies.
10 (2) ORG may determine that a licence referred to in
sub-section (1) may authorise the sale of gas by
retail to a person who satisfies such requirements
as to the quantity of gas purchased, or likely to be
purchased, as ORG determines, having regard to
15 the objectives specified in section 18.
(3) Nothing in this section applies to or affects the
carrying on by a person of an activity in
accordance with an exemption under section 24.
(4) In this section, "supply point" and "ancillary
20 supply point" have the same meanings as they
have in the Gas Industry (Residual Provisions)
Act 1994.
38. Variation or revocation of licence
(1) A licence or the licence conditions may be
25 varied--
(a) in accordance with the procedures specified
in the licence conditions; or
(b) by agreement between ORG and the
licensee; or
30 (c) by a notice in accordance with sub-section
(2) served on the licensee.
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(2) ORG must not vary a licence or the licence
conditions by a notice unless--
(a) ORG is satisfied that the variation is
necessary--
5 (i) having regard to the objectives
specified in section 18; or
(ii) to give effect to Division 5; and
(b) ORG has given the licensee an opportunity
to make representations on the matter.
10 (3) ORG may revoke a licence in accordance with the
procedures specified in the licence conditions.
39. Gazettal requirement
ORG must ensure that--
(a) notice of the grant of a licence including--
15 (i) the name of the licensee;
(ii) the term of the licence;
(iii) the place where a copy of the licence
may be inspected;
(b) notice of a variation or revocation under
20 section 38--
is published in the Government Gazette as soon as
possible after the grant of a licence or the
variation or revocation, as the case requires.
40. Transfer of licence
25 (1) The holder of a licence may apply to ORG for
approval to transfer the licence.
(2) An application must be in a form approved by
ORG and accompanied by such documents as may
be determined by ORG.
30 (3) An application must be accompanied by the
application fee (if any) fixed by ORG.
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(4) ORG must publish in a daily newspaper generally
circulating in Victoria a notice--
(a) specifying that an application for the transfer
of the licence has been lodged with ORG for
5 the transfer by the holder to a proposed
transferee specified in the notice; and
(b) inviting interested persons to make
submissions to ORG in respect of the
application within the period and in the
10 manner specified in the notice.
(5) Subject to this section, ORG may approve, or
refuse to approve, the application for any reason it
considers appropriate, having regard to the
objectives specified in section 18.
15 (6) ORG may determine that, upon the transfer of the
licence under this section, the conditions to which
the licence is subject are varied as determined by
ORG.
(7) Subject to this section and any requirements
20 specified in regulations made for the purposes of
this section under section 236, ORG may
determine the procedures that are to apply in
respect of the transfer of a licence.
(8) ORG must notify an applicant in writing of its
25 decision to approve or refuse to approve the
application and, in the case of a decision to refuse
to approve the application, of the reasons for its
decision.
(9) ORG must ensure that notice of the approval for
30 the transfer of a licence is published in the
Government Gazette as soon as possible after the
decision to approve the transfer is made.
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Division 3--Appointment of Administrator
41. Appointment of administrator
(1) This section applies if ORG considers that--
(a) a contravention by a licensee of the licence
5 conditions threatens the security of the gas
supply; and
(b) any other remedies to enforce compliance
are not adequate.
(2) ORG may appoint an administrator to the business
10 in respect of which the licence is issued.
(3) The administrator has such functions and powers
in relation to the business in respect of which the
licence is issued as are specified in the
appointment of the administrator.
15 (4) Unless sooner revoked by ORG, the appointment
of an administrator has effect for a period of
28 days but the appointment may be renewed for a
further period or periods, each period not
exceeding 28 days.
20 (5) The terms and conditions (including
remuneration) of appointment of the administrator
are to be determined by ORG.
Division 4--Terms and Conditions of Sale and Supply of
Gas
25 42. Offer to domestic or small business customers
(1) Without limiting the generality of section 28, the
conditions to which a licence to sell gas by retail,
being a licence under which gas may be sold to
domestic or small business customers, is subject,
30 include a condition requiring the licensee to offer
to supply and sell gas to domestic or small
business customers, subject to this section and to
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any Order in force under section 21 and to the
conditions of its licence--
(a) at tariffs determined by the licensee and
published by the licensee in the Government
5 Gazette at least 2 months before they take
effect; and
(b) on terms and conditions determined by the
licensee and approved by ORG and
published by the licensee in the Government
10 Gazette at least 2 months before they take
effect.
(2) The terms and conditions determined by the
licensee for the purposes of sub-section (1) must
not be inconsistent with the terms and conditions
15 determined by ORG under section 43(1).
(3) The tariffs determined by a licensee and published
in the Government Gazette under sub-section (1)
may be varied by notice published by the licensee
in the Government Gazette not less than 2 months
20 before the variation is to take effect.
(4) The terms and conditions determined by a licensee
and published in the Government Gazette under
sub-section (1) may, with the approval of ORG,
be varied by notice published by the licensee in
25 the Government Gazette not less than 2 months
before the variation is to take effect.
(5) The Governor in Council may, by Order published
in the Government Gazette, declare that a person
or class of persons specified in the Order is, for
30 the purposes of this section, a domestic or small
business customer or class of domestic or small
business customers.
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(6) An Order under sub-section (5) may specify a
class of persons by reference to all or any of the
following--
(a) the person authorised to sell the gas;
5 (b) the purpose for which the gas is used;
(c) the quantity of gas used;
(d) the period of use;
(e) the place of supply;
(f) any other specified factor relevant to the sale
10 of gas.
(7) An Order under sub-section (5) may confer
powers and functions on, and leave any matter to
be determined by, ORG.
(8) In this section--
15 "domestic or small business customer" means a
person, or a member of a class of persons, to
whom an Order under sub-section (5)
applies.
(9) This section expires on 31 August 2004.
20 43. Terms and conditions of contracts for sale of gas to
certain customers
(1) A term or condition in a contract for the supply or
sale of gas by a licensee to a relevant customer
(whether entered into before, on or after
25 1 September 2001) is void to the extent that it is
inconsistent with--
(a) terms and conditions determined by ORG
that--
(i) specify the circumstances in which the
30 supply of gas to premises may be
disconnected; and
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(ii) require the licensee to provide
information specified by ORG about
the rights and entitlements of
customers; and
5 (iii) specify the circumstances in which the
licensee requires access to premises of
customers for the purpose of reading
meters or otherwise; and
(iv) make provision for confidentiality of
10 customer information; and
(b) any other terms and conditions determined
by ORG and provided for in the licence of
the licensee.
(2) If a term or condition of a contract is void
15 pursuant to sub-section (1) because of an
inconsistency with a term or condition referred to
in sub-section (1)(a) or (b), that term or condition
referred to in sub-section (1)(a) or (b) is deemed
to form part of that contract in place of the void
20 term or condition.
(3) The Governor in Council may, by Order published
in the Government Gazette, declare that a person
or class of persons specified in the Order is, for
the purposes of this section, a relevant customer
25 or class of relevant customers.
(4) An Order under sub-section (3) may specify a
class of persons by reference to all or any of the
following--
(a) the person authorised to sell the gas;
30 (b) the purpose for which the gas is used;
(c) the quantity of gas used;
(d) the period of use;
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(e) the place of supply;
(f) any other specified factor relevant to the sale
of gas.
(5) An Order under sub-section (3) may confer
5 powers and functions on, and leave any matter to
be determined by, ORG.
(6) In this section--
"relevant customer" means a person, or a
member of a class of persons, to whom an
10 Order under sub-section (3) applies.
(7) This section expires on 31 August 2004.
44. Deemed contracts with former franchise customers
(1) If a person--
(a) was a franchise customer within the meaning
15 of the Gas Industry Act 1994 immediately
before 1 September 2001; and
(b) has not entered into a new contract with a
licensee which takes effect on or after that
date--
20 there is deemed to be a contract between that
person and the licensee of which the person was a
customer immediately before that date for the sale
of gas at the tariff determined by the licensee in
accordance with any Order in force under
25 section 21 or, if there is no such Order, at tariffs
determined by the licensee and published by the
licensee in the Government Gazette at least
2 months before they take effect and otherwise on
the terms and conditions applying to that licensee
30 under section 42.
(2) The deemed contract continues until--
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(a) the contract is terminated; or
(b) if the customer enters into a new contract for
the purchase of gas from the licensee in
respect of the same premises, the date of
5 taking effect of that new contract--
whichever first occurs.
(3) This section expires on 31 August 2004.
45. Variation of contracts with former franchise
customers
10 A licensee may, subject to any Order in force
under section 21, vary any tariffs determined by
the licensee under section 44 and the terms and
conditions of its contracts under section 44 by
notice published--
15 (a) in the Government Gazette; and
(b) in a newspaper circulating generally in
Victoria--
not less than 2 months before the variations take
effect but not so that the terms and conditions, as
20 varied, are inconsistent with the terms and
conditions determined by ORG under
section 43(1).
46. Deemed contracts for supply and sale for certain
domestic or small business customers
25 (1) If--
(a) a person commences to take a supply of gas
at premises from a licensee without notice
being first given to the licensee last
responsible for the supply and sale of gas to
30 those premises; and
(b) that person is a domestic or small business
customer within the meaning of section 42--
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there is deemed on the commencement of that
supply to be a contract between the licensee and
that person for the supply and sale of gas at the
tariffs and on the terms and conditions offered by
5 the licensee in accordance with section 42 for the
supply and sale of gas by the licensee to domestic
or small business customers at those premises.
(2) The deemed contract continues until--
(a) the contract is terminated; or
10 (b) if the domestic or small business customer
enters into a new contract for the purchase of
gas from the licensee in respect of the same
premises, the date of taking effect of that
new contract--
15 whichever first occurs.
(3) Sub-section (1) does not apply where the person
referred to in that sub-section commences to take
the supply of gas by fraudulent or illegal means.
47. Deemed contracts for supply and sale for certain
20 relevant customers
(1) If--
(a) a person commences to take a supply of gas
at premises from a licensee without notice
being first given to the licensee last
25 responsible for the supply and sale of gas to
those premises; and
(b) that person is a relevant customer within the
meaning of section 43--
there is deemed on the commencement of that
30 supply to be a contract between the licensee and
that person for the supply and sale of gas at the
tariffs and on the terms and conditions offered by
the licensee in accordance with section 42 for the
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supply and sale of gas by the licensee at those
premises.
(2) The deemed contract continues until--
(a) the contract is terminated; or
5 (b) if the relevant customer enters into a new
contract for the purchase of gas from the
licensee in respect of the same premises, the
date of taking effect of that new contract--
whichever first occurs.
10 (3) Sub-section (1) does not apply where the person
referred to in that sub-section commences to take
the supply of gas by fraudulent or illegal means.
48. Deemed distribution contracts
(1) A gas distribution company may from time to
15 time, subject to the conditions of its licence, give
notice of terms and conditions applying in respect
of the distribution or supply of gas by the gas
distribution company to retail customers or a class
of retail customers.
20 (2) The terms and conditions must be approved by
ORG before a notice is given under sub-section
(1).
(3) Unless ORG approves otherwise in a particular
case, the terms and conditions must not be
25 inconsistent with the Gas Distribution System
Code published by ORG on 24 February 2000 as
amended or remade from time to time.
(4) The terms and conditions must not be inconsistent
with any access arrangement applicable to the gas
30 distribution company and approved under the
Access Code.
(5) The approved terms and conditions of which
notice is given under this section--
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(a) take effect on the day on which they are
published in the Government Gazette; and
(b) are binding on the gas distribution company
and the retail customers to which they are
5 expressed to apply.
(6) A gas distribution company and a retail customer
are deemed to have entered into a contract on the
terms and conditions published under sub-section
(5) on a date determined in accordance with those
10 terms and conditions.
(7) A gas distribution company may from time to time
vary any terms and conditions of which notice is
given under this section.
(8) This section applies to a variation under sub-
15 section (6) in the same manner as it applies to the
making, approval and notification of the terms and
conditions.
(9) A gas distribution company, subject to the
conditions of its licence, and a retail customer
20 may by agreement in writing vary any of the terms
and conditions of a deemed contract under sub-
section (6).
(10) A deemed contract under sub-section (6) may be
terminated in accordance with its terms and
25 conditions.
(11) Nothing in this section affects any contract
existing immediately before the commencement
of this section between a gas distribution company
and a retail customer.
30 (12) In this section "retail customer" in relation to a
gas distribution company means a customer of a
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gas retailer to which the gas distribution company
distributes or supplies gas.
Division 5--Community Service Agreements
49. Community services
5 (1) An agreement by a gas retailer with the State for
the provision of community services is an
agreement for a term of not less than 5 years for
the provision by the gas retailer of gas to a class
of domestic customers specified by the Secretary
10 to the Department of Human Services--
(a) at such concessional rates and in such
manner and at such times as are determined
by the Secretary; and
(b) on such other terms and conditions as are
15 agreed between the retailer and the State or,
in default of agreement, as are determined by
the Secretary.
(2) In determining terms and conditions under sub-
section (1)(b), the Secretary must have regard to
20 the risks and costs associated with the obligations
imposed on the gas retailer under the agreement.
50. Transitional provision relating to community services
(1) An agreement to which this section applies that,
but for section 48TAB of the Gas Industry Act
25 1994, would have ceased to have effect on
31 August 2001 continues in force until the
expiration of the prescribed period or terminated
upon the making of a new agreement by the gas
retailer with the State for the provision of
30 community services by way of the provision of
gas to certain customers, whichever first occurs.
(2) The prescribed period is the period ending on
31 December 2001 or such other date, not later
than 31 March 2002, as is agreed between the gas
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retailer and the Secretary to the Department of
Human Services.
(3) If a new agreement is not made between the gas
retailer and the State before the expiration of the
5 prescribed period, an agreement is deemed to have
been entered into on terms and conditions
determined by the Secretary in accordance with
section 49.
(4) This section applies to an agreement in force
10 before 1 September 2001 under which a gas
retailer agrees with the State to provide certain
community services by way of the provision of
gas to customers.
51. ORG may determine certain matters
15 (1) ORG, at the request of the Secretary to the
Department of Human Services or a gas retailer,
may--
(a) determine matters referred by the Secretary
or gas retailer for determination for the
20 purposes of making an agreement referred to
in section 49 or 50; or
(b) if an agreement referred to in section 49 or
50 has been entered into or deemed to be
entered into on terms and conditions
25 determined by the Secretary under
section 49, determine matters relating to
those terms and conditions (including the
variation of any of those terms and
conditions) referred by the Secretary or gas
30 retailer for determination.
(2) A request relating to a term or condition
determined by the Secretary under section 49 must
be made within one month after notice of the
determination is given.
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(3) A determination by ORG on matters referred
under sub-section (1) is binding on the parties to
the agreement.
(4) If a determination of ORG on matters referred
5 under sub-section (1) varies a term or condition of
an agreement, that agreement is deemed to be so
varied on that determination being made.
(5) The matters which may be referred to ORG under
this section do not include--
10 (a) any matters relating to the class of domestic
customers specified by the Secretary under
section 49; or
(b) any matters determined by the Secretary
under section 49(1)(a).
15 _______________
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PART 4--GAS MARKET PROVISIONS
Division 1--Market and System Operation Rules
52. MSO Rules
(1) The MSO Rules cannot be amended except as
5 provided by this section.
(2) The purpose of the MSO Rules is the regulation
of--
(a) the operation of a market for gas;
(b) the activities of market participants in a
10 market for gas;
(c) the operation of the gas transmission system
for the purposes of--
(i) the security of the system;
(ii) the achievement of the market
15 objectives referred to in sub-section (3).
(3) The market objectives are to establish a
competitive, reliable and efficient market for
gas--
(a) in which market participants can choose with
20 whom they trade;
(b) in which third parties are granted access to
the gas transmission system;
(c) in which, to the extent practicable, the
trading of gas from different sources is not
25 differentiated;
(d) in which prices are governed as far as
practicable by commercial and market forces
rather than regulation;
(e) in which efficiency is encouraged.
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(4) The MSO Rules may confer functions and powers
on the ACCC.
(5) The Governor in Council, by Order published in
the Government Gazette, may amend the MSO
5 Rules.
(6) VENCorp, after consultation in accordance with
the MSO Rules, may amend the MSO Rules, by
notice published in the Government Gazette.
53. Competition policy authorisation
10 (1) For the purposes of Part IV of the Trade Practices
Act and of the Competition Code, the following
are specifically authorised--
(a) the making of the MSO Rules on 2 February
1999;
15 (b) the amendment of the MSO Rules, whether
under those Rules, section 48N of the Gas
Industry Act 1994 or section 52 of this Act
or otherwise;
(c) any thing done, or conduct engaged in, by
20 VENCorp under or pursuant to, or by way of
enforcement of, the MSO Rules;
(d) any thing done, or conduct engaged in by a
participant or market participant required by
the MSO Rules;
25 (e) the making of, or giving effect to, an
agreement, arrangement or understanding
made under or pursuant to the MSO Rules
and made between VENCorp and a
participant or market participant, between
30 participants, between market participants or
between participants and market participants.
(2) This section does not apply to anything done, or
conduct engaged in, on or after 1 January 2003.
(3) In this section--
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(a) "market participant" and "participant"
have the same meanings as they have in the
MSO Rules;
(b) a reference to engaging in conduct has the
5 same meaning as in section 4(2)(a) of the
Trade Practices Act.
54. Proceedings
(1) A person may not bring civil proceedings in
respect of a matter arising under this Division,
10 except in accordance with this Division.
(2) The ACCC may, in accordance with this Division,
bring civil proceedings in respect of a civil
penalty provision or a regulatory provision.
(3) The ACCC or any other person may, in
15 accordance with this Division, bring civil
proceedings in respect of a conduct provision.
(4) Nothing in this section affects the right of a
person to bring civil proceedings in respect of any
matter or thing, or seek any relief or remedy, if the
20 cause of action arises, or the relief or remedy is
sought, on grounds that do not rely on this
Division.
55. Criminal proceedings do not lie
(1) Criminal proceedings do not lie against a person
25 by reason only that the person--
(a) has contravened a provision of this Division;
(b) has attempted to contravene such a
provision;
(c) has aided, abetted, counselled or procured a
30 person to contravene such a provision;
(d) has induced, or attempted to induce, a
person, whether by threats or promises or
otherwise, to contravene such a provision;
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(e) has been in any way, directly or indirectly,
knowingly concerned in, or party to, the
contravention by a person of such a
provision; or
5 (f) has conspired with others to contravene such
a provision.
(2) Sub-section (1) does not apply in respect of a
provision of this Division for an offence against
which a penalty is prescribed by this Division.
10 56. Civil penalty
(1) The ACCC may apply to a court for an order
under this Division in respect of a contravention
by a person of a civil penalty provision or the
doing by a person of any other thing mentioned in
15 sub-section (2).
(2) If the court is satisfied that a person--
(a) has contravened a civil penalty provision; or
(b) has attempted to contravene such provision;
or
20 (c) has aided, abetted, counselled or procured a
person to contravene such a provision; or
(d) has induced, or attempted to induce, a person
whether by threats or promises or otherwise,
to contravene such a provision; or
25 (e) has been in any way, directly or indirectly,
knowingly concerned in, or party to, the
contravention by a person of such a
provision; or
(f) has conspired with others to contravene such
30 a provision--
the court may order the person to pay to the
Minister for payment into the Consolidated Fund
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such pecuniary penalty, in respect of each act or
omission by the person to which this section
applies, as the court determines to be appropriate
having regard to all relevant matters including--
5 (g) the nature and extent of the act or omission
and of any loss or damage suffered as a
result of the act or omission; and
(h) the circumstances in which the act or
omission took place; and
10 (i) whether the person has previously been
found by a court in proceedings under this
Division to have contravened a civil penalty
provision.
