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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
National Gas (Victoria) Bill 2008
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purpose 1
2 Commencement 2
3 Definitions 2
4 Crown to be bound 2
5 Application to coastal waters 2
6 Extra-territorial operation 3
PART 2--NATIONAL GAS (VICTORIA) LAW AND NATIONAL
GAS (VICTORIA) REGULATIONS 4
7 Application of National Gas Law 4
8 Application of Regulations under National Gas Law 4
9 Interpretation of some expressions in National Gas (Victoria)
Law and National Gas (Victoria) Regulations 4
PART 3--CROSS VESTING OF POWERS 6
10 Conferral of powers on Commonwealth Minister and
Commonwealth bodies to act in this State 6
11 Conferral of powers on Ministers of participating States and
Territories to act in this State 6
12 Conferral of functions or powers on State Minister 7
PART 4--GENERAL 8
13 Exemption from taxes 8
14 Actions in relation to cross boundary pipelines 9
15 Conferral of functions and powers on Commonwealth bodies 10
16 Supreme Court--limitation of jurisdiction 10
561047B.I-6/5/2008 i BILL LA INTRODUCTION 6/5/2008
Clause Page
PART 5--SPECIFIC VICTORIAN TRANSITIONAL
ARRANGEMENTS 11
Division 1--Interpretation 11
17 Definitions 11
18 Meaning of gas distribution system regulatory duty 15
19 Meaning of gas distribution system regulatory function or
power 15
20 Specification of Gas Distribution System Code provisions by
Minister 16
21 Role of Interpretation of Legislation Act 1984 16
Division 2--Current and pending Victorian gas distribution system
access arrangement revisions 17
22 Transitional clauses in NGL relating to distribution pipeline
services access arrangements do not apply 17
23 Gas distribution access arrangements under review 18
24 Gas distribution access arrangement revision decisions under
review 18
25 Revised gas distribution access arrangements become full
access arrangements under NGL 19
26 Certain provisions of the Access Code to continue to apply to
revised gas distribution access arrangement 20
27 Certain decisions relating to certain access arrangements are
reviewable regulatory decisions for purposes of National Gas
(Victoria) Law 21
Division 3--AER functions, powers and duties under State
instruments 22
28 Certain ESC functions, powers and duties conferred and
imposed on the AER 22
29 ESC ceases to have distribution pipeline services related
regulatory functions, powers and duties 24
30 Enforcement by AER of certain provisions of Victorian
distribution licences 25
31 ESC cannot enforce certain gas distribution licence conditions
that the AER can enforce 26
32 AER may request amendment of Gas Distribution System
Code or ESC Guideline No. 17 27
33 Appeals against certain decisions or actions of the AER 27
34 Provision of information and assistance by ESC to the AER 29
Division 4--Miscellaneous matters 30
35 Consolidated access arrangements not permitted in respect
of 2 or more covered distribution pipelines 30
36 GPAL obligation comply with published general accounting
guidelines continues 30
561047B.I-6/5/2008 ii BILL LA INTRODUCTION 6/5/2008
Clause Page
37 ESC Guideline No. 17 becomes a regulatory information order
after specified day 31
38 Matters to be taken into account when AER makes or prepares
regulatory information instruments 32
PART 6--REPEALS AND AMENDMENTS 34
Division 1--Repeal of Gas Pipelines Access (Victoria) Act 1998 34
39 Repeal 34
Division 2--Amendment of this Act when Offshore Petroleum