(3) The pecuniary penalty payable under sub-section
15 (2) must not exceed the penalty prescribed by the
regulations for the act or omission to which this
section applies.
57. Injunctions
(1) If, on an application in accordance with sub-
20 section (2), the Supreme Court is satisfied that a
person has engaged, or is proposing to engage, in
conduct that constitutes or would constitute--
(a) a contravention of a provision that, under the
MSO Rules, is a regulatory provision or
25 conduct provision of the MSO Rules; or
(b) attempting to contravene such a regulatory
provision or conduct provision--
the Court may grant an injunction in such terms as
the Court determines to be appropriate.
30 (2) An application under sub-section (1) may be
made--
(a) in the case of a regulatory provision, by the
ACCC;
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(b) in the case of a conduct provision, by the
ACCC or a market participant.
(3) If an application for an injunction under sub-
section (1) has been made the Court may, if the
5 Court determines it to be appropriate, grant an
injunction by consent of all the parties to the
proceedings, whether or not the Court is satisfied
that a person has engaged, or is proposing to
engage, in conduct of a kind mentioned in sub-
10 section (1).
(4) If in the opinion of the Court it is desirable to do
so, the Court may grant an interim injunction
pending determination of an application under
sub-section (1).
15 (5) The Court may rescind or vary an injunction
granted under sub-section (1) or (3).
(6) The power of the Court to grant an injunction
restraining a person from engaging in conduct
may be exercised--
20 (a) whether or not it appears to the Court that
the person intends to engage again, or to
continue to engage, in conduct of that kind;
and
(b) whether or not the person has previously
25 engaged in conduct of that kind; and
(c) whether or not there is an imminent danger
of substantial damage to any other person or
to property if the person engages in conduct
of that kind.
30 (7) The power of the Court to grant an injunction
requiring a person to do an act or thing may be
exercised--
(a) whether or not it appears to the Court that
the person intends to refuse or fail again, or
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to continue to refuse or fail, to do that act or
thing; and
(b) whether or not the person has previously
refused or failed to do that act or thing; and
5 (c) whether or not there is an imminent danger
of substantial damage to any other person or
to property if the person refuses or fails to do
that act or thing.
(8) If the ACCC makes an application to the Court for
10 the grant of an injunction under this section, the
Court shall not require the applicant or any other
person, as a condition of granting an interim
injunction, to give any undertakings as to
damages.
15 58. Actions for damages for contravention of conduct
provision
(1) A market participant who suffers loss or damage
by conduct of another that was done in
contravention of a conduct provision may, subject
20 to and in accordance with the MSO Rules, recover
the amount of the loss or damage by action against
that other person or against any person involved in
the contravention.
(2) An action under sub-section (1) may be
25 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 a conduct provision
is a reference to a person who--
30 (a) has aided, abetted, counselled or procured
the contravention; or
(b) has induced, whether by threats or promises
or otherwise, the contravention; or
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(c) has been in any way, directly or indirectly,
knowingly concerned in, or party to, the
contravention; or
(d) has conspired with others to effect the
5 contravention.
59. Declaratory relief
(1) The Supreme Court, on an application by a person
may, by order, declare whether or not the person
to which the application relates has contravened a
10 regulatory provision or conduct provision.
(2) An application under sub-section (1) may be
made, subject to and in accordance with the MSO
Rules--
(a) in the case of a regulatory provision, by the
15 ACCC;
(b) in the case of a conduct provision, by the
ACCC or any other person.
(3) If the order declares the person to have
contravened a regulatory provision or conduct
20 provision, the order may include one or more of
the following--
(a) a requirement that the person cease, within a
specified period, the act, activity or practice
constituting the 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;
(c) a requirement that the person implement a
30 specified program for compliance with the
MSO Rules.
Division 2--Facilitation of Retail Competition
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60. What are retail gas market rules?
(1) For the purposes of this Division retail gas market
rules are rules relating to the operation of the
retail gas market.
5 (2) Retail gas market rules may include rules relating
to--
(a) the allocation of unique identifiers for gas
metering installations;
(b) the registration of unique identifiers and gas
10 metering installations;
(c) the provision of unique identifiers and other
information contained in a register required
by rules made under paragraph (b) in relation
to unique identifiers and gas metering
15 installations;
(d) the arrangements for the transfer of
customers from one gas retailer to another
gas retailer;
(e) the provision, installation and maintenance
20 of metering installations for the purposes
of--
(i) the retail gas market; or
(ii) the settlement of any relevant
wholesale market for gas; or
25 (iii) any other financial settlement that is
regularly required in respect of the
wholesale sale of gas through a
distribution pipeline;
(f) the collection, creation, processing, storage
30 and provision of access to data for the
purposes of--
(i) the retail gas market; or
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(ii) the settlement of any relevant
wholesale market for gas; or
(iii) any other financial settlement that is
regularly required in respect of the
5 wholesale sale of gas through a
distribution pipeline.
(3) Retail gas market rules may apply, adopt or
incorporate wholly or partially or as amended by
the rules, the provisions of any document,
10 standard, rule, specification or method formulated,
issued, prescribed or published by any authority or
body whether--
(a) as formulated, issued, prescribed or
published at the time the rules are made or at
15 any time before the rules are made; or
(b) as amended from time to time.
61. Principles for retail gas market rules
(1) The Governor in Council may by Order published
in the Government Gazette determine principles to
20 be taken into account by ORG for the approval
under this Division of retail gas market rules.
(2) An Order under this section has effect from the
day specified in the Order.
62. Retail gas market rules--VENCorp
25 (1) VENCorp must develop retail gas market rules in
accordance with this Division for the gas
transmission system and the gas distribution
system.
(2) VENCorp must comply with a scheme approved
30 by ORG for the development and implementation
of the retail gas market rules.
(3) VENCorp must submit the completed retail gas
market rules to ORG for approval.
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63. Retail gas market rules--gas distribution company
(1) A gas distribution company must develop retail
gas market rules in accordance with this Division
for any part of a distribution pipeline in respect of
5 which it is a licensee except any part of a pipeline
to which the rules developed by VENCorp under
section 62 apply.
(2) A gas distribution company must comply with a
scheme approved by ORG for the development
10 and implementation of the retail gas market rules.
(3) The gas distribution company must submit the
completed retail gas market rules to ORG for
approval.
64. Conditions of licence relating to retail gas market
15 A licence is deemed to include the following
conditions--
(a) requiring the licensee to observe guidelines
issued by, or other requirements of, ORG in
connection with the transition of customers
20 to competition in the retail gas market; and
(b) requiring the licensee to participate in any
scheme or schemes approved by ORG under
sections 62 and 63; and
(c) in the case of a gas distribution company,
25 requiring the licensee to comply with
section 63 and any scheme approved by
ORG under that section.
65. Approval of rules by ORG
(1) ORG may determine to approve or not to approve
30 any retail gas market rules submitted to it under
this Division.
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(2) ORG must have regard to the principles
determined under section 61 and the objectives
specified in section 18 in determining whether or
not to approve retail gas market rules under this
5 Division.
66. Operation of approved rules
(1) Approved retail gas market rules come into effect
on the date that they are approved by ORG or a
later date specified in the approval.
10 (2) Sections 35 and 36 of the Office of the
Regulator-General Act 1994 apply to approved
retail gas market rules as if the approved rules
were a determination made by ORG under that
Act.
15 67. Amendments to approved rules
(1) Approved retail gas market rules may be amended
in accordance with the procedures set out in the
rules.
(2) An amendment to an approved retail gas market
20 rule does not take effect until it has been approved
by ORG.
(3) Section 65 applies to the approval of an
amendment to an approved retail gas market rule.
68. Cost recovery
25 (1) The Governor in Council may by Order published
in the Government Gazette--
(a) provide for the setting and regulation of the
prices, fees and charges that a gas
distribution company may charge for or in
30 connection with the implementation and
operation of approved retail gas market
rules;
(b) empower the recovery of those prices, fees
and charges from all gas retailers or a class
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or classes of gas retailers supplied by the
distribution company or all customers of a
gas retailer or a class or classes of customers
of a gas retailer so supplied.
5 (2) An Order under sub-section (1) may direct ORG
to make a determination under the Office of the
Regulator-General Act 1994 in respect of such
factors and matters or in accordance with such
procedures, matters or bases as are specified in the
10 Order, or both.
Division 3--Costs of VENCorp for Retail Competition
69. Costs of VENCorp
(1) A gas retailer must pay to VENCorp at such time
or times as VENCorp determines, such amount or
15 amounts (if any) as VENCorp determines to be
payable by that gas retailer in respect of the costs
incurred by VENCorp in relation to the
implementation and operation of, and the
provision of services in connection with,
20 arrangements for competition in the retail gas
market in Victoria.
(2) A determination may be made under sub-section
(1) in respect of costs incurred by VENCorp
before, on or after the date of the determination.
25 (3) VENCorp must not make a determination under
sub-section (1) unless it has first been approved
by ORG.
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PART 5--SIGNIFICANT PRODUCERS
Division 1--Preliminary
70. Conduct
5 In this Part--
(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,
10 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 expression
15 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 provision of, a contract or
20 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;
(c) a reference to refusing to do an act includes a
25 reference to--
(i) refraining (otherwise than
inadvertently) from doing that act; or
(ii) making it known that that act will not
be done; and
30 (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 will accept
applications, offers or proposals for the
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person to do that act or to do that act on that
condition, as the case may be.
71. References to purpose
For the purposes of this Part, a person is deemed
5 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
purpose; and
10 (b) that purpose was or is a substantial purpose.
72. Subsidiaries
(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--
15 (a) that other body corporate--
(i) controls the composition of the board of
directors of the first-mentioned body
corporate; or
(ii) is in a position to cast, or control the
20 casting of, more than 50% of the
maximum number of votes that might
be cast at a general meeting of the first-
mentioned body corporate; or
(iii) holds more than 50% of the allotted
25 share capital of the first-mentioned
body corporate (excluding any part of
that allotted share capital that carries no
right to participate beyond a specified
amount in a distribution of either
30 profits or capital); or
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(b) the first-mentioned body corporate is a
subsidiary of any body corporate that is that
other body corporate's subsidiary (including
any body corporate that is that other body
5 corporate's subsidiary by another application
or other applications of this paragraph).
(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
10 another body corporate if that other body
corporate, by the exercise of some power
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
15 the purposes of this provision that other body
corporate shall be deemed to 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
20 that other body corporate of such a power; or
(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.
(3) In determining whether a body corporate is a
25 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 exercisable by
it;
30 (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 where that
other body corporate is concerned only
35 in a fiduciary capacity); or
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(ii) by, or by a nominee for, a subsidiary of
that other body corporate, not being a
subsidiary that is concerned only in a
fiduciary capacity--
5 shall be treated as held or exercisable by that
other body corporate;
(c) any shares held or power exercisable by any
person by virtue of the provisions of any
debentures of the first-mentioned body
10 corporate, or of a trust deed for securing any
allotment of such debentures, shall be
disregarded; and
(d) any shares held or power exercisable by, or
by a nominee for, that other body corporate
15 or its subsidiary (not being held or
exercisable as mentioned in paragraph (c))
shall be treated as not held or exercisable by
that other body corporate if the ordinary
business of that other body corporate or its
20 subsidiary, as the case may be, includes 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.
25 73. Holding companies
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.
30 74. Related bodies corporate
(1) If a body corporate--
(a) is the holding company of another body
corporate; or
(b) is a subsidiary of another body corporate; or
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(c) is a subsidiary of the holding company of
another body corporate--
that first-mentioned body corporate and that other
body corporate are, for the purposes of this Part,
5 deemed to be related to each other.
(2) In proceedings under this Part it is to be
presumed, unless the contrary is established, that
bodies corporate are not, or were not at a
particular time, related to each other.
10 75. Joint ventures
(1) In this Part a reference to a joint venture is a
reference to an activity in trade or commerce--
(a) carried on jointly by 2 or more persons,
whether or not in partnership; or
15 (b) carried on by a body corporate 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 ownership of
20 shares in the capital, of that body corporate.
(2) In this Part a reference to a contract or
arrangement made or understanding arrived at, or
to a proposed contract or arrangement to be made
or proposed understanding to be arrived at, for the
25 purposes of a joint venture, in relation to a joint
venture by way of an activity carried on by a body
corporate referred to in sub-section (1)(b) includes
a reference to the constitution, rules or other
document that constitutes or constitute, or are or is
30 to constitute, that body corporate.
76. 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.
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77. Persons involved in contravention of competition rule
For the purposes of Divisions 2 and 4, a reference
to a significant producer includes a reference to a
person who--
5 (a) has aided, abetted, counselled or procured a
contravention or proposed contravention of
the competition rule; or
(b) has induced such a contravention or
proposed contravention; or
10 (c) has been in any way directly or indirectly
knowingly concerned in, or party to, such a
contravention or proposed contravention; or
(d) has conspired with others to effect such a
contravention or proposed contravention.
15 Division 2--Anti-competitive Conduct
78. Anti-competitive conduct
A significant producer engages in anti-
competitive conduct if the significant producer
discriminates among or against gas retailers in a
20 manner that has the purpose, or has or is likely to
have the effect, of substantially lessening
competition in a Victorian gas market.
79. Prohibition of anti-competitive conduct
(1) A significant producer must not engage in anti-
25 competitive conduct within the meaning of
section 78.
(2) For the purposes of this Part, the rule set out in
sub-section (1) is to be known as the competition
rule.
30 (3) Sub-section (1) does not prevent a significant
producer from engaging in conduct (within the
meaning of section 4(2) of the Trade Practices
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Act) that does not constitute a contravention of
section 45, 45B or 47 of that Act by reason that an
authorisation under that Act or under section 62O
of the Gas Industry (Residual Provisions) Act
5 1994 is in force.
Division 3--Authorisation
80. ORG may grant authorisation
(1) Subject to this section and the regulations, ORG
may, on the application of a significant
10 producer--
(a) grant an authorisation to the significant
producer and to any other person or class of
persons specified in the authorisation to
engage in conduct that, but for the
15 authorisation, might contravene the
competition rule; or
(b) refuse to grant such an authorisation.
(2) ORG must not grant an authorisation in relation to
conduct unless--
20 (a) in the opinion of ORG, the conduct would
not contravene the competition rule; and
(b) the significant producer has not commenced
to engage in the conduct.
(3) An authorisation under sub-section (1)--
25 (a) may be granted subject to such terms 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
30 producer for its decision under this section not
later than 14 days after making the decision.
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(5) While an authorisation under sub-section (1)
remains in force, section 78 does not apply to
conduct to which the authorisation applies that is
engaged in by the significant producer or by any
5 other person or class of persons specified in the
authorisation.
(6) Despite anything to the contrary in section 110,
regulations for the purposes of this section may
prescribe restrictions on the disclosure of
10 confidential information that are in addition to the
provisions of section 110.
81. Variation or revocation of authorisation
(1) If ORG is satisfied that--
(a) an application for an authorisation under this
15 Division contained material that was false or
misleading in a 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
20 or the conduct to 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.
25 (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.
82. Application for review
30 (1) If ORG--
(a) grants an authorisation subject to terms and
conditions or for a specified period or
refuses to grant an authorisation; or
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(b) varies or revokes an authorisation--
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.
5 (2) An application under sub-section (1) must be
lodged with ORG within 7 working days after the
reasons for the decision are given.
(3) The appeal tribunal may not have regard to
material other than--
10 (a) submissions and information made or
provided by the applicant to ORG before the
decision was made;
(b) information or material to which ORG had
regard before the decision was made;
15 (c) the reasons given by ORG for the making of
the decision;
(d) if the appeal tribunal gives leave--
(i) such other material relating to the
submissions; or
20 (ii) such other information--
as could not by the exercise of reasonable
skill and diligence have been or become
available to the applicant or ORG before the
making of the decision.
25 (4) The appeal tribunal must make a decision in
writing--
(a) affirming, modifying or setting aside the
decision of ORG and, for that purpose, may
exercise any of the powers and discretions
30 that ORG has and could exercise in relation
to the matter; or
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(b) remitting the matter for reconsideration by
ORG in accordance with any directions or
recommendations of the appeal tribunal.
(5) The appeal tribunal must give a copy of its written
5 decision, together with a copy of its reasons for
the decision, to the applicant and to ORG.
Division 4--Competition Notices
83. Competition notices
(1) If ORG believes on reasonable grounds that--
10 (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 written
notice--
15 (c) stating that a specified person has
contravened, or is contravening or proposing
to contravene, the competition rule; and
(d) setting out particulars of that contravention
or proposed contravention.
20 (2) A notice under sub-section (1) is to be known as a
competition notice.
84. Legal proceedings excluded
Proceedings--
(a) seeking the grant of any relief or remedy in
25 the nature of certiorari, prohibition,
mandamus or quo warranto, or the grant of a
declaration or an injunction; or
(b) seeking any order under the Administrative
Law Act 1978--
30 (whether on the ground of absence of jurisdiction
or on any other ground) may not be brought
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against any person in respect of a decision to issue
a competition notice or any act, matter or thing
incidental to or leading to the making of such a
decision.
5 85. Competition notice to be given to significant producer
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.
86. 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 established, be taken
15 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 it
20 were the original.
87. 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 ORG
25 is proposing to make under this Part.
(2) Sub-section (1) does not apply to a proposed order
under section 90 unless ORG otherwise
determines.
(3) ORG must cause a copy of the notice under sub-
30 section (1) to be publicly available.
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(4) The person to whom the notice is given and any
person who has an interest in the matter may--
(a) make any submissions to ORG on the
competition notice and on the proposed
5 orders that the person thinks fit; and
(b) provide ORG with any information in
relation to the competition notice or
proposed orders that the person thinks fit.
(5) A submission must be made and information
10 provided under sub-section (4) within 14 days
after the notice is published under sub-section (3).
88. Making of orders
(1) ORG, after considering any submissions under
section 87, may by written notice--
15 (a) make all or any of the orders referred to in
the notice under section 87; or
(b) make all or any of those orders with any
variations that ORG, after considering the
submissions, thinks fit.
20 (2) An order under sub-section (1) must be made not
earlier than 14 days and not later than 28 days
after the notice is published under section 87(3).
(3) As soon as practicable after making an order
under this section, ORG must give a copy of the
25 order to the person specified in the order.
(4) ORG must cause a copy of an order under this
section to be published in a daily newspaper
circulating generally in Victoria.
89. Extension of time limits
30 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 87 or 88 by
not more than 14 days.
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90. 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, in accordance with the
5 regulations (if any), make an order directing the
person--
(a) to cease certain conduct; or
(b) to modify certain conduct; or
(c) to engage, or refrain from engaging, in
10 certain conduct.
(2) In an order under sub-section (1), ORG may
specify terms and conditions applicable to the
subject matter of the order.
91. Penalty orders
15 (1) If ORG has issued a competition notice 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.
20 (2) In making an order under sub-section (1) in
relation to a person, ORG must have regard to any
pecuniary penalties imposed on the person under
section 76 of the Trade Practices Act.
92. Reasons for orders
25 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.
93. Enforcement of orders of ORG
An order made by ORG under this Part may be
30 enforced as if it were a judgment or order of the
Supreme Court.
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Division 5--Appeal Tribunal
94. 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
5 tribunal referred to in section 95 for a review of
any order made by ORG under this Part in relation
to the person, including, in the case of an order
under section 91, the amount of a fine.
(2) An application under sub-section (1) must be
10 lodged with ORG within 14 working days after
the reasons for making the order are given.
(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
15 notice or in making an order; or
(b) that the amount of a fine under an order
under section 91 is excessive.
95. Appeal tribunal
(1) The appeal tribunal consists of 3 persons
20 appointed by the Minister administering the
Office of the Regulator-General Act 1994, on
such terms and conditions as the Minister
determines, from the pool of persons appointed by
the Governor in Council under section 38(2) of
25 that Act or from among such other persons
eligible to be members of that pool as that
Minister determines being persons of whom--
(a) one must be a person experienced in law;
and
30 (b) another must be a person experienced in
economics.
(2) The person appointed under sub-section (1)(a)
shall be the presiding member.
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96. Procedure
(1) The regulations may regulate the procedure of the
appeal tribunal.
(2) The appeal tribunal is not bound by the rules of
5 evidence but, subject to section 97, may inform
itself in any manner it thinks fit.
(3) Subject to this Part and the regulations, the
procedure of the appeal tribunal is in its
discretion.
10 97. Questions of law or procedure
A question of law or procedure relating to or
arising out of a matter before the appeal tribunal
may be decided by the presiding member.
98. Material which appeal tribunal may consider
15 The appeal tribunal may not have regard to
material other than--
(a) submissions and information made or
provided by the applicant to ORG before the
order was made;
20 (b) information or material to which ORG had
regard before the order was made;
(c) the reasons given by ORG for the making of
the order;
(d) if the appeal tribunal gives leave--
25 (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 been or become
30 available to the applicant or ORG before the
making of the order.
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99. Decision of appeal tribunal
(1) The appeal tribunal must make a decision in
writing--
(a) affirming the order under review; or
5 (b) setting aside the order under review and
remitting the matter for reconsideration by
ORG in accordance with any directions or
recommendations of the appeal tribunal; or
(c) in the case of a review of the amount of a
10 fine under an order under section 91,
substituting a fine of an amount determined
by the appeal tribunal or remitting the matter
for reconsideration by ORG in accordance
with any directions or recommendations of
15 the appeal tribunal.
(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.
20 (3) The appeal tribunal must give a copy of its written
decision, together with a copy of its reasons for
the decision, to the applicant and to ORG.
100. Decision if members not unanimous
If the members of the appeal tribunal are divided
25 in opinion as to the decision to be made on any
question--
(a) if there is a majority of the one opinion, the
question shall be decided according to the
opinion of the majority; or
30 (b) in any other case, the question shall be
decided according to the opinion of the
presiding member.
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101. Disclosure of interests
(1) If a person is, or is to be, a member of the appeal
tribunal and the person has or acquires any
interest, pecuniary or otherwise, that could
5 conflict with the proper performance of the
functions of that person in relation to an appeal--
(a) the person must disclose the interest to the
Minister; and
(b) the person must not take part, or continue to
10 take part, in the hearing of the appeal if--
(i) the Minister gives a direction under
sub-section (2)(a); or
(ii) if the Minister has caused the interest of
the person to be disclosed to the parties
15 to the hearing, all the parties do not
consent to the person being a member
of the appeal tribunal.
(2) If the Minister receives a disclosure of an interest
under sub-section (1) or becomes aware that a
20 person is, or is to be, a member of the appeal
tribunal in relation to a hearing and that the person
has in relation to the hearing such an interest--
(a) if the Minister considers that the person
should not take part, or should not continue
25 to take part, in the hearing, the Minister must
give a direction to the person accordingly; or
(b) in any other case, the Minister must cause
the interest of the person to be disclosed to
the parties to the hearing.
30 102. Member of appeal tribunal becomes unavailable
(1) This section applies if a hearing before the appeal
tribunal has been commenced or completed by the
appeal tribunal and, before the matter has been
determined, one of the members constituting the
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tribunal has ceased to be a member of the tribunal
or has ceased to be available for the purposes of
the hearing.
(2) If the Minister is satisfied that sub-section (1)
5 applies in relation to a hearing, the Minister may
appoint a person from the pool of persons referred
to in section 95(1) to take the place of the person
referred to in sub-section (1) of this section for the
purposes of the hearing.
10 (3) If sub-section (1) applies in relation to a hearing
that has been dealt with by the appeal tribunal, the
Minister may, instead of appointing a member
under sub-section (2), direct that the
determination of the hearing be completed by the
15 appeal tribunal constituted by the remaining
members.
(4) The appeal tribunal as constituted in accordance
with any of the provisions of this section for the
purposes of a hearing may have regard to any
20 record of proceedings for the appeal tribunal as
previously constituted.
103. ORG may make consequential orders
(1) If the appeal tribunal remits a matter to ORG,
ORG may make such orders as ORG thinks fit
25 having regard to--
(a) the error or errors of fact or law 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.
30 (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
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(b) must give a copy of the order or orders,
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-
5 section (2) by not more than 14 days or, if sub-
section (4) applies, 28 days.
(4) If the appeal tribunal so determines, section 87
applies to an order made under this section as if
the receipt by ORG of a copy of the appeal
10 tribunal's decision were the issuing of a
competition notice.
104. Appeal to Supreme Court
(1) A party to a review by the appeal tribunal may
appeal to the Supreme Court--
15 (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 under
section 91, against that order.
(2) An appeal must be instituted--
20 (a) not later than the 14th day after the day on
which a decision was made under section 99
or within such longer period as the Supreme
Court (whether before or after that day)
allows; and
25 (b) subject to and in accordance with the 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--
30 (a) an order affirming, varying or setting aside
the order of ORG; or
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(b) an order affirming, varying or setting aside
the order under section 91; or
(c) an order remitting the matter to ORG for re-
consideration in accordance with any
5 directions or recommendations of the Court.
105. 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
Supreme Court from a decision of the appeal
10 tribunal does not affect the operation of the order,
or decision of the appeal tribunal, that is the
subject of the application.
(2) The appeal tribunal, on a request being made by a
party to a review before the appeal tribunal, may,
15 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.
(3) If an appeal is instituted to the Supreme Court
20 against a decision of the appeal tribunal, the
Supreme Court may, if satisfied that it is desirable
to do so, and good cause to do so has been shown,
make an order staying the operation of any or all
of--
25 (a) the decision of the appeal tribunal;
(b) the order to which the review before the
appeal tribunal related;
(c) a consequential order made by ORG under
section 103.
30 (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 or decision
under this section must have regard to the harm to
customers or any other persons that may occur
35 because of the continuation of the discrimination
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pending the outcome of the review or
determination of the appeal and any undertakings
or indemnities tendered by the person making the
application to cease the discrimination.
5 Division 6--Injunctions etc.
106. Injunctions
(1) If, on an application by a person, the Supreme
Court is satisfied that a person--
(a) has contravened, or is proposing to
10 contravene, the competition rule; or
(b) has been in any way, directly or indirectly,
knowingly concerned in, or party to, a
contravention or proposed contravention of
the competition rule; or
15 (c) has aided, abetted, counselled or procured
such a contravention; or
(d) has induced, whether by threats or promises
or otherwise, such a contravention; or
(e) has been in any way, directly or indirectly,
20 knowingly concerned in, or party to such a
contravention; or
(f) has conspired with others to effect such a
contravention--
the Court may grant an injunction in such terms as
25 the Court determines to be appropriate.
(2) If an application for an injunction under sub-
section (1) has been made the Court may, if the
Court determines it to be appropriate, grant an
injunction by consent of all the parties to the
30 proceedings, whether or not the Court is satisfied
that a person has contravened, or is proposing to
contravene the competition rule.
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(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 application under
sub-section (1).
5 (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 injunction
restraining a person from engaging in conduct
contravening the competition rule may be
10 exercised--
(a) whether or not it appears to the Court that
the person intends to contravene again, or to
continue to contravene that rule; and
(b) whether or not the person has previously
15 contravened that rule; and
(c) whether or not there is an imminent danger
of substantial damage to any other person or
to property if the person contravenes that
rule; and
20 (d) whether or not ORG has taken action under
this Part.
(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
25 applicant or any other person, as a condition of
granting an interim injunction, to give any
undertakings as to damages.
107. Actions for damages for contravention of competition
rule
30 (1) A person who suffers loss or damage by conduct
of another that was done in 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
35 contravention.
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(2) An action under sub-section (1) may be
commenced at any time within 3 years after the
date on which the cause of action accrued.
(3) A reference in sub-section (1) to a person
5 involved in a contravention of the competition
rule is a reference to a person who--
(a) has aided, abetted, counselled or procured
the contravention; or
(b) has induced, whether by threats or promises
10 or otherwise, the contravention; or
(c) has been in any way, directly or indirectly,
knowingly concerned in, or party to the
contravention; or
(d) has conspired with others to effect the
15 contravention.
108. Declaratory relief
(1) The Supreme Court, on an application by a person
may, by order, declare whether or not the person
to which the application relates has contravened
20 the competition rule.
(2) If the order declares the person to have
contravened the competition rule, the order may
include one or more of the following--
(a) a requirement that the person cease, within a
25 specified period, the act, activity or practice
constituting the contravention;
(b) a requirement that the person take such
action, or adopt such practice, as the Court
requires for remedying the contravention or
30 preventing a recurrence of the contravention.
Division 7--Access to Information
109. 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, ORG may require the person--
5 (a) to give ORG the information or document; or
(b) to appear before ORG to give any such
information or produce any such document.
(2) A requirement must be made in a written notice
that identifies the information or document and
10 that specifies--
(a) by when the requirement must be complied
with; and
(b) in what form the information or copy of the
document is to be given to ORG.
15 (3) The notice must also state that the requirement is
made under this section and must include a copy
of this section.
(4) A person must not, without lawful excuse, fail to
comply with any requirement made under this
20 section in a notice given to the person.
Penalty: 120 penalty units.
(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 person or
25 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, knowingly
give ORG information that is false or misleading.
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Penalty: 120 penalty units or imprisonment for
6 months.
(7) A person must not--
(a) threaten, intimidate or coerce another person;
5 or
(b) take, threaten to take, incite or be involved in
any action that causes another person to
suffer any loss, injury or disadvantage--
because that other person complied, or intends to
10 comply, with a requirement made under this
section.
Penalty: 120 penalty units.
(8) A person is not liable in any way for any loss,
damage or injury suffered by another person
15 because of the giving in good faith of a document
or information to ORG under this section.
(9) In this section--
"prescribed duty" means a function or power of
ORG under this Part or Part 3.
20 110. Restriction on disclosure of confidential information
(1) This section applies if information or a document
is given to ORG under section 109 or otherwise in
connection with its prescribed duties and, at the
time it is given, the person giving it states that it is
25 of a confidential or commercially-sensitive nature.
(2) ORG must not, without the consent of the person
who gave it, disclose the information or the
contents of the document to any person unless--
(a) ORG is of the opinion--
30 (i) that the disclosure of the information or
document would not cause detriment to
the person supplying it or to the person
from whom that person received it; or
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(ii) that, although the disclosure of the
information or document would cause
detriment to such a person, the public
benefit in disclosing it outweighs that
5 detriment; and
(b) ORG gives the person who supplied the
information or document a written notice--
(i) stating that ORG wishes to disclose the
information or contents of the
10 document, 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
15 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 111; and
20 (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 aware of that other
person's identity and address, ORG gives
25 that other person a written notice--
(i) containing the details required by
paragraph (b); and
(ii) stating that ORG is of the opinion
required by paragraph (a) in relation to
30 that other person and setting out
detailed reasons why it is of that
opinion; and
(iii) setting out a copy of this section and
section 111; and
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(d) an application for review is not lodged in
respect of any notice given under
paragraph (b) or (c) within the time
permitted by section 111(3).
5 (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 by ORG in
connection with the carrying out of its
10 functions; or
(b) from using information or a document for the
purposes of civil or criminal proceedings; or
(c) from supplying the information or document
to an appeal tribunal hearing an application
15 in relation to the information or document;
or
(d) from supplying the information or document
to the ACCC in relation to a possible
contravention of Part IV of the Trade
20 Practices Act or the Competition Code.
(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
25 (2)(b) or (c).
111. Application against disclosure notice
(1) A person who is given a notice under section
110(2)(b) or (c) and who is aggrieved by a
decision of ORG to disclose information or the
30 contents of a document may apply to the appeal
tribunal for a review of the decision in accordance
with this section and the regulations.
(2) An application may only be made on the ground
that--
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(a) the decision was not made in accordance
with law; or
(b) the decision is unreasonable having regard to
all relevant circumstances.
5 (3) The person must lodge notice of the application
with ORG within 7 working days after the person
is given the notice.
(4) On the hearing before the appeal tribunal, ORG
bears the onus of establishing that--
10 (a) the decision was made in accordance with
law; and
(b) the decision is reasonable having regard to
all relevant circumstances.
(5) In granting an application under this section the
15 appeal tribunal may--
(a) forbid disclosure by ORG of the information
or document that is the subject of the
application; or
(b) restrict the intended disclosure by ORG of
20 the information or document within limits
specified by the appeal tribunal.
(6) Except as otherwise provided in this section,
Division 5 and the regulations apply to an
application under this section.
25 Division 8--Review of Provisions Relating to Significant
Producers
112. Review of operation of this Part and section 37
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(1) The Minister must cause a review of the operation
of this Part and section 37 to be undertaken before
30 June 2003 by a person nominated by the
Minister.
5 (2) In undertaking the review, consideration must be
given to the question whether any or all of the
provisions of this Part or section 37 should be
repealed or amended.
(3) The person undertaking the review must report in
10 writing to the Minister on the outcome of the
review on or before 30 June 2003.
(4) The Minister must cause copies of the report
under sub-section (3) to be laid before each House
of the Parliament within 15 sitting days of the
15 House after the Minister receives the report.
Division 9--Legal Proceedings Excluded
113. No proceedings
Proceedings may not be brought in respect of a
decision or determination of ORG or of an appeal
20 tribunal or in respect of any process leading to
such a decision or determination, except as
provided by this Part.
_______________
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PART 6--PROHIBITED INTERESTS
Division 1--Interpretation
114. Definitions
In this Part--
5 "associate" has the meaning, in relation to a
person, it would have under the Corporations
Law if, in Division 2 of Part 1.2 of the
Corporations Law--
(a) for paragraphs (b) and (c) of
10 section 12(1) of that Law, there were
substituted--
"or
(b) the primary person's voting power
in a body corporate or whether the
15 primary person is in a position to
exercise certain powers in relation
to a body corporate;"; and
(b) sections 13, 14, 16(2) and 17 of that
Law were repealed;
20 "initial distributor" means--
(a) a gas distribution company that, under a
licence, provides services by means of
a distribution pipeline--
(i) to gas retailers who sell gas to
25 persons; or
(ii) to persons--
who were not non-franchise customers
(within the meaning of the Gas
Industry Act 1994) immediately
30 before 1 September 2000; or
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(b) a gas distribution company that, under a
licence, provides services by means of
a distribution pipeline--
(i) to gas retailers who sell gas to
5 persons; or
(ii) to persons--
who--
(iii) were customers of a person
referred to in paragraph (a) of the
10 definition of "new retailer"
immediately before the licence
was issued or transferred to the
gas distribution company; and
(iv) were not non-franchise customers
15 (within the meaning of the Gas
Industry Act 1994) immediately
before that licence was issued or
transferred or, if the licence was
issued or transferred on or after
20 1 September 2001, immediately
before that date;
"new retailer" means--
(a) a gas retailer that, under a licence, was
entitled immediately before 1
25 September 2000 to sell gas by retail to
persons who were not non-franchise
customers (within the meaning of the
Gas Industry Act 1994); or
(b) a gas retailer that, under a licence, sells
30 gas by retail to persons who--
(i) were customers of a person
referred to in paragraph (a)
immediately before the licence
was issued or transferred to the
35 gas retailer; and
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(ii) were not non-franchise customers
(within the meaning of the Gas
Industry Act 1994) immediately
before that licence was issued or
5 transferred or, if the licence was
issued or transferred on or after
1 September 2001, immediately
before that date;
"officer", in relation to a corporation, has the
10 same meaning as in section 9 of the
Corporations Law;
"related body corporate" has the same meaning
as in the Corporations Law;
"relevant agreement" means an agreement,
15 arrangement or understanding--
(a) whether formal or informal or partly
formal and partly informal; and
(b) whether written or oral or partly written
and partly oral; and
20 (c) whether or not having legal or equitable
force and whether or not based on legal
or equitable rights;
"relevant corporation" means gas distribution
company, gas retailer, initial distributor, new
25 retailer, owner or operator of the Port
Campbell facility, owner or operator of a
transmission pipeline, significant producer or
TSO;
"share" has the same meaning as in the
30 Corporations Law;
"TSO" means--
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(a) a body corporate that owns or operates
the whole, or the majority of, the gas
transmission system;
(b) a related body corporate of a body
5 corporate referred to in paragraph (a);
"voting share", in relation to a corporation, has
the same meaning as in section 9 of the
Corporations Law.
115. Relevant interest in a share
10 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 interest
in the share because of sections 608 and 609 of
the Corporations Law but a person does not have
15 a relevant interest in a share in a corporation only
because the person has a right of pre-emption in
relation to that share if the corporation--
(a) was formed by two or more persons for the
purpose of enabling those persons to carry
20 on an activity jointly by means of their joint
control of, or by means of 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,
25 continue to carry on that activity jointly by
either of those means.
116. Voting power
For the purposes of this Part, the voting power a
person has in a corporation is the person's voting
30 power determined in accordance with section 610
of the Corporations Law as if a reference in that
section of that Law to a relevant interest were a
reference to a relevant interest to which
section 115 applies.
35 117. References to Corporations Law
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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 corporate,
corporation or company included references to--
5 (a) a body corporate of any kind wherever
formed or incorporated and whether formed
or incorporated under that Law or any other
law; and
(b) any unincorporated body, being a society,
10 association, company of proprietors or other
body, wherever formed, that, under the law
of its place of formation, may sue or be sued,
or may hold property in the name of the
secretary or some other officer of the society,
15 association or body, or in the name of any
trustee or trustees; and
(c) any unincorporated body, being a society,
association, company of proprietors or other
body or undertaking to which is applied,
20 under the laws of the place of its formation,
with or without exceptions, a law in force in
that place relating to companies or
corporations as if it were a company or
corporation within the meaning of that law.
25 118. Unit trusts
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
30 deemed to be shares in a relevant corporation the
business of which is the business of the trust
estate of the unit trust.
119. Stock
If the whole or a portion of the share capital of a
35 corporation consists of stock, a reference in this
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Part to a number of shares in the corporation as a
percentage is, in relation to an amount of stock, a
reference to the amount of stock that represents
that number of shares.
5 120. Controlling interest in a corporation
For the purposes of this Part but subject to
sections 123 and 124, a person has a controlling
interest in a corporation if--
(a) the person's voting power in the corporation
10 is more than 20%; or
(b) the person and the person's associates have
relevant interests in shares in the corporation
that confer or, if a dividend were declared or
a distribution of profits were made by the
15 corporation would confer, a right to receive
the benefit of more than 20% of the dividend
or distribution; or
(c) the person and the person's associates have
relevant interests in shares in the corporation
20 that confer or, in the event of any other
distribution of property or rights by the
corporation (whether on dissolution or
otherwise) would confer, a right to receive
the benefit of more than 20% of the property
25 and rights; or
(d) the person is able, whether alone or in
concert with another, and whether by any act
or omission or otherwise, to dominate or
control--
30 (i) the corporation; or
(ii) the financial and operating policies or
management of the corporation; or
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(iii) the activities of the corporation in the
gas industry.
121. Substantial interest in a corporation
For the purpose of this Part but subject to sections
5 123 and 124, a person has a substantial interest in
a corporation if--
(a) the person's voting power in the corporation
is more than 5%; or
(b) the person and the person's associates have
10 relevant interests in 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 more than 5% of the dividend
15 or distribution; or
(c) the person and the person's associates have
relevant interests in 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, a right to receive
the benefit of more than 5% of the property
and rights.
122. Regulations relating to relevant interests
25 Without derogating from sections 123 and 124,
the regulations may provide that relevant interests,
or particular classes of relevant interests, in
shares, or in particular classes of shares, are, in
such circumstances and subject to such conditions
30 (if any) as are specified in the regulations, to be
disregarded for such purposes as are specified in
the regulations.
123. Certain shareholders agreements to be disregarded
For the purposes of determining under this Part
35 whether a person has a controlling interest or a
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substantial interest in a relevant corporation, a
relevant interest of an associate of the person must
be disregarded if ORG certifies in writing that
ORG is satisfied--
5 (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 constitution or other constituent
documents of a corporation or other entity, a
10 shareholders' agreement or other consortium
arrangements and that the provisions are not
unusual having regard to conventional or
usual investment considerations; and
(b) that the person or any related corporation
15 does not have the power--
(i) to control or influence the composition
of the board of directors of the relevant
corporation otherwise than by control
of the exercise at a general meeting of
20 the relevant corporation of voting rights
in respect of particular shares or a
particular proportion of shares in the
relevant corporation or the exercise of
powers of appointment of a specified
25 number of directors of the relevant
corporation; or
(ii) to control or influence the conduct of
affairs of the relevant corporation
otherwise than by control of the
30 exercise at a general 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 actions
35 of directors appointed by the person.
124. Certain "see-through" interests to be disregarded
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For the purpose of determining under this 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
5 virtue of section 608(3) of the Corporations Law
must be disregarded if ORG certifies in writing--
(a) that ORG is satisfied that the person or any
related corporation of the person does not
have the power--
10 (i) to control or influence the composition
of the board of directors of the relevant
corporation otherwise than by having
voting power in the relevant
corporation of not more than 20% or
15 exercising powers of appointment of
not more than one-fifth of the directors
of the relevant corporation; or
(ii) to control or influence the conduct of
affairs of the relevant corporation
20 otherwise than by having voting power
in the relevant corporation of not more
than 20% or by the actions of directors
appointed by it being not more than
one-fifth of the directors of the relevant
25 corporation; and
(b) in the case of determining whether the
person has a controlling interest, that ORG is
satisfied that the person does not have--
(i) voting power of more than 20% in the
30 relevant corporation or the power to
control the disposal of more than 20%
of the voting shares in the relevant
corporation, not including a right of
pre-emption whether direct or indirect
35 in relation to those shares; or
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(ii) the right to receive directly or indirectly
the benefit of more than 20% of the
dividends declared or distribution of
profits made by the relevant
5 corporation in respect of a financial
year of the relevant corporation; or
(iii) the right to receive directly or indirectly
the benefit of more than 20% of the
property and rights of the relevant
10 corporation on a dissolution or
otherwise; or
(c) in the case of determining whether the
person has a substantial interest, that ORG is
satisfied that the person does not have--
15 (i) voting power of more than 20% in the
relevant corporation or the power to
control the disposal of more than 5% of
the voting shares in the relevant
corporation, not including a right of
20 pre-emption whether direct or indirect
in relation to those shares; or
(ii) the right to receive directly or indirectly
the benefit of more than 5% of the
dividends declared or distribution of
25 profits made by the relevant
corporation in respect of a financial
year of the relevant corporation; or
(iii) the right to receive directly or indirectly
the benefit of more than 5% of the
30 property and rights of the relevant
corporation on a dissolution or
otherwise.
125. Effect of certificate under section 123 or 124
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A certificate of ORG under section 123 or 124
continues to have effect unless ORG 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.
Division 2--Application of Part
126. Application of Part
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, understanding or
undertaking in the law of this State or not.
25 127. Application of Part to partnerships
(1) In this section--
"partner" includes member of an unincorporated
joint venture;
"partnership" includes unincorporated joint
30 venture.
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(2) This Part applies to partnerships, and partners, as
if a partnership were a corporation and a partner
were a member of a corporation.
(3) For the purposes of this Part--
5 (a) a partnership is deemed to be a corporation
and a person;
(b) a partner is deemed--
(i) to be a member of the corporation; and
(ii) to hold shares bearing the same
10 proportion to all the shares in the
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
15 distributions;
(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
20 deemed to be 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 whatever
named called) of a partnership is deemed to
25 be the board of directors of the partnership;
(e) a meeting of the partners of a partnership is
deemed to be a general meeting of a
corporation.
(4) For the purposes of this Part and its application to
30 a partnership, "relevant corporation" includes a
partnership the members of which are persons
who are gas distribution companies, gas retailers,
initial distributors, new retailers, owners or
operators of the Port Campbell facility, owners or
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operators of transmission pipelines, significant
producers or TSO.
Division 3--Prohibited Interests
128. Prohibited interests
5 (1) It is unlawful for a person to hold a prohibited
interest.
(2) A significant producer holds a prohibited
interest--
(a) if--
10 (i) the significant producer has a
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 24 to
15 sell gas to customers other than
customers to whom the significant
producer could sell gas by retail in
accordance with section 37;
(b) if the significant producer has a controlling
20 interest or a substantial interest in an initial
distributor that is a related body corporate of
a new retailer and was such a related body
corporate when it became a gas distribution
company;
25 (c) if the significant producer has a controlling
interest in a gas distribution company;
(d) if the significant producer has a substantial
interest in more than one gas distribution
company;
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(e) if the significant producer--
(i) owns or operates, or controls the
operation of, the Port Campbell facility;
or
5 (ii) owns or operates, or controls the
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 or a
10 body corporate that was a related body
corporate when the pipeline was
constructed; or
(iii) has a controlling interest or a
substantial interest in a corporation that
15 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).
(3) A person who has a controlling interest in a
20 significant producer holds a prohibited interest--
(a) if the person--
(i) owns or operates, or controls the
operation of, the Port Campbell facility;
or
25 (ii) owns or operates, or controls the
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 or a
30 body corporate that was a related body
corporate when the pipeline was
constructed; or
(iii) has a controlling interest or a
substantial interest in a corporation that
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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);
5 (b) if--
(i) the person has a 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 24 to
10 sell gas to customers other than
customers to whom the significant
producer could sell gas by retail in
accordance with section 37;
(c) if the person has a controlling interest or a
15 substantial interest in an initial distributor
that is a related body corporate of a new
retailer and was such a related body
corporate when it became a gas distribution
company;
20 (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 company.
(4) Subject to sub-section (14), a gas transmission
25 company holds a prohibited interest if the gas
transmission company has a controlling interest or
a substantial interest in a significant producer.
(5) Subject to sub-section (14), a person who has a
controlling interest in a gas transmission company
30 holds a prohibited interest if the person has a
controlling interest or a substantial interest in a
significant producer.
(6) TSO holds a prohibited interest if--
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(a) TSO has a controlling interest in a new
retailer or an initial distributor; or
(b) TSO has a substantial interest in more than
one new retailer; or
5 (c) TSO has a substantial interest in more than
one initial distributor.
(7) A person who has a controlling interest in TSO
holds a prohibited interest if--
(a) the person has a controlling interest in a new
10 retailer or an initial distributor; or
(b) the person has a substantial interest in more
than one new retailer; or
(c) the person has a substantial interest in more
than one initial distributor.
15 (8) A new retailer holds a prohibited interest if--
(a) the new retailer has a controlling interest in
TSO; or
(b) the new retailer has--
(i) a controlling interest in more than one
20 initial distributor; or
(ii) a controlling interest in one initial
distributor and a substantial interest in
more than one other initial distributor;
or
25 (iii) a substantial interest in more than
2 initial distributors; or
(c) the new retailer has a controlling interest in
another new retailer; or
(d) the new retailer has a substantial interest in
30 more than one other new retailer.
(9) An initial distributor holds a prohibited interest
if--
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(a) the initial distributor has a controlling
interest in TSO; or
(b) the initial distributor has--
(i) a controlling interest in more than one
5 new retailer; or
(ii) a substantial interest in one new retailer
and a substantial interest in more than
one other new retailer; or
(iii) a substantial interest in more than 2
10 new retailers; or
(c) the initial distributor has a controlling
interest in another initial distributor; or
(d) the initial distributor has a substantial
interest in more than one other initial
15 distributor.
(10) A person who has a controlling interest in a new
retailer holds a prohibited interest if the person
has--
(a) a controlling interest in TSO; or
20 (b) a controlling interest in more than one initial
distributor; or
(c) a controlling interest in one initial distributor
and a substantial interest in more than one
other initial distributor; or
25 (d) a substantial interest in more than 2 initial
distributors.
(11) A person who has a controlling interest in an
initial distributor holds a prohibited interest if the
person has--
30 (a) a controlling interest in TSO; or
(b) a controlling interest in more than one new
retailer; or
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(c) a controlling interest in one new retailer and
a substantial interest in more than one other
new retailer; or
(d) a substantial interest in more than 2 new
5 retailers.
(12) A person holds a prohibited interest if the person
has--
(a) a controlling interest in more than one new
retailer; or
10 (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 one other
new retailer; or
15 (d) a controlling interest in more than one initial
distributor; or
(e) a substantial interest in more than 2 initial
distributors; or
(f) a controlling interest in one initial distributor
20 and a substantial interest in more than one
other initial distributor.
(13) A person who owns or operates, or controls the
operation of, the Port Campbell facility holds a
prohibited interest if the person has a controlling
25 interest or a substantial interest in a significant
producer.
(14) 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
30 in a gas transmission 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
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corporate that was a related body corporate when
the pipeline was constructed.
129. Other provisions relating to prohibited interests
(1) A person, not being a relevant corporation, does
5 not hold a prohibited interest within the meaning
of section 128 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
10 held only as a passive institutional
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 under
15 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) in relation to the person and that
20 the person has a prohibited interest within the
meaning of section 128.
(3) On and after 1 July 2002, a person does not hold
a prohibited interest within the meaning of
section 128 if--
25 (a) the prohibited interest arises as a result of an
acquisition referred to in section 88(9)(a) or
(b) of the Trade Practices Act; and
(b) either--
(i) the acquisition was authorised under
30 the Trade Practices Act; or
(ii) ORG has determined that it is satisfied
that the ACCC has considered the
acquisition and that the ACCC has
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notified the person that it does not
intend to take action in relation to the
acquisition under section 50 of that Act.
(4) For the purposes of this Part--
5 (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 business
undertaking, one of those relevant
10 corporations is not capable of having a
prohibited interest in another of those
relevant corporations.
130. Temporary exemption from prohibition
(1) ORG may, by notice published in the Government
15 Gazette, 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 period
ending not more than 6 months after the day on
20 which the declaration is made.
(2) A declaration under sub-section (1) may be made
subject to such conditions as are specified in it.
(3) A declaration under this section has effect
according to its terms and ceases to have effect--
25 (a) at the end of the specified period; or
(b) upon a breach of a condition to which it is
expressed to be subject.
(4) Only one declaration may be made under this
section in respect of a specified controlling
30 interest or a specified substantial interest.
131. Power to require information relating to interests
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(1) ORG may, by notice in writing served on a person
who is, or is suspected by ORG of--
(a) having a relevant interest in shares in a
relevant corporation; or
5 (b) being the holder of a controlling interest or
substantial interest in a relevant corporation;
or
(c) being an owner or operator of, or a controller
of the operation of, the Port Campbell
10 facility or a transmission pipeline--
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.
15 (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 compliance with the
20 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 notice, the
25 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 of
ORG, by reason of anything included in it or
30 omitted from it, false or misleading in a
material particular--
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ORG may, by reason only of that fact, by notice in
writing served on a person, do one or more of the
following--
(c) determine that the person is an associate of
5 another, or that another is an associate of that
person;
(d) determine that the person, or another to
whom a determination under paragraph (c)
relates, has a relevant interest in specified
10 shares in a relevant corporation;
(e) determine that the voting rights attaching to
all or any of the shares to which a
determination under paragraph (d) relates are
suspended;
15 (f) determine that a person is an owner or
operator of, or a controller of the operation
of, the Port Campbell facility or a
transmission pipeline;
(g) determine that the person, or another person
20 to whom a determination under paragraph (c)
relates, has a prohibited interest.
132. Disposal of interest
(1) If ORG--
(a) makes a determination under 131; or
25 (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--
(c) if the offender holds shares that cause the
30 offender to have a prohibited interest
(whether alone or together with shares held
by any other person)--on the offender; or
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(d) on any other person who holds shares that
cause the offender to have a prohibited
interest (whether alone or together with
shares held by any other person)--
5 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 notice, being not less than
3 months after service of the notice, and that, until
10 those shares are disposed of, the voting rights
attaching to all or to specified shares in a relevant
corporation to which the offender is entitled are
suspended.
(2) For the purposes of sub-section (1), the relevant
15 shares that a person may be required by a notice
under that sub-section to dispose of otherwise
than to an associate of the offender are--
(a) subject to paragraph (b), any shares held by
the person that would need to be disposed of
20 in order to cause the offender to cease to
have a prohibited 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
25 have a prohibited interest, 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 in which the
offender has a relevant interest unless and until
30 the person ceases to hold the shares and the
offender and the offender's associates cease to
have a relevant interest in the shares.
(4) If a person served with a notice of determination
under sub-section (1) requiring the person to
35 dispose of shares fails to comply with the notice
within the period specified in the notice, the
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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 this sub-section,
5 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 shares fails
10 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 partnership;
and
15 (c) the person is one of 2 or more persons
constituting a relevant corporation--
ORG may, by notice in writing given to the
person, determine to revoke the licence (if any)
held by the person under this Act.
20 (6) ORG must cause written notice of--
(a) a determination under sub-section (1)
requiring a person to dispose of shares in a
relevant corporation; or
(b) a determination under section 131(3)(e) that
25 a person's voting rights are suspended--
to be served on the relevant person.
(7) If ORG--
(a) makes a determination under section 131(3);
or
30 (b) forms the opinion--
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that a person (in this section referred to as "the
offender") has a prohibited interest because of the
circumstances referred to in section 120(d), ORG
may, by notice in writing served on the offender,
5 determine 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 activities of the
10 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 in the
notice, not being less than 3 months after service
15 of the notice.
133. Voting rights in respect of certain shares
If written notice is served on a relevant
corporation of a determination of ORG under this
Part--
20 (a) that a person is an associate of another; or
(b) that a person has a prohibited interest in a
relevant corporation; or
(c) that voting rights are suspended--
the determination is binding and has effect for the
25 purposes of the application of this Part in relation
to any general meeting of the relevant corporation
held after receipt by the relevant corporation of
the notice.
134. Revocation of licence
30 (1) If ORG makes a determination under section
131(3), or forms the opinion under section 132(1),
that a person has a prohibited interest because of
its ownership, operation or control of the Port
Campbell facility or a transmission pipeline, ORG
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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
5 prevent 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 may by notice in
10 writing given to the person, determine to revoke
the licence (if any) held by the person under this
Act.
135. Annulment of certain resolutions of relevant
corporation
15 (1) If ORG is of the opinion that a resolution of 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 determination of
ORG under section 131(3) or 132(1) have been
20 admitted, ORG may, by 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 must, at
25 the same time or as soon as practicable thereafter,
cause written notice of 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 any
30 effect unless it is served on the relevant
corporation within one month after the date of the
resolution to which it relates.
136. Making, review and revocation of determination by
ORG
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(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
5 effective when written notice is served on the
relevant person.
(3) Despite an application being made under
section 37 of the Office of the Regulator-
General Act 1994 for review of a determination
10 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
15 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.
20 137. 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 to the Supreme Court
25 against the determination.
(2) An appeal under this section must be instituted
within 21 days after notice of the determination
under appeal is served on the appellant and that
period of limitation may not be extended.
30 (3) The Supreme Court may, on an appeal under this
section, if satisfied that proper grounds for making
the determination did not exist, quash or vary the
determination, either conditionally or
unconditionally and with effect from the date of
35 the determination or some other date, as the Court
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thinks fit, and make any consequential or ancillary
orders that may be just.
(4) Despite any appeal under this section, a
determination other than--
5 (a) a determination under section 132(1)
requiring a person to dispose of shares in the
relevant corporation; or
(b) a determination under section 132(4) that
shares in the relevant corporation are
10 forfeited to the State; or
(c) a determination under section 132(5) or
134(2) to revoke a licence--
continues to have effect pending determination of
the appeal.
15 (5) Except as provided in this Part, a determination of
ORG under this Part may not be challenged or
called into question.
138. Sale of forfeited shares
(1) ORG is to sell any shares forfeited to the State
20 under this Part.
(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
constitution of the relevant corporation or in any
25 other document.
(3) Any money realised from the sale of forfeited
shares under this section must, after deduction of
the reasonable costs of the forfeiture and sale be
paid to the person from whom the shares were
30 forfeited.
139. Service
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A notice required or authorised by this Part to be
served on a person may--
(a) in the case of a natural person--
(i) be served personally on the person; or
5 (ii) be sent by post to the person at his or
her last known place of residence,
business or employment; or
(b) in the case of a company or other body--be
left at, or sent by post to, its registered office
10 or a place of business of the company or
body whether within the State or elsewhere.
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PART 7--GAS COMPANY PROPERTY AND WORKS
Division 1--Pipelines Generally
140. Certain pipelines are not part of land
A transmission pipeline or distribution pipeline--
5 (a) is not part of the land through which it runs;
and
(b) is personal property.
141. Agreement for operation of pipelines
(1) A gas company may enter into an agreement with
10 one or more other gas companies in relation to a
pipeline owned by any one of those gas
companies, being an agreement that relates to--
(a) the operation, use and construction of the
pipeline; and
15 (b) the exercise of such rights, and compliance
with such obligations, in respect of that
operation, use or construction as the owner
of the pipeline is entitled to exercise or
required to comply with.
20 (2) If an agreement under sub-section (1) is in force
in respect of a pipeline owned by a gas
company--
(a) any permits or licences held by the gas
company under the Pipelines Act 1967 for
25 the pipeline are deemed to confer the same
rights and obligations on the other gas
company as on the gas company that is the
owner of the pipeline; and
(b) subject to paragraph (a), nothing in this
30 section affects the operation of the Pipelines
Act 1967 in relation to the pipeline.
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(3) Nothing in sub-section (2) affects the rights of the
parties to an agreement under sub-section (1).
(4) If an agreement is entered into under sub-section
(1), the parties to the agreement must ensure that a
5 copy of the agreement is given to the Minister
administering the Pipelines Act 1967.
(5) For the purposes of the Pipelines Act 1967, a gas
company on which rights and obligations are
conferred under this section is deemed to be the
10 holder of a permit or licence, as the case requires.
Division 2--Compulsory Acquisition of Land and Easements
142. Power of gas transmission company or gas
distribution company to acquire land
(1) A gas transmission company or gas distribution
15 company may recommend to the Minister for
compulsory acquisition any land required by the
gas transmission company or gas distribution
company for or in connection with the
construction or operation of a transmission
20 pipeline or distribution pipeline.
(2) The Land Acquisition and Compensation Act
1986 applies to this Act and for that purpose--
(a) the Gas Industry Act 2001 is the special
Act; and
25 (b) the Minister is the Authority.
(3) 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
30 distribution company under section 24 of the
Land Acquisition and Compensation Act 1986
despite anything to the contrary in that Act.
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(4) Despite anything to the contrary in the Land
Acquisition and Compensation Act 1986,
section 109(2) of that Act does not apply to land
acquired in accordance with this section.
5 143. Power to acquire easements
(1) A corporation to which this section applies may,
with the approval of the Governor in Council,
acquire compulsorily an easement for or in
connection with the construction or operation of a
10 transmission pipeline or a distribution pipeline.
(2) The Land Acquisition and Compensation Act
1986 applies to this section and for that purpose--
(a) the Gas Industry Act 2001 is the special
Act; and
15 (b) the corporation to which this section applies
is the Authority.
(3) In this section--
"corporation to which this section applies"
means a gas distribution company or a gas
20 transmission company;
"easement" includes right, charge, power or
privilege in, under, over, affecting or in
connection with, land.
144. Application of other laws in relation to land vested in
25 a gas company
(1) Sections 26 and 28 of the Land Acquisition and
Compensation Act 1986 apply in relation to land
that is vested in a gas transmission company or
gas distribution company under section 142 as
30 if--
(a) any reference to land vested in the Authority
were a reference to the land vested in the gas
transmission company or gas distribution
company (as the case requires); and
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(b) any reference to the Authority entering into
possession of the land were a reference to the
Authority entering into possession of the
land on behalf of the gas transmission
5 company or gas distribution company in
which the land is vested.
(2) Section 53 of the Transfer of Land Act 1958
applies in relation to land that is vested in a gas
transmission company or gas distribution
10 company under section 142 as if a reference in
that section to an acquiring authority or authority
were a reference to the gas transmission company
or gas distribution company (as the case requires).
(3) Section 54 of the Transfer of Land Act 1958
15 applies in relation to land that is vested in a gas
transmission company or gas distribution
company under section 142 as if a reference in
that section to an acquiring authority (except
where secondly occurring) were a reference to the
20 gas transmission company or gas distribution
company (as the case requires).
(4) The Minister may lodge a notification under
section 88(2) of the Transfer of Land Act 1958
in respect of an easement acquired under
25 section 142 even though the easement is vested
in a gas transmission company or gas distribution
company.
(5) Section 35(3) of the Subdivision Act 1988
applies in relation to land that is vested in a gas
30 transmission company or gas distribution
company under section 142 as if after paragraph
(d) there were inserted--
"(e) if any land on the plan is vested in a gas
transmission company or gas distribution
35 company under section 142 of the Gas
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Industry Act 2001, must include the name
of the company in whom the land is vested.".
(6) Section 35(6) of the Subdivision Act 1988
applies in relation to land that is vested in a gas
5 transmission company or gas distribution
company under section 142 as if 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
10 instead of in the name of the authority.
145. Rateability of property
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
15 is on or under that land any pipe or system of
pipes for, or incidental to the conveyance of gas
for sale by retail.
Division 3--Easements
146. Making of easements in sub-divisions
20 (1) If a proposal for sub-division or consolidation of
land is referred to a gas company under the
Planning and Environment Act 1987, the gas
company may require easements for the use of the
company for any one or more of the purposes set
25 out in the Schedule.
(2) The creation of an easement for a purpose set out
in the Schedule gives to the gas company the
rights specified in relation to an easement created
for that purpose, subject to any land access code
30 applying in relation to the exercise of those rights
issued by ORG under the Office of the
Regulator-General Act 1994.
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147. Easements over lands held by Crown licensees or
lessees
(1) If an easement acquired by a gas company for any
of the purposes of this Act is an easement over
5 land held or occupied by any licensee or lessee of
the Crown, a description of the easement and a
notification that it has been so acquired must be
forwarded without delay by the gas company to
the Secretary to the Department of Natural
10 Resources and Environment.
(2) If an easement referred to in sub-section (1) is
over land held or occupied under licence, the
description and notification must be endorsed on
the licence by the Secretary to the Department of
15 Natural Resources and Environment and be
registered in that Department.
(3) If a Crown grant is issued to a person of the land
over which any such easement has been taken, the
grant is subject to the easement.
20 Division 4--Powers as to Works
148. Powers as to works etc.
(1) Subject to and for the purposes of this Act, a gas
distribution company or gas transmission
company may--
25 (a) after giving 7 days' notice in writing to the
occupier, enter upon any lands and make
surveys and do any other acts or things
necessary for making surveys; and
(b) with any pipes, equipment or other devices,
30 receive, store or convey gas over, or under,
any land; and
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(c) after giving 7 days' notice in writing to the
occupier, enter on any land on either side of
any pipes, equipment or other devices
referred to in paragraph (b), and fell or
5 remove any tree or part of a tree or any
obstruction which in the opinion of the gas
distribution company or gas transmission
company it is necessary to fell or remove;
and
10 (d) after giving 7 days' notice in writing to the
occupier, enter upon any public or private
land or roads and construct any works or
place on under or over any land any pipeline,
work, structure or equipment and may repair,
15 alter or remove any such pipeline, work,
structure or equipment or any works under
its control; and
(e) do all other things necessary or convenient
for constructing, maintaining, altering, or
20 using any pipelines, works or undertakings
of the gas distribution company or gas
transmission company.
(2) A notice need not be given under sub-section
(1)(a), (c) or (d)--
25 (a) if the occupier consents to the entry and the
doing of the things for which the entry is
made; or
(b) in an emergency.
(3) Despite sub-section (1), a gas distribution
30 company or gas transmission company must not
enter land that is used primarily for residential
purposes between 6.00 pm and 7.30 am unless the
occupier consents.
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(4) In the exercise of the powers under sub-section
(1), a gas distribution company or gas
transmission company--
(a) must not stay on the land any longer than is
5 reasonably necessary; and
(b) if the powers relate to the carrying out of
works, must, on completing the works,
remove from the land all materials brought
on to the land for the purposes of those
10 works other than anything that the owner or
occupier of the land agrees may be left on
the land; and
(c) must leave the land as nearly as possible in
the same condition as it was in before the
15 exercise of the powers; and
(d) must co-operate as much as possible with the
owner and occupier of the land.
(5) In the exercise of the powers under sub-section
(1), a gas distribution company or gas
20 transmission company must do as little damage as
possible and must, if required within 2 years from
the exercise of the powers, make full
compensation to the owner of and all parties
interested in any land for any damage sustained by
25 them in consequence of the exercise of the
powers.
(6) Compensation under sub-section (5) shall be
either a gross sum or a yearly rent as may be
agreed and, in default of agreement, shall be
30 determined in the manner provided in the Land
Acquisition and Compensation Act 1986.
(7) A gas distribution company or gas transmission
company may exercise its powers under this
section by its officers or employees or by any
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other person authorised in writing by it or by the
officers or employees of any such person.
(8) This section applies subject to any land access
code applying in relation to the exercise of powers
5 under this section issued by ORG under the Office
of the Regulator-General Act 1994.
149. Power to open and break up roads etc.
(1) Subject to and for the purposes of this Act, a gas
distribution company or gas transmission
10 company may--
(a) open and break up the soil and pavement of
any public or private road or bridge; and
(b) temporarily stop the traffic on a road or
bridge referred to in paragraph (a).
15 (2) A gas distribution company or gas transmission
company must not (except in cases of emergency)
open or break up any road or bridge, or stop any
traffic, without giving at least 3 days' notice in
writing to the relevant road authority.
20 (3) If a gas distribution company or gas transmission
company has opened or broken up a road or
bridge, the gas distribution company or gas
transmission company must--
(a) with all convenient speed, and to the
25 satisfaction of the relevant road authority,
restore that part of the road or bridge opened
or broken up to as good condition as before
it was opened or broken up and remove all
surplus material; and
30 (b) cause the place where the road or bridge is
opened or broken up to be protected during
the night so as to prevent accidents; and
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(c) bear or pay all reasonable expenses of the
repair of the road or bridge for 6 months
after it is restored, so far as those expenses
have been incurred by opening or breaking
5 up the road or bridge.
(4) Nothing in this section affects the operation of the
Pipelines Act 1967.
(5) If this section is inconsistent with a provision of
the Pipelines Act 1967, the provision of that Act
10 prevails.
(6) A gas distribution company or gas transmission
company may exercise its powers under this
section by its officers or employees or by any
other person authorised in writing by it or by the
15 officers or employees of any such person.
(7) This section applies subject to any land access
code applying in relation to the exercise of powers
under this section issued by ORG under the Office
of the Regulator-General Act 1994.
20 (8) In this section--
"relevant road authority", in relation to a road
or bridge, means the municipal council or
other person legally responsible for the care
and management of the road or bridge.
25 Division 5--Offences
150. Obstructing construction or operation of pipelines
A person must not--
(a) wilfully obstruct a person acting under the
authority of a gas company in the lawful
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exercise of its powers in relation to the
construction or operation of a pipeline; or
(b) without the authority of a gas company,
interfere with any works relating to the
5 construction or operation of a pipeline
owned or operated by the gas company.
Penalty: 60 penalty units.
151. Offences relating to transmission pipelines
(1) A person must not--
10 (a) lay or cause to be laid a pipe that connects
with a pipe belonging to a gas transmission
company without its consent; or
(b) wilfully or by culpable negligence injure or
allow to be injured any gas fitting belonging
15 to a gas transmission company; or
(c) interfere in any way with a meter or prevent
a meter from properly registering the
quantity of gas conveyed; or
(d) fraudulently take gas from a transmission
20 pipeline; or
(e) retain or use any property of a gas
transmission company except in accordance
with an authority of the gas transmission
company.
25 Penalty: 60 penalty units.
(2) In addition to any penalty under sub-section (1), a
gas transmission company may recover the
amount of any damages sustained by the gas
transmission company as a result of the wrongful
30 act.
152. Offences relating to gas supply
(1) A person must not--
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(a) lay or cause to be laid a pipe that connects
with a pipe belonging to a gas distribution
company without its consent; or
(b) wilfully or by culpable negligence injure or
5 allow to be injured any gas fitting belonging
to a gas distribution company; or
(c) interfere in any way with a meter or prevent
a meter from properly registering the
quantity of gas supplied; or
10 (d) fraudulently take gas of a gas company; or
(e) if the gas supplied by a gas retailer is not
ascertained by a meter--
(i) use a burner other than a burner
provided or approved by a gas retailer;
15 or
(ii) keep the gas burning for a longer time
than that for which the person
contracts; or
(f) otherwise fraudulently burn or use gas
20 supplied to the person by a gas company.
Penalty: 60 penalty units.
(2) In addition to any penalty under sub-section (1), a
gas company may recover the amount of any
damages sustained by the gas company as a result
25 of the wrongful act.
(3) Despite any contract previously existing, the gas
company may also discontinue the supply of gas
to any person who has committed an offence
under sub-section (1).
30 (4) When a meter is under the custody or control of a
customer, the existence of artificial means for--
(a) interfering with the meter; or
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(b) preventing a meter from properly registering
the quantity of gas supplied; or
(c) taking gas of a gas company--
is evidence and, in the absence of evidence to the
5 contrary, proof, that the interference, prevention
or taking has been fraudulently and wilfully
caused by the customer using the meter.
Division 6--General
153. Definition
10 In this Division--
"officer or employee" includes an agent or
contractor of a gas company authorised by
the gas company to carry out certain duties.
154. Identity cards
15 (1) A gas company must give an identity card to any
of its officers or employees who, in the course of
the officer's or employee's duties, may need to
enter the premises of a customer.
(2) The identity card must bear--
20 (a) the signature of the chief executive officer or
a prescribed officer of the gas company; and
(b) the photograph and signature of the officer
or employee.
(3) The officer or employee must produce his or her
25 identity card for inspection--
(a) before entering the premises of a customer or
other person in the course of his or her
duties; and
(b) at any time while on those premises, if asked
30 to do so.
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Penalty: 10 penalty units.
155. Power of entry
At any reasonable time, an officer or employee of
a gas company may enter any premises to which
5 the gas company supplies or transmits gas to
inspect any gas fitting or to determine the quantity
of gas consumed, supplied or transmitted.
156. Emergency powers
(1) If an emergency occurs near any pipeline used by
10 a gas company for the conveyance of gas which,
in the opinion of an officer or employee of the gas
company, might endanger life or property, the
officer or employee may enter any land or
premises for the purpose of ensuring the security
15 or the safety of the pipeline.
(2) If an officer or employee of the gas company
considers that the security or safety of any
pipeline used by the gas company can only be
ensured by stopping the conveyance of gas
20 through or to the pipeline, the officer or employee
may take such steps as are necessary to stop the
conveyance of gas.
157. Offence to obstruct officer or employee of gas
company
25 A person must not obstruct, hinder or interfere
with an officer or employee of a gas company
in carrying out any function or duty under
section 156.
Penalty: 60 penalty units.
30 _______________
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PART 8--VICTORIAN ENERGY NETWORKS
CORPORATION
Division 1--VENCorp
158. Establishment
5 (1) There continues to be established a body by the
name Victorian Energy Networks Corporation.
(2) VENCorp--
(a) is a body corporate with perpetual
succession;
10 (b) has an official seal;
(c) may sue and be sued;
(d) may acquire, hold and dispose of real and
personal property;
(e) may do and suffer all acts and things that a
15 body corporate may by law do and suffer.
(3) All courts must take judicial notice of the seal of
VENCorp affixed to a document and, until the
contrary is proved, must presume that it was duly
affixed.
20 (4) The official seal of VENCorp must be kept in
such custody as VENCorp directs and must not be
used except as authorised by VENCorp.
159. VENCorp not to represent the Crown
VENCorp is a public authority but does not
25 represent the Crown.
160. Functions and powers relating to gas industry
(1) The functions of VENCorp in relation to the gas
industry are--
(a) to specify security standards for the gas
30 transmission system;
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(b) to control the security of the gas
transmission system;
(c) to control the operation of the gas
transmission system;
5 (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 gas into, and the
10 withdrawal of gas from, that system;
(f) to provide information and other services to
facilitate decisions for economically efficient
investment and use of resources in the gas
industry;
15 (g) to co-ordinate the interaction of gas
production, gas storage, transmission
pipelines and gas distribution and supply
facilities for the purpose of ensuring a secure
and efficient gas transmission system;
20 (h) to operate and administer a market and
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 to ORG
25 standards in relation to the reliability of the
supply of gas to classes of customers;
(j) to facilitate the implementation and
operation of, and to provide services in
connection with, arrangements for
30 competition in the retail gas market in
Victoria;
(k) to carry out directions given to VENCorp
under section 171, whether or not for
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purposes connected with functions under this
section; and
(l) to carry out any functions conferred on
VENCorp in relation to the gas industry
5 under this Act or any other Act.
(2) VENCorp may trade in gas--
(a) for the purpose of discharging its functions
relating to the security or administration of
the gas transmission system, to the extent it
10 is permitted to do so under the MSO Rules;
or
(b) in an emergency.
(3) VENCorp may in accordance with the MSO Rules
suspend any market operated or administered by it
15 under sub-section (1)(h).
161. Functions and powers relating to electricity
VENCorp has the functions and powers conferred
on it under the Electricity Industry Act 2000.
162. General powers
20 (1) Without limiting the generality of the powers
conferred on it under this Act or any other Act,
VENCorp--
(a) may form, or participate in the formation of,
or be a member of, companies;
25 (b) may form, or participate in the formation of,
and may participate in partnerships, trusts,
unincorporated joint ventures and other
arrangements for the sharing of profits;
(c) may act as trustee;
30 (d) may engage in any business, undertaking or
activity incidental to the performance of its
functions;
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(e) may do all things necessary or convenient to
be done for, or in connection with, carrying
out its functions under this Act or any other
Act.
5 (2) VENCorp may carry out its functions and exercise
its powers within or outside Victoria and outside
Australia.
(3) For the purposes of this Act, the question whether
a body corporate is a subsidiary of VENCorp is to
10 be determined in the same manner as the question
would be determined under the Corporations Law
of Victoria if VENCorp and the body corporate
were corporations within the meaning of that Law.
163. Non-commercial functions
15 (1) The Minister, with the approval of the Treasurer,
may, in writing, direct the board of VENCorp--
(a) to perform certain functions that the Minister
considers to be in the public interest but that
may cause VENCorp to suffer financial
20 detriment; or
(b) to cease to perform functions of a kind
referred to in paragraph (a); or
(c) to cease to perform certain functions that the
Minister considers not to be in the public
25 interest.
(2) The board of VENCorp must comply with a
direction given under sub-section (1).
(3) If VENCorp satisfies the Treasurer that it has
suffered financial detriment as a result of
30 complying with a direction under sub-section (1),
VENCorp may be reimbursed by the State an
amount determined by the Treasurer and the
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Consolidated Fund is thereby appropriated to the
necessary extent accordingly.
(4) The reference in this section to suffering financial
detriment includes a reference to incurring net
5 costs that are greater than would have been
incurred if the direction were not complied with.
164. Delegation powers
VENCorp may, by instrument under its official
seal, delegate to--
10 (a) a director; or
(b) an officer of VENCorp by name or the
holder of an office with VENCorp; or
(c) the members of a committee established by
VENCorp; or
15 (d) with the consent of the Minister, any other
person--
any power of VENCorp, other than--
(e) this power of delegation; and
(f) any other power that is prescribed for the
20 purposes of this section.
Division 2--Board of Directors
165. Board of Directors
(1) There shall be a board of directors of VENCorp
consisting of a chairperson and not more than
25 9 other directors appointed in accordance with this
Act.
(2) The board of directors of VENCorp--
(a) is responsible for the management of the
affairs of VENCorp; and
30 (b) may exercise the powers of VENCorp.
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166. Directors
(1) The directors shall be persons with expertise
relevant to the functions of VENCorp nominated
by the Minister.
5 (2) At least 3 of the directors shall be persons--
(a) who are not officers or employees of
VENCorp, a gas producer, a gas storage
provider or a gas company; and
(b) none of whom has a material personal
10 interest (within the meaning of section
195(1) of the Corporations Law) in
VENCorp, a gas producer, a gas storage
provider or a gas company; and
(c) who are not officers or employees of the
15 holder of a licence under Part 2 of the
Electricity Industry Act 2000; and
(d) none of whom has a material personal
interest (within the meaning of section
195(1) of the Corporations Law) in a person
20 that holds a licence issued under Part 2 of the
Electricity Industry Act 2000.
167. Appointment of directors
(1) The chairperson and other directors of VENCorp
shall be appointed by the Governor in Council.
25 (2) The Public Sector Management Act 1992 does
not apply to a director of VENCorp in respect of
the office of director.
168. Terms and conditions of appointment
(1) A director of VENCorp is to be appointed for the
30 term, not exceeding 3 years, specified in the
instrument of appointment, but is eligible for re-
appointment.
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(2) A director of VENCorp holds office, subject to
this Act, on terms and conditions determined by
the Minister.
169. Duties of directors
5 (1) A director of VENCorp must at all times act
honestly in the performance of the functions of his
or her office.
(2) A director of VENCorp must at all times exercise
a reasonable degree of care and diligence in the
10 performance of his or her functions.
(3) A director, or former director, of VENCorp must
not make improper use of information acquired by
virtue of his or her position as a director to gain,
directly or indirectly, an advantage for himself or
15 herself or for any other person or to cause
detriment to VENCorp.
(4) A director of VENCorp must not make improper
use of his or her position as a director to gain,
directly or indirectly, an advantage for himself or
20 herself or for any other person or to cause
detriment to VENCorp.
170. VENCorp or Minister may bring proceedings
If a person contravenes section 169 in relation to
VENCorp, VENCorp or the Minister, in the name
25 of VENCorp, may recover from the person as a
debt due to VENCorp by action in a court of
competent jurisdiction either or both of the
following--
(a) if that person, or any other person, made a
30 profit as a result of the contravention, an
amount equal to that profit;
(b) if VENCorp has suffered loss or damage as a
result of the contravention, an amount equal
to that loss or damage.
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171. Directions
(1) The Minister, after consultation with the
Treasurer, may, from time to time, by written
notice to the board of VENCorp, give such
5 directions to the board as the Minister thinks fit.
(2) The board of VENCorp must comply with a
direction given under this section but an act or
decision of the board is not invalid merely
because of a failure to comply with such a
10 direction.
172. Vacancies, resignations, removal from office
(1) The office of a director of VENCorp becomes
vacant if the director--
(a) without the board's approval, fails to attend
15 3 consecutive meetings of the board of
VENCorp; or
(b) becomes bankrupt, applies to take the benefit
of any law for the relief of bankrupt or
insolvent debtors, compounds with his or her
20 creditors or makes an assignment of his or
her remuneration for their benefit; or
(c) is convicted of an indictable offence or an
offence which, if committed in Victoria,
would be an indictable offence.
25 (2) A director of VENCorp may resign by writing
delivered to the Minister.
(3) The Governor in Council may remove a director,
or all directors, of VENCorp from office.
(4) The Governor in Council must remove a director
30 of VENCorp from office if he or she--
(a) is convicted of an offence relating to his or
her duties as a director; or
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(b) fails, without reasonable excuse, to comply
with section 175.
173. Proceedings of board
(1) Subject to sub-section (2), meetings of the board
5 of VENCorp shall be held at such times and
places as the board determines.
(2) The chairperson of VENCorp may at any time
convene a meeting but must do so when requested
by a director of VENCorp.
10 (3) A majority of the directors for the time being of
VENCorp constitute a quorum of the board of
VENCorp.
(4) A question arising at a meeting of the board of
VENCorp shall be determined by a majority of
15 votes of directors of VENCorp present and voting
on that question and, if voting is equal, the person
presiding has a casting, as well as a deliberative,
vote.
(5) The board of VENCorp must ensure that minutes
20 are kept of each of its meetings.
(6) Subject to this Act, the board of VENCorp may
regulate its own proceedings.
174. Resolutions without meetings
(1) If the directors for the time being of VENCorp
25 (other than a director who is absent from Australia
when the other directors sign) sign a document
containing a statement that those directors are in
favour of a resolution in terms set out in the
document, a resolution in those terms shall be
30 taken to have been passed at a meeting of the
board held on the day on which the document is
signed or, if the directors do not sign it on the
same day, on the day on which the last director to
sign signs the document.
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(2) If a resolution is, under sub-section (1), taken to
have been passed at a meeting of the board, each
director must be advised as soon as practicable
and given a copy of the terms of the resolution.
5 (3) For the purposes of sub-section (1), two or more
separate documents containing a statement in
identical terms, each of which is signed by one or
more directors, shall be taken to constitute one
document.
10 (4) In this section, "director" in relation to a
resolution, does not include a director who, by
reason of section 175, is not permitted to take part
in the making of the resolution.
175. Disclosure of interests
15 (1) If--
(a) a director of VENCorp has a direct or
indirect pecuniary interest in a matter being
considered, or about to be considered, by the
board of VENCorp; and
20 (b) the interest could conflict with the proper
performance of the director's duties in
relation to the consideration of the matter--
the director, as soon as practicable after the
relevant facts come to the director's knowledge,
25 must disclose the nature of the interest at a
meeting of the board.
(2) A disclosure under sub-section (1) must be
recorded in the minutes of the meeting and, unless
the Minister or the board otherwise determines,
30 the director--
(a) must not be present during any deliberation
of the board in relation to the matter; and
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(b) must not take part in any decision of the
board in relation to the matter.
(3) For the purpose of the making of a determination
by the board of VENCorp under sub-section (2) in
5 relation to a director who has made a disclosure
under sub-section (1), a director who has a direct
or indirect pecuniary interest in the matter to
which the disclosure relates--
(a) must not be present during any deliberation
10 of the board for the purpose of making the
determination; and
(b) must not take part in the making by the
board of the determination.
(4) Sub-sections (1) and (2) do not apply in relation to
15 a matter relating to the supply of goods or services
to the director if the goods or services are, or are
to be, available to members of the public on the
same terms and conditions.
(5) Sub-sections (1) and (2) do not apply in respect of
20 a matter relating to the business of another gas
company or of a gas producer or a gas storage
provider or of the holder of a licence under Part 2
of the Electricity Industry Act 2000 by reason
only that the director is an officer or employee of,
25 or holds shares in, that other gas company or the
gas producer or gas storage provider or the holder
of that licence.
176. Validity of decisions
(1) An act or decision of the board of VENCorp is not
30 invalid merely because of--
(a) a defect or irregularity in, or in connection
with, the appointment of a director of
VENCorp; or
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(b) a vacancy in the membership of the board,
including a vacancy arising from the failure
to appoint an original director.
(2) Anything done by or in relation to a person
5 purporting to act as chairperson or as a director is
not invalid merely because--
(a) the occasion for the appointment has not
arisen; or
(b) there was a defect or irregularity in relation
10 to the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion for the person to act had not
arisen or had ceased.
177. VENCorp not to make loans to directors
15 (1) The powers of VENCorp do not include a power,
whether directly or indirectly--
(a) to make a loan to a director of VENCorp, a
spouse of such a director, or a relative (as
defined in the Corporations Law) of such a
20 director or spouse; or
(b) to give a guarantee or provide security in
connection with a loan made or to be made
by another person to a director, spouse or
relative referred to in paragraph (a).
25 (2) Nothing in sub-section (1) prohibits VENCorp
from entering into an agreement or arrangement
with a person referred to in sub-section (1) if
similar agreements or arrangements are entered
into by VENCorp with members of the public on
30 the same terms and conditions.
178. Indemnity
The powers of VENCorp do not include a power
to exempt, whether directly or indirectly, a
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director of VENCorp from, or to indemnify
(whether by paying a premium in respect of a
contract of insurance or otherwise) a director of
VENCorp against, any liability that by law would
5 otherwise attach to the director in respect of a
wilful breach of duty or breach of trust of which
the director may be guilty in relation to VENCorp.
179. Chief executive officer
(1) The board of VENCorp may appoint a person
10 approved by the Minister as the chief executive
officer of VENCorp.
(2) The chief executive officer of VENCorp holds
office, subject to this Act, on a full-time basis and
on the terms and conditions determined by the
15 board of VENCorp and specified in the instrument
of appointment.
(3) The board of VENCorp may remove the chief
executive officer of VENCorp from office.
Division 3--Planning, Finance and Reporting Provisions
20 180. Corporate plan
(1) The board of VENCorp must prepare a corporate
plan each year.
(2) The board must give a copy of the proposed plan
to the Minister and the Treasurer on or before
25 31 May in each year or such later date as is
determined by the Treasurer.
(3) The proposed corporate plan must be in or to the
effect of a form approved by the Minister and the
Treasurer and must include--
30 (a) a statement of corporate intent in accordance
with section 181;
(b) a business plan containing such information
as the Treasurer or the Minister requires;
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(c) financial statements containing such
information as the Treasurer requires.
(4) The board must consider any comments on the
proposed plan that are made to it by the Treasurer
5 or the Minister within 2 months after the plan was
submitted to the Treasurer and Minister.
(5) The board must consult in good faith with the
Treasurer and the Minister following
communication to it of the comments, must make
10 such changes to the plan as are agreed between
the Treasurer, the Minister and the board and must
deliver the completed plan to the Treasurer and
Minister within 2 months after the commencement
of the financial year.
15 (6) The plan, or any part of the plan, must not be
published or made available except for the
purposes of this Part without the prior approval of
the board, the Treasurer and the Minister.
(7) The plan may be modified at any time by the
20 board with the agreement of the Treasurer and the
Minister.
(8) If the board, by written notice to the Treasurer and
Minister, proposes a modification of the plan, the
board may, within 14 days, make the modification
25 unless the Treasurer or Minister, by written notice
to the board, directs the board not to make it.
(9) The Treasurer or Minister may, from time to time,
by written notice to the board, direct the board to
include in, or omit from, a statement of corporate
30 intent, a business plan or a financial statement of a
specified kind, any specified matters.
(10) Before giving a direction under this section, the
Treasurer and Minister must consult with the
board as to the matters to be referred to in the
35 notice.
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(11) The board must comply with a direction under this
section.
(12) At any particular time, the statement of corporate
intent, the business plan or the financial
5 statements for VENCorp are the statements and
plan last completed, with any modifications or
deletions made in accordance with this Part.
181. Statement of corporate intent--contents
Each statement of corporate intent must specify
10 for VENCorp and its subsidiaries (if any), in
respect of the financial year to which it relates and
each of the 2 following financial years, the
following information--
(a) the objectives of VENCorp and of its
15 subsidiaries;
(b) the main undertakings of VENCorp and of
its subsidiaries;
(c) the nature and scope of the activities to be
undertaken by VENCorp;
20 (d) the accounting policies to be applied in the
accounts;
(e) the performance targets and other measures
by which the performance of VENCorp and
of its subsidiaries may be judged in relation
25 to their stated objectives;
(f) the kind of information to be provided to the
Treasurer and the Minister by VENCorp
during the course of those financial years,
including the information to be included in
30 each half-yearly report;
(g) such other matters as may be agreed on by
the Treasurer, the Minister and the board of
VENCorp from time to time.
182. Borrowing and investment by VENCorp
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VENCorp has the powers conferred on it by the
Borrowing and Investment Powers Act 1987.
183. Dividends
VENCorp must pay to the State such amounts, at
5 such times and in such manner, as are determined
by the Treasurer after consultation with the board
of VENCorp and the Minister.
184. Reports to Treasurer
The Treasurer may, in writing, require the board
10 of VENCorp to give the Treasurer such
information as the Treasurer requires in relation to
its duties and functions under this Division.
185. Annual report
VENCorp, in its annual report for a financial year
15 under Part 7 of the Financial Management Act
1994, must include--
(a) a copy of each direction given to it during
that year under section 163 or 171 together
with a statement of its response to the
20 direction; and
(b) a copy of the statement of corporate intent
last completed.
Division 4--Directions by VENCorp
186. VENCorp may give directions
25 (1) VENCorp may give directions in writing as to a
matter referred to in sub-section (2) to a market
participant for the purposes of any one or more of
the following--
(a) facilitating the reliability of the supply of
30 gas;
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(b) facilitating the security of the gas
transmission system or gas distribution
system;
(c) subject to consistency with the Gas Safety
5 Act 1997, the interests of public safety.
(2) The matters as to which a direction may be given
under sub-section (1) are--
(a) the operation or use of any equipment or
installation;
10 (b) the control of the flow of gas;
(c) any other matter necessary to be done, or not
to be done, for the security of the gas
transmission system or the gas distribution
system.
15 (3) A direction under this section that is inconsistent
with--
(a) the Gas Safety Act 1997 or regulations
under that Act; or
(b) the Pipelines Act 1967, or with the
20 conditions of a licence under that Act held
by the person to whom the direction is
given--
is void to the extent of the inconsistency.
(4) A direction given under this section to a market
25 participant applies to the market participant and
may also be expressed to apply to a specified class
of persons, being a class constituted by or
included in one or both of the following classes of
persons--
30 (a) servants or agents of or persons acting on
behalf of, the market participant;
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(b) persons performing work or services,
whether directly or indirectly, for the market
participant--
and, if a direction so expressed is given, the
5 direction is deemed to apply to each person
included in that specified class.
(5) If a direction under this section applies to a
market participant and to a person referred to in
sub-section (4) the market participant must cause
10 a copy of the direction to be given to that other
person.
Penalty: 10 penalty units.
(6) A direction under this section may make provision
in relation to a matter by applying, adopting or
15 incorporating, with or without modifications, a
code of practice or standard contained in an
instrument (including an instrument issued or
made outside Australia), as in force or existing at
the time when the direction takes effect or as in
20 force or existing from time to time, being a code
of practice or standard that is relevant to that
matter.
(7) A direction under this section may prohibit the
doing of an act or thing either unconditionally or
25 subject to conditions.
(8) A direction under this section has effect and must
be complied with despite any previous direction
under this section.
(9) A person must comply with a direction in force
30 under sub-section (1) that applies to the person.
Penalty: In the case of a natural person,
240 penalty units.
In the case of a body corporate,
10,000 penalty units.
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(10) An offence by a body corporate under sub-section
(9) is an indictable offence.
(11) If--
(a) a direction given under this section applies to
5 a market participant and another person and
that other person is prosecuted for an offence
against sub-section (9) in relation to the
direction; and
(b) the person adduces evidence that the person
10 did not know, and could not reasonably be
expected to have known, of the existence of
the direction--
the person shall not be convicted of the offence
unless the prosecutor proves that the person knew,
15 or could reasonably be expected to have known,
of the existence of the direction.
187. Power of Minister
(1) The Minister, at the request of VENCorp, may, at
any time, make a direction in writing amending a
20 direction made, or purportedly made, by
VENCorp under this Division (in this section
called "the VENCorp direction") for the purpose
of correcting a defect, mistake or omission in the
VENCorp direction.
25 (2) If a direction of the Minister under sub-section (1)
amending a VENCorp direction--
(a) includes a statement that the VENCorp
direction is deemed to have been made as so
amended; and
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(b) is made not later than 3 months after the
VENCorp direction was made--
the VENCorp direction is deemed to have been
made as so amended.
5 188. Protection from liability
(1) A person to whom this section applies is not liable
to any action, claim or demand on account of any
damage, loss or injury sustained or alleged to be
sustained because of anything done or omitted to
10 be done in good faith--
(a) in or in connection with or incidental to the
exercise of a power to give or make a
direction, prohibition or requisition under, or
purportedly under, this Act; or
15 (b) in the reasonable belief that the act or
omission was in or in connection with or
incidental to the exercise of such a power.
(2) This section applies to VENCorp and the directors
and servants of VENCorp.
20 189. Protection of persons executing directions
A person is not liable to any action, claim or
demand on account of any damage, loss or injury
sustained or alleged to be sustained because of
anything done, or omitted to be done in good
25 faith--
(a) in the execution of any direction under, or
purportedly under, this Division; or
(b) in the reasonable belief that the act or
omission was in the execution of such a
30 direction.
190. Continuing offences
(1) If an offence is committed by a person by reason
of a failure to comply, within the period specified
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in a direction given in a direction under
section 186, with the requirements specified in the
direction, the offence, for the purposes of sub-
section (2) is deemed to continue so long as any
5 requirement specified in the direction remains
undone, whether or not the period has elapsed.
(2) If, under sub-section (1), an offence is deemed to
continue, the person who committed the offence
commits an additional offence on each day during
10 which the offence is deemed to continue and is
liable, upon conviction for such an additional
offence, to a fine not exceeding 100 penalty units.
Division 5--Appointment and Powers of VENCorp
Inspectors
15 191. Inspectors
(1) The chief executive officer of VENCorp may
appoint an officer or employee of VENCorp or an
agent or contractor of VENCorp to be an inspector
for the purpose of this Part.
20 (2) The chief executive officer must give an identity
card to each person who is appointed an inspector.
(3) The identity card--
(a) must be signed by the chief executive
officer; and
25 (b) bear a photograph and the signature of the
inspector.
(4) An inspector must produce his or her identity card
for inspection--
(a) before performing a function under this Part;
30 and
(b) at any time during the performance of a
function under this Part, if asked to do so.
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Penalty: 10 penalty units.
(5) The chief executive officer of VENCorp must not
appoint an agent or contractor of VENCorp to be
an inspector unless satisfied that the agent or
5 contractor--
(a) is competent to exercise the functions of an
inspector; and
(b) is of good repute, having regard to character,
honesty and integrity; and
10 (c) agrees in writing to carry out the functions of
an inspector in accordance with such criteria
as are established from time to time by
VENCorp.
192. Powers of entry--enforcement
15 (1) If an inspector has reasonable grounds for
suspecting that there is on any land or premises a
particular thing that may be evidence of the
commission of a contravention of a direction
under section 186, the inspector may--
20 (a) enter the land or premises; and
(b) search for the thing.
(2) An inspector must not enter land or premises
except--
(a) with the written consent of the occupier of
25 the land or premises; or
(b) under the authority of a search warrant.
193. Occupier to be given copy of consent
(1) An occupier who consents in writing to entry of
his or her land or premises under section 192 must
30 be given a copy of the signed consent
immediately.
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(2) If, in any proceeding, a written consent is not
produced to the court, it must be presumed, until
the contrary is proved, that the occupier did not
consent to the entry and search.
5 194. Search warrant
(1) An inspector may apply to a magistrate for the
issue of a search warrant in relation to particular
land or premises if the inspector believes on
reasonable grounds that there is, or may be within
10 the next 72 hours, on the land or premises a
particular thing that may be evidence of a
contravention of a direction under section 186.
(2) A magistrate may issue a search warrant under
this section if the magistrate is satisfied by
15 evidence on oath, whether oral or by affidavit, that
there are reasonable grounds for suspecting that
there is, or may be within the next 72 hours, on
land or premises a particular thing that may be
evidence of a contravention of a direction under
20 section 186.
(3) The search warrant may authorise an inspector
named in the warrant and any assistants the
inspector considers necessary--
(a) to enter the land or premises, or part of the
25 land or premises, named or described in the
warrant; and
(b) to search for the thing named or described in
the warrant.
(4) In addition to any other requirement, a search
30 warrant issued under this section must state--
(a) the contravention suspected; and
(b) the land or premises to be searched; and
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(c) a description of the thing for which the
search is to be made; and
(d) any conditions to which the warrant is
subject; and
5 (e) whether entry is authorised to be made at any
time or during stated hours; and
(f) a day, not later than 7 days after the issue of
the warrant, on which the warrant ceases to
have effect.
10 (5) A search warrant must be issued in accordance
with the Magistrates' Court Act 1989 and in the
form prescribed under that Act.
(6) The rules to be observed with respect to search
warrants mentioned in the Magistrates' Court
15 Act 1989 extend and apply to warrants under this
section.
195. Announcement before entry
(1) Before executing a search warrant, the inspector
named in the warrant or a person assisting the
20 inspector named in the warrant must--
(a) announce that he or she is authorised by the
warrant to enter the land or premises; and
(b) give any person at the land or premises an
opportunity to allow entry to the land or
25 premises.
(2) The inspector or a person assisting the inspector
need not comply with sub-section (1) if he or she
believes on reasonable grounds that immediate
entry to the land or premises is required to
30 ensure--
(a) the safety of any person; or
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(b) that the effective execution of the warrant is
not frustrated.
196. Copy of warrant to be given to occupier
If the occupier or another person who apparently
5 represents the occupier is present at the land or
premises when a search warrant is being executed,
the inspector must--
(a) identify himself or herself to that person by
producing his or her identity card for
10 inspection by that person; and
(b) give to that person a copy of the execution
copy of the warrant.
197. Offence to obstruct inspector
A person must not without reasonable excuse
15 obstruct or hinder an inspector exercising
functions under this Part.
Penalty: In the case of a natural person,
120 penalty units.
In the case of a body corporate,
20 600 penalty units.
198. Police to assist inspectors
An inspector may request the assistance of a
member of the police force and a member of the
police force may assist an inspector to take any
25 action authorised by this Part.
199. Impersonation of inspector
A person must not impersonate an inspector.
Penalty: 60 penalty units.
Division 6--General
30 200. Information to be provided to VENCorp
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(1) The Governor in Council, by Order published in
the Government Gazette, may declare that a
person who--
(a) operates a pipeline that is connected to a gas
5 transmission system; or
(b) operates an underground storage facility; or
(c) is a gas producer--
must give VENCorp such information, or
information of such class of information, as is
10 specified in the Order.
(2) Sub-section (1) does not apply to a person to the
extent that the person and VENCorp otherwise
agree in writing.
(3) A copy of an Order made under sub-section (1)
15 must be laid before each House of the Parliament
as soon as practicable after it is made.
(4) An Order made under sub-section (3) is subject to
disallowance by a House of the Parliament and
sections 23, 24 and 25 of the Subordinate
20 Legislation Act 1994 apply to such an Order as if
the Order were a statutory rule within the meaning
of that Act, notice of the making of which had
been published in the Government Gazette on the
day on which the Order was so published.
25 (5) If an Order made under sub-section (1) is
disallowed by a House of the Parliament, the
Minister must do all such things as are necessary
to give effect to the disallowance.
201. Restriction on disclosure of confidential information
30 (1) This section applies if information or a document
is given to VENCorp under section 200 and, at the
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time it is given, the person giving it states that it is
of a confidential or commercially-sensitive nature.
(2) VENCorp must not, without the consent of the
person who gave it, disclose the information or
5 the contents of the document to any person.
(3) Sub-section (2) does not prevent VENCorp from
disclosing information or the contents of a
document to a member of the staff of VENCorp or
to a person engaged by VENCorp in connection
10 with the carrying out of its functions.
(4) A member of the staff of VENCorp or a person
engaged by VENCorp in connection with the
carrying out of its functions must not disclose
information or the contents of a document
15 disclosed to the member or person by VENCorp
to any person (not being another such member or
person) without the consent of the person who
gave the information or document to VENCorp.
202. Rateability of land vested in VENCorp
20 Land of the Crown and land vested in fee in
VENCorp which is unoccupied or used for the
purposes of this Act is not, and is deemed never to
have been, rateable land within the meaning of the
Local Government Act 1989.
25 203. Service of documents on VENCorp
A document required or authorised to be served
on VENCorp may be served--
(a) personally on--
(i) the chief executive officer of
30 VENCorp; or
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(ii) a person apparently authorised to
accept service of documents on behalf
of VENCorp; or
(b) by post to VENCorp at its principal office.
5 204. Evidence of documents issued by VENCorp
A document issued or purporting to have been
issued by VENCorp and purporting to have been
signed by the chief executive officer of VENCorp
is evidence that the document was issued by
10 VENCorp.
205. Review of this Part
(1) The Minister must cause a review of this Part to
be undertaken in 2007 by the ACCC or another
person nominated by the Minister.
15 (2) The person undertaking the review must report in
writing to the Minister on the outcome of the
review on or before 31 December 2007.
(3) The matters to be addressed in the review are
whether or not there is a continuing need for
20 VENCorp, or a similar statutory authority, with
particular regard to--
(a) the competitiveness of markets for and in
relation to gas; and
(b) such other matters as the Minister
25 determines.
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PART 9--GAS SUPPLY EMERGENCY PROVISIONS
Division 1--Emergency Provisions
206. Proclamation that this Part applies
(1) If it appears to the Governor in Council that the
5 available supply of gas is or is likely to become
less than is sufficient for the reasonable
requirements of the community, the Governor in
Council may, by proclamation, declare that this
Part is to apply.
10 (2) The proclamation must be published in the
Government Gazette.
(3) The proclamation takes effect on the date of its
publication.
(4) The Governor in Council may at any time revoke
15 a proclamation.
207. Powers of Minister
(1) While a proclamation is in force, the Minister
may, having regard to the needs of the
community, give any directions that the Minister
20 thinks necessary to--
(a) ensure the safe and sure supply of gas; or
(b) to regulate the use of the available supply of
gas.
(2) Without limiting sub-section (1), the Minister may
25 by notice in writing do all or any of the
following--
(a) give any directions that are necessary to
control, direct, authorise conduct in relation
to, restrict or prohibit the extraction,
30 production, supply, distribution, sale, use or
consumption of gas;
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(b) direct a person or body who extracts,
produces, transmits or distributes gas to
extract it for, or produce it, transmit it or
distribute it to a person specified in the
5 direction;
(c) direct a person or body to comply with any
terms and conditions relating to the
extraction, production, supply, distribution,
sale, use or consumption of gas the Minister
10 determines;
(d) direct a person or body to whom gas is
provided, or transmitted, to accept the gas so
provided or transmitted;
(e) direct a person or body to carry out any work
15 required to ensure the extraction, production,
supply, distribution or flow of gas;
(f) direct what services must be maintained and
upon what terms and conditions they must
operate;
20 (g) direct persons and bodies to operate and
maintain services to the extent and upon the
terms specified in the direction;
(h) direct at what times and places and upon
what terms and conditions and in what
25 manner services may be used;
(i) prohibit the operation or use of services
except, if so specified in the prohibition,
with the consent of the Minister;
(j) requisition the use of property of any kind
30 which is used or may be used, for or in
connection with the operation or
maintenance of any service;
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(k) provide for or control, by direction,
prohibition or requisition, the operation, use,
disposal, distribution, storage, repair, upkeep
and maintenance of any property or
5 commodity used or which may be used for,
or in connection with, any service;
(l) authorise a person specified in the notice to
enter any land, building or structure used for
or in connection with the provision of
10 services;
(m) provide, by direction, prohibition or
requisition, for any matter or thing incidental
to the carrying into effect of the powers
referred to in this section.
15 (3) A direction, prohibition or requisition--
(a) may be made so as to apply to or have
operation throughout the whole or any part
of Victoria; and
(b) may operate generally, or may be limited in
20 its operation according to specified times,
places, circumstances, conditions or
restrictions; and
(c) may, if so specified in the direction,
prohibition or requisition, allow the Minister
25 to exempt a person or body from having to
comply with the direction, prohibition or
requisition; and
(d) may be addressed or directed to people and
bodies generally or particularly; and
30 (e) subject to sub-section (7), takes effect when
made or, if a later time is specified in the
direction, prohibition or requisition, at that
later time; and
(f) has effect as if enacted in this Act.
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(4) A direction (including a direction under sub-
section (6)), prohibition or requisition must be
published in the Government Gazette as soon as
possible after it is made.
5 (5) Notice of a requisition relating to a class of
property must be published in the Government
Gazette as soon as possible after it is made.
(6) The Minister may at any time by direction under
this section amend or revoke a direction,
10 prohibition or requisition made, or purportedly
made, under this section or may return
requisitioned property.
(7) If a direction of the Minister under sub-section (6)
amending an earlier direction for the purpose of
15 correcting a defect, mistake or omission--
(a) includes a statement that the earlier direction
is deemed to have been made as so amended;
and
(b) is made not later than 3 months after the
20 earlier direction was made--
the earlier direction is deemed to have been made
as so amended.
(8) If the Minister requisitions the use of property
under sub-section (2)(j), the reasonable costs of
25 compensating the owner of that property for the
requisition and making good any damage resulting
from the requisition must be determined by the
Minister.
(9) If there is a dispute as to the Minister's
30 determination, the Minister must refer the matter
for arbitration by a single arbitrator under the
Commercial Arbitration Act 1984.
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(10) Requisitioned property that has not been disposed
of must be returned as soon as it is safe to do so
after the Governor in Council revokes a
proclamation.
5 (11) The amendment, expiry or revocation of a
direction, prohibition or requisition does not
affect--
(a) the previous operation of the direction,
prohibition or requisition; or
10 (b) the validity of any action taken under the
direction, prohibition or requisition; or
(c) any penalty or punishment incurred in
respect of--
(i) any contravention of, or failure to
15 comply with, the direction, prohibition
or requisition before the amendment,
expiry or revocation; or
(ii) any proceeding or remedy in respect of
such a penalty or punishment.
20 208. Offence not to comply with direction etc.
(1) A person or body who is aware of a direction,
prohibition or requisition made under section 207
must comply with the direction, prohibition or
requisition.
25 (2) A person is deemed to be aware of a direction,
prohibition or requisition if the Minister has
caused--
(a) the direction, prohibition or requisition to be
published in a newspaper circulating in the
30 area in which the direction, prohibition or
requisition applies; or
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(b) details of the direction, prohibition or
requisition to be broadcast by means of radio
or television transmission in the area in
which the direction, prohibition or
5 requisition applies.
(3) In any proceedings for an offence against this
section, a certificate purporting to be signed by
the Minister to the effect that details of a
direction, prohibition or requisition were
10 broadcast by means of radio or television
transmission in a particular area on a specified day
is evidence of the facts set out in the certificate.
(4) In any proceedings for an offence against this
section, it is sufficient defence for the defendant
15 to prove that at the time of the commission of the
offence, the defendant--
(a) did not know; and
(b) could not reasonably have known--
of the direction, prohibition or requisition.
20 (5) A person must not contravene sub-section (1).
Penalty: In the case of a natural person,
240 penalty units.
In the case of a body corporate,
10 000 penalty units.
25 (6) An offence by a body corporate under
sub-section (5) is an indictable offence.
(7) If an offence is committed by a person by reason
of a failure to comply, within the period specified
in a direction, prohibition or requisition made
30 under section 207, with the requirements specified
in the direction, prohibition or requisition, the
offence, for the purposes of sub-section (8) is
deemed to continue so long as any requirement
specified in the direction, prohibition or
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requisition, remains undone, whether or not the
period has elapsed.
(8) If, under sub-section (7), an offence is deemed to
continue, the person who committed the offence
5 commits an additional offence on each day during
which the offence is deemed to continue and is
liable, upon conviction for such an additional
offence, to a penalty not exceeding one tenth of
the penalty for the first-mentioned offence.
10 209. Offence to obstruct a person carrying out a direction
etc.
A person must not obstruct another person--
(a) exercising a power given to; or
(b) complying with an obligation imposed on--
15 the other person under a direction, prohibition or
requisition under section 207 if the person has
been shown a copy of the direction, prohibition or
requisition.
Penalty: In the case of a natural person,
20 240 penalty units.
In the case of a body corporate,
10 000 penalty units.
210. Offences by bodies corporate
(1) If a body corporate commits an offence against
25 section 208 or 209, any officer of the body
corporate who was in any way, by act or omission,
directly or indirectly knowingly concerned in or
party to the commission of the offence is also
guilty of that offence and liable to the penalty for
30 it.
(2) An offence under sub-section (1) is an indictable
offence.
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(3) A person may be proceeded against and convicted
under a provision in accordance with sub-section
(1) whether or not the body corporate has been
proceeded against or convicted under that
5 provision.
(4) If in a proceeding for an offence against this
section it is necessary to establish the intention of
a body corporate, it is sufficient to show that a
servant or agent of the body corporate had that
10 intention.
(5) In sub-section (1), "officer", in relation to a body
corporate, means--
(a) a director, secretary or executive officer of
the body corporate; or
15 (b) any person in accordance with whose
directions or instructions the directors of the
body corporate are accustomed to act; or
(c) a person concerned in the management of the
body corporate.
20 211. Offences by partnerships or unincorporated
associations
If this Part provides that a person is guilty of an
offence, that reference to a person must--
(a) in the case of a partnership, be read as a
25 reference to each member of the partnership;
and
(b) in the case of an unincorporated body or
association, be read as a reference to each
member of the committee of management of
30 the body or association.
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212. Judicial notice
All courts and tribunals must take judicial notice
of any proclamation, direction, prohibition or
requisition made, given or imposed under this
5 Part.
213. Immunity from suit
A person acting in good faith in the execution of
this Part or any proclamation, direction,
prohibition or requisition under this Part is not
10 liable to any action, claim or demand on account
of any damage, loss or injury sustained or alleged
to be sustained because of the operation of this
Part or of anything done or purporting to be done
under this Part or any proclamation, direction,
15 prohibition or requisition under this Part.
Division 2--Enforcement
214. Powers of entry--enforcement
(1) If an inspector has reasonable grounds for
suspecting that there is on any land or premises a
20 particular thing that may be evidence of the
commission of an offence against this Part, the
inspector may--
(a) enter the land or premises; and
(b) search for the thing.
25 (2) An inspector must not enter land or premises
under this section except--
(a) with the written consent of the occupier of
the land or premises; or
(b) under the authority of a search warrant.
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215. Occupier to be given copy of consent
(1) An occupier who consents in writing to entry of
his or her land or premises under section 214 must
be given a copy of the signed consent
5 immediately.
(2) If, in any proceeding, a written consent is not
produced to the court, it must be presumed, until
the contrary is proved, that the occupier did not
consent to the entry and search.
10 216. Search warrant
(1) An inspector may apply to a magistrate for the
issue of a search warrant in relation to particular
land or premises if the inspector believes on
reasonable grounds that there is, or may be within
15 the next 72 hours, on the land or premises a
particular thing that may be evidence of the
commission of an offence against this Part.
(2) A magistrate may issue a search warrant under
this section if the magistrate is satisfied by
20 evidence on oath, whether oral or by affidavit, that
there are reasonable grounds for suspecting that
there is, or may be within the next 72 hours, on
land or premises a particular thing that may be
evidence of the commission of an offence against
25 this Part.
(3) The search warrant may authorise an inspector
named in the warrant and any assistants the
inspector considers necessary--
(a) to enter the land or premises, or part of the
30 land or premises, named or described in the
warrant; and
(b) to search for the thing named or described in
the warrant.
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(4) In addition to any other requirement, a search
warrant issued under this section must state--
(a) the offence suspected; and
(b) the land or premises to be searched; and
5 (c) a description of the thing for which the
search is to be made; and
(d) any conditions to which the warrant is
subject; and
(e) whether entry is authorised to be made at any
10 time or during stated hours; and
(f) a day, not later than 7 days after the issue of
the warrant, on which the warrant ceases to
have effect.
(5) A search warrant must be issued in accordance
15 with the Magistrates' Court Act 1989 and in the
form prescribed under that Act.
(6) The rules to be observed with respect to search
warrants mentioned in the Magistrates' Court
Act 1989 extend and apply to warrants under this
20 section.
217. Announcement before entry
(1) Before executing a search warrant, the inspector
named in the warrant or a person assisting the
inspector named in the warrant must--
25 (a) announce that he or she is authorised by the
warrant to enter the land or premises; and
(b) give any person at the land or premises an
opportunity to allow entry to the land or
premises.
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(2) The inspector or a person assisting the inspector
need not comply with sub-section (1) if he or she
believes on reasonable grounds that immediate
entry to the land or premises is required to
5 ensure--
(a) the safety of any person; or
(b) that the effective execution of the warrant is
not frustrated.
218. Copy of warrant to be given to occupier
10 If the occupier or another person who apparently
represents the occupier is present at the land or
premises when a search warrant is being executed,
the inspector must--
(a) identify himself or herself to that person by
15 producing his or her identity card for
inspection by that person; and
(b) give to that person a copy of the execution
copy of the warrant.
Penalty: 10 penalty units.
20 Division 3--Infringement Notices
219. Definition
In this Division--
"prescribed offence" means an offence against
section 208(5) constituted by the use of gas
25 by a person in contravention of a direction,
prohibition or requisition under section
207--
(a) of which the person is aware or is
deemed to be under 208 to be aware;
30 and
(b) which applies to the person--
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but does not include an offence by a body
corporate.
220. Power to serve a notice
(1) An inspector may serve an infringement notice on
5 any person that he or she has reason to believe has
committed a prescribed offence.
(2) An infringement notice may be served on a
person--
(a) by delivering it personally to the person; or
10 (b) by sending it by post addressed to the
person's last known place of residence or
business.
221. Form of notice
An infringement notice must state--
15 (a) the date of the notice;
(b) that the alleged offence is a prescribed
offence within the meaning of section 219;
(c) the nature, and a brief description, of the
alleged offence;
20 (d) the date, time and place of the alleged
offence;
(e) the infringement penalty for the alleged
offence;
(f) the manner in which the infringement
25 penalty may be paid;
(g) the time (being not less than 28 days after
the date on which the notice is served) within
which the infringement penalty must be paid;
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(h) that, if the amount of the infringement
penalty is paid before the end of the time
specified in the notice, the matter will not be
brought before the Magistrates' Court unless
5 the notice is withdrawn within 28 days after
the date on which it was served;
(i) that the person is entitled to disregard the
notice and defend any proceedings in respect
of the offence in the Magistrates' Court;
10 (j) any other prescribed particulars.
222. Infringement penalties
The infringement penalty for an offence against a
prescribed offence is $500.
223. Late payment of penalty
15 An inspector may accept payment of the
infringement penalty even after the expiration of
the time for payment stated in the infringement
notice if--
(a) neither a charge has been filed nor a courtesy
20 letter served under Part 2 of Schedule 7 to
the Magistrates' Court Act 1989 in respect
of the offence to which the infringement
penalty relates; and
(b) the infringement notice has not been
25 withdrawn.
224. Withdrawal of notice
(1) An inspector may withdraw an infringement
notice at any time within 28 days after the date on
which the notice was served by serving a
30 withdrawal notice on the person served with the
infringement notice.
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(2) A withdrawal notice may be served on a person--
(a) by delivering it personally to the person; or
(b) by sending it by post addressed to the
person's last known place of residence or
5 business.
(3) An infringement notice may be withdrawn even if
the infringement penalty has been paid.
(4) If an infringement notice is withdrawn, the
amount of any infringement penalty paid must be
10 refunded and the Consolidated Fund is, to the
necessary extent, appropriated accordingly.
225. Payment expiates offence
If an infringement notice is not withdrawn and the
infringement penalty is paid within the time for
15 payment stated in the notice or is accepted in
accordance with section 223, then--
(a) the person on whom the notice was served
has expiated the offence by that payment;
and
20 (b) no proceedings may be taken against that
person in respect of that offence; and
(c) no conviction is to be taken to have been
recorded against that person for that offence.
226. Payment not to have certain consequences
25 (1) The payment of an infringement penalty under
this Division is not and must not be taken to be--
(a) an admission of guilt in relation to the
offence; or
(b) an admission of liability for the purpose of
30 any civil claim or proceeding arising out of
the same occurrence and the payment does
not in any way affect or prejudice any such
claim or proceeding.
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(2) The payment of an infringement penalty under
this Division must not be referred to in any report
provided to a court for the purpose of determining
sentence for an offence.
5 227. Prosecution after service of infringement notice
A charge may be filed in respect of an offence to
which an infringement notice relates if--
(a) the infringement penalty has not been paid
within the time for payment stated in the
10 notice or in accordance with section 223; or
(b) the notice is withdrawn.
228. Enforcement of infringement penalty
Payment of the infringement penalty may be
enforced in accordance with Part 2 of Schedule 7
15 of the Magistrates' Court Act 1989 if--
(a) the infringement notice is an infringement
notice within the meaning of Schedule 7 to
that Act; and
(b) the infringement penalty has not been paid
20 within the time stated in the notice or in
accordance with section 223; and
(c) the notice has not been withdrawn; and
(d) a charge has not been filed in accordance
with section 227.
25 _______________
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Act No.
PART 10--GENERAL
229. Delegation by Minister
The Minister may, by instrument, delegate to any
person any function or power of the Minister
5 under this Act, other than this power of
delegation.
230. Offences by bodies corporate
(1) If a body corporate commits an offence against
this Act, any officer of the body corporate who
10 was in any way, by act or omission, directly or
indirectly knowingly concerned in or party to the
commission of the offence is also guilty of that
offence and liable to the penalty for it.
(2) A person may be proceeded against and convicted
15 under a provision in accordance with sub-section
(1) whether or not the body corporate has been
proceeded against or convicted under that
provision.
(3) If in a proceeding for an offence against this
20 section it is necessary to establish the intention of
a body corporate, it is sufficient to show that a
servant or agent of the body corporate had that
intention.
(4) In sub-section (1), "officer", in relation to a body
25 corporate, means--
(a) a director, secretary or executive officer of
the body corporate; or
(b) any person in accordance with whose
directions or instructions the directors of the
30 body corporate are accustomed to act; or
(c) a person concerned in the management of the
body corporate.
231. Proceedings for offences
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(1) A person authorised by the Office of Gas Safety
or VENCorp either generally or in a particular
case to bring proceedings for an offence against
this Act or the regulations may bring those
5 proceedings.
(2) If proceedings referred to in sub-section (1) are
brought by a person authorised to do so, the
proceedings may be conducted by any other
person authorised by the Office of Gas Safety or
10 VENCorp to bring proceedings of that kind.
(3) All courts must take judicial notice of the fact that
a person is authorised by the Office of Gas Safety
or VENCorp to bring proceedings referred to in
sub-section (1) or conduct proceedings under sub-
15 section (2), as the case requires.
(4) In this section "Office of Gas Safety" means the
Office of Gas Safety under the Gas Safety Act
1997.
232. Gas retailer not liable for failure to supply
20 (1) Despite anything to the contrary in this or any
other Act or in any contract, a gas retailer is not
liable to any penalty or damages for failing to
supply gas if the failure arises out of any accident
or cause beyond the control of the gas retailer.
25 (2) A gas retailer may enter into an agreement with a
person varying or excluding the operation of sub-
section (1) and, to the extent of that agreement,
that sub-section does not apply.
(3) Nothing in sub-section (1) or (2) affects the
30 liability of a gas company under the Gas Safety
Act 1997.
233. Exemption from liability to transmit or convey gas
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Act No.
(1) Despite anything to the contrary in this or any
other Act but subject to sub-section (2) or in any
contract--
(a) a gas transmission company is not liable to
5 any penalty or damages for failing--
(i) to accept gas for injection into, or to
make gas available for withdrawal
from, a transmission pipeline; or
(ii) to make a transmission pipeline
10 available to accept gas for injection into
it or for the withdrawal of gas from it--
if the failure arises out of any accident or
cause beyond the control of the gas
transmission company;
15 (b) a gas distribution company is not liable to
any penalty or damages for failing to convey
gas through distribution pipelines if the
failure arises out of any accident or cause
beyond the control of the gas distribution
20 company.
(2) A gas transmission company or a gas distribution
company may enter into an agreement with a
person varying or excluding the operation of sub-
section (1) and, to the extent of that agreement,
25 that sub-section does not apply.
(3) Nothing in sub-section (1) or (2) affects the
liability of a gas company under the Gas Safety
Act 1997.
234. Evidence of ownership
30 In any legal proceedings by a gas distribution
company or gas retailer, in addition to any other
method of proof available--
(a) evidence that the person proceeded against is
shown in the books of the gas distribution
182
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Gas Industry Act 2001
s. 235
Act No.
company or gas retailer to be the owner or
occupier of the premises in relation to which
the proceedings are instituted; or
(b) a certificate by the chief executive officer of
5 the municipal council within the municipal
district of which premises are situated to the
effect that a party to the proceedings is rated
in respect of those premises--
is evidence and, in the absence of evidence to the
10 contrary, proof, that the party is the owner or
occupier (as the case may be) of the premises and
the consumer of any gas supplied to the premises.
235. Supreme Court--limitation of jurisdiction
It is the intention of sections 54, 84, 113, 188, 189
15 and 213 of this Act to alter or vary section 85 of
the Constitution Act 1975.
236. Regulations
(1) The Governor in Council may make regulations
for or with respect to--
20 (a) prescribing the method for calculating any
charge for the supply of gas;
(b) the protection of any gas undertakings,
works, gas fittings or property of a gas
company and the prevention of any
25 interference with them and generally
providing for the safety of persons and
property;
(c) the appointment of a registrar of the appeal
tribunal;
30 (d) prescribing penalties not exceeding 5 penalty
units for breaches of the regulations;
(e) prescribing any matter or thing authorised or
required to be prescribed or necessary or
183
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s. 236
Act No.
convenient to be prescribed for carrying this
Act into effect.
(2) The regulations may provide that--
(a) a specified regulatory provision or a
5 regulatory provision of a specified class; or
(b) a specified conduct provision or a conduct
provision of a specified class--
is, for the purposes of the MSO Rules, a civil
penalty provision.
10 (3) The regulations may prescribe, for a contravention
of a civil penalty provision, an amount not
exceeding $100 000 that a court may determine is
payable by a person who contravenes the
provision.
15 (4) Regulations made under this Act may be made--
(a) so as to apply--
(i) at all times or at a specified time; or
(ii) throughout the whole of the State or in
a specified part of the State;
20 (b) so as to require a matter affected by the
regulations to be--
(i) in accordance with a specified standard
or specified requirement; or
(ii) approved by or to the satisfaction of a
25 prescribed person;
(c) so as to incorporate, adopt or apply, wholly
or partially or as amended by the regulations,
the provisions of any document, standard,
rule, specification or method formulated,
30 issued, prescribed or published by any
authority or body whether--
184
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(i) as formulated, issued, prescribed or
published at the time the regulation is
made or at any time before the
regulation is made; or
5 (ii) as amended from time to time;
(d) so as to confer a discretionary authority on a
prescribed person;
(e) so as to provide, in a specified case or class
of cases for the exemption of persons or
10 things or a class of persons or things from
any of the provisions of the regulations,
whether unconditionally or on specified
conditions and either wholly or to the extent
specified.
15 (5) The regulations are subject to disallowance by a
House of Parliament.
__________________
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Sch.
Act No.
SCHEDULE
EASEMENTS FOR USE OF GAS COMPANY
The right of the gas company and its successors and transferees and its and
their contractors, servants or agents--
5 (a) to enter at any time the land to which the easement applies, with or
without vehicles or equipment;
(b) to use the land for the purposes of, or incidental to, the conveyance of
gas, including the laying down or construction on the land of pipelines;
(c) to keep the land free from buildings or obstructions (including trees);
10 (d) to erect and maintain gates in any fences;
(e) to inspect, maintain, alter, renew or remove pipelines or works on the
land--
free from any interference to the surface of the land to a depth greater than
0·3 metres without the prior written consent of the gas company.
15
186
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Gas Industry Act 2001
Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
187
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Act No.
INDEX
Subject Clause
ACCC
definition 3
functions and powers 19
functions and powers regarding MSO Rules 52, 54, 5657, 59
functions and powers regarding price regulation 20
review of provisions regarding VENCorp 205
3
Access Code (def.)
Act
application to certain gas companies 7
commencement 2
construction 6
Crown bound by 4
extra-territorial operation 5
purpose 1
29, 41
Administrators
Anti-competitive conduct See Competition rule
Appeal Tribunal
appeals to Supreme Court from 104105
constitution 95, 102
decisions of 99100, 113
disclosure of interests of members 101
exclusion of other proceedings 113
material considered by 98
operation of orders subject to review 105
procedure 9697
referral of matters to ORG 103
review of decisions regarding
authorisation of conduct by ORG 82
disclosure of confidential information 111
orders made under competition notices 94
Appeals
regarding
authorisation of conduct by ORG 82
disclosure of confidential information 111
orders made under competition notices 94
prohibited interests 137
to Appeal Tribunal 82, 94, 111
to Supreme Court 104105, 137
Bodies corporate
deemed subsidiaries 72
degree of power in gas market 15
holding companies 73
joint ventures 75
offences by 210, 230
related bodies corporate 74, 114
See also Competition rule;
188
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Act No.
Subject Clause
Interests in shares in corporations
4951
Community services agreements
licence conditions 29
Competition Code
authorisation of acts, things for purposes of 53
Competition in retail gas market
See Retail competition
Competition notices
appeals against orders made under 94
evidentiary provisions 86
issue of 8385
making of orders under 8893
notice of orders made under 87, 89
Competition rule
anti-competitive conduct 7879
authorisation of conduct by ORG 8082
bodies corporate deemed subsidiaries 72
construction of references
conduct 70
holding companies 73
joint ventures 75
purpose 71
related bodies corporate 74
significant producers 77
contravention
actions for damages 107
competition notices 8393
declaratory relief 108
injunctions 106
relationship of Part 5 to other laws 76
review of operation of Part 5 112
Concessions See Community services agreements
Confidential information
See Disclosure of confidential information
Cross-ownership
See Interests in shares in corporations
36
Customer dispute resolution
Customers
community services agreements 29, 4951
customer-related standards, practices in licences 29, 32
customers of another licensee 34
deemed contracts with 29, 4448
definition 3
disconnections of gas 43
dispute resolution 36
domestic customers 42, 46, 4951
former franchise customers 4445
prescribed customers 21
relevant customers 43, 47
reliability of retail supply to 33
189
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Gas Industry Act 2001
Act No.
Subject Clause
retail customers 48
small business customers 42, 46
3, 114
Definitions
Disclosure of confidential information
restrictions on 80, 110111, 201
Disputes See Customer dispute resolution
Distribution companies
application of Act to 7
customer dispute resolution 36
deemed contracts with retail customers 48
definition of distribute, gas distribution company 3
easements 143
evidentiary provisions 234
exclusive franchises 27
failure to convey gas 233
initial distributors 114, 128
land vested in 142, 144
licensing requirement 22
offences against 152
pipelines owned or operated by 13
power to break up roads 149
power to enter land, carry out works 148
price regulation 20
prohibited interests 128
retail gas market 63, 64, 68
VENCorp's directions to 186
See also Licences
Distribution pipelines
definition 3
not considered part of land 140
owned or operated by distribution companies 13
price regulation 20
Distribution systems
connections to and adjuncts 13
declarations 11
definition of gas distribution system 3
primary distribution system (def.) 3
retail gas market rules 6263
Easements
acquired by distribution, transmission companies 143
creation in subdivisions 146
over lands held by Crown licensees or lessees 147
rights of gas companies Sch.
Emergency provisions
compliance with Minister's directions 208
immunity for certain people 213
Minister's powers and directions 207, 212
offences 208211, 219
powers of inspectors 214218
190
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Gas Industry Act 2001
Act No.
Subject Clause
powers of officers, employees of gas companies 156
proclamation of application of 206, 212
Entry
powers of inspectors 192196
powers of inspectors in supply emergencies 214218
powers of officers, employees of gas companies 155
Evidentiary provisions
competition notices 86
documents issued by VENCorp 204
owner of occupier of premises 234
3
Gas (def.)
Gas companies
agreements for operation of pipelines 141
declarations regarding 7
definition 3
easements 143, 146147, Sch.
offences against 150152
officers and employees 153157
See also Distribution companies; Retailers
Transmission companies
3
Gas fitting (def.)
Gas market
degree of power of bodies corporate in 15
Victorian gas market (def.) 3
See also MSO rules; Retail competition
Gas producers
definition 3
information to be provided to VENCorp 200201
See also Significant producers
Gas sales and supply
ancillary supply point (def.) 37
disconnections 43
emergency provisions 206213
offences 152
price regulation 2021
supply point (def.) 37
VENCorp's directions regarding 186
See also Distribution companies; Retailers
Gas storage facilities
See Underground storage facilities
3
GASCOR (def.)
3, 8
Gaseous fuel
Infringements
notices 220221
penalties 222223, 225226,
228
prescribed offence (def.) 219
prosecution after service of notice 227
withdrawal of notices 224
191
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Gas Industry Act 2001
Act No.
Subject Clause
Inspectors
appointment and identity cards 191
definition 3
impersonation 199
obstruction of 197
police assistance to 198
powers of entry 192196
powers of entry in emergencies 214218
powers regarding infringements 220, 223224
powers regarding search warrants 194196, 216218
Interests in shares in corporations
application and construction of Part 6 126127
construction of references to Corporations Law 117
controlling interests 120, 123125, 131
definitions 114, 127
disposal of shares 132
disregard of certain interests 123125
forfeiture of shares 132, 138
ORG's power to require information regarding 131
partnerships deemed to be corporations 127
prohibited interests 128139
relevant agreements (def.) 114
relevant corporations (def.) 114, 127
relevant interests 115, 122125, 131
sale of forfeited shares 138
see through interests 124
stock 119
substantial interests 121, 123125, 131
units in unit trusts 118
voting power 116
voting rights 131, 132, 133, 135
voting share (def.) 114
Licences
applications 2526
conditions 2829, 38
conditions regarding
customer dispute resolution 36
customer-related standards, procedures 32
industry codes, standards, rules, guidelines 31
retail gas market 64
retail sales by significant producers 37
retailers 29, 35, 36, 37, 42
suppliers of last resort 34
contravention of conditions 41
duration 28
exclusive franchises 27
exemptions 24
fees 30, 40
granting of 2627, 39
192
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Gas Industry Act 2001
Act No.
Subject Clause
operations requiring licence 2223
refusal 26
revocation 34, 38, 39, 132,
134
submissions on 26, 40
suspension 34
transfer 40
variation 27, 36, 38, 39
Market and system operation rules
See MSO rules
Minister
delegation 229
powers regarding
amendment of VENCorp's directions 187
emergencies 207, 212
VENCorp 163, 166, 168,
170171, 180, 185,
205
licence fees 30
review of provisions regarding VENCorp 205
review of operation of Part 5 and section 37 by 112
MSO Rules
authorisation of 53
civil penalty provision (def.) 3
conduct provision (def.) 3
contraventions
actions for damages 58
declaratory relief 59
exclusion of certain proceedings 5455
injunctions 57
pecuniary penalties 56
definition 3
market participants, participants (def.) 3, 53
purpose 52
regulatory provision (def.) 3
suspension, termination of right to acquire gas
under 34
3
Natural gas (def.)
Offences
by bodies corporate 210, 230
by partnerships, unincorporated associations 211
infringements 219228
prescribed offence (def.) 219
proceedings for 231
regarding
gas supply 152
false or misleading information 109
impersonation of inspectors 199
non-compliance with VENCorp's directions 186, 190, 192, 194
193
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Gas Industry Act 2001
Act No.
Subject Clause
obstruction of inspectors 197
obstruction of staff of gas companies 157
pipelines 150151
supply emergencies 208211, 219
threats, intimidation, coercion 109
unauthorised operations 2223
Office of Gas Safety
persons authorised to bring proceedings 231
Office of the Regulator-General
appeals against, review of decisions of 82, 111, 113, 137
authorisation of conduct of significant producers 8082
certificates issued by 123125
functions and powers regarding
administrators 41
community services agreements 51
customer dispute resolution 36
customer-related standards, practices 32
disclosure of confidential information 110111
distribution contracts 48
obtaining of information and documents 109
price regulation 2021
prohibited interests 123125, 129136
reliability of retail supply 33
retail competition 6168
retail sales 4243
sale of forfeited shares 138
suppliers of last resort 34
objectives 18
prescribed duties (def.) 109
referral of matters from Appeal Tribunal to 103
See also Competition notices; Licences
Office of the Regulator-General Act 1994
application 17, 32, 66
114, 153, 210, 230
Officer (def.)
Partnerships
deemed to be corporations 127
licences 28
offences by 211
Pipelines
agreements for operation of 141
apparatus and works (def.) 3
construction (def.) 3
declarations 9, 10
definition 3
emergency powers of staff of gas companies 156
not considered part of land 140
offences 150151
194
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Act No.
Subject Clause
operation (def.) 3
rateability of land used for pipes 145
See also Distribution pipelines;
Transmission pipelines
Port Campbell facility
definition 3
ORG's power to require information regarding 131
authorisation requirement 23
prohibited interests 128, 131, 134
2021
Price regulation
Prohibited interests
appeals against ORG's determinations 137
description 128
disposal of shares 132
exemptions 129130
information regarding 131
ORG's powers, determinations, actions 129136, 138
service of notices regarding 139
unlawful to hold 128
122, 236
Regulations
Retail competition
costs incurred by VENCorp 69
licence conditions regarding 64
retail gas market rules
amendments to 67
approval 65, 67
costs of distribution companies 68
for distribution systems 6263
for transmission systems 62
matters included 60
operation 66
principles 61
Retailers
application of Act to 7
community services agreements 29, 4951
construction of references to sales of gas by 16
definition of gas retailer 3
customer dispute resolution 36
deemed contracts with customers 29, 4447
disconnections of gas by 43
evidentiary provisions 234
exclusive franchises 27
failure to supply gas 232
licence conditions 29, 35, 36, 37, 42
licensing requirement 22
new retailers 114, 128
payment of costs of retail competition 6869
price regulation 2021
prohibited interests 128
195
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Act No.
Subject Clause
reliability of supply 29, 33
restrictions on sales by significant producers 37
restrictions on sales to certain customers 35
tariffs, terms and conditions of sale 4243
See also Licences
Review See Appeals
194196, 216218
Search warrants
Significant producers
anti-competitive conduct 7879
authorisation of conduct by ORG 8082
construction of references to 77
definition 3
prohibited interests 128
restrictions on retail sales by 37, 112
review of provisions regarding 112
See also Competition rule
Storage facilities See Underground storage facilities
Supreme Court
appeals from Appeal Tribunal to 104105
appeals regarding prohibited interests to 137
injunctions 106
jurisdiction regarding competition rule 106, 108
jurisdiction regarding MSO rules 57, 59
limitation of jurisdiction 235
3, 2021
Tariffs and charges orders
Trade Practices Act 1974 (Comm)
authorisation of acts, things for purposes of 53
Transmission companies
application of Act to 7
definition of transmit, gas transmission company 3
easements 143
failure to transmit gas 233
land vested in 142, 144
MSO Rules 5259
pipelines owned or operated by 14
power to break up roads 149
power to enter land, carry out works 148
prohibited interests 128
VENCorp's directions to 186
Transmission pipelines
declarations 10
definition 3
ORG's power to require information regarding 131
information to be provided to VENCorp 200201
not considered part of land 140
offences 151
owned or operated by transmission companies 14
price regulation 20
prohibited interests 128, 131, 134
196
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Gas Industry Act 2001
Act No.
Subject Clause
Transmission systems
connections to and adjuncts 14
declarations 12
definition of gas transmission system 3
primary transmission system (def.) 3
prohibited interests of TSO 128
retail gas market rules 62
114, 127, 128
TSO
Underground storage facilities
definition 3
information to be provided to VENCorp 200201
licensing requirement 23
See also Licences
VENCorp
agreements with distribution companies 13
agreements with transmission companies 14
amendment of MSO Rules by 52
annual report 185
board
directors 167169, 172, 175,
177178
constitution 165166
disclosure of interests 175
liability of directors 178
meetings and procedure 173
proceedings against directors 170
prohibition on loans to directors 177
resolutions without meetings 174
validity of decisions 176
borrowing and investment powers 182
chief executive officer 179
corporate plan 180181, 185
costs of retail competition 69
Crown not represented by 159
definition 3
delegation of powers 164
directions by 186189
directions from Minister to 163, 171, 185
disclosure of confidential information by 201
dividends 183
establishment 158
evidence of documents issued by 204
functions and powers 160163
information to be provided to 200201
inspectors appointed by 191199
non-commercial functions 163
persons authorised to bring proceedings 231
protection from liability for directors, staff 188189
rateability of land vested in 202
197
541174B.A1-1/6/2001 BILL LA AS SENT 1/6/2001
Gas Industry Act 2001
Act No.
Subject Clause
retail gas market rules 62
review of provisions regarding 205
service of documents on 203
subsidiaries of 162
198
541174B.A1-1/6/2001 BILL LA AS SENT 1/6/2001
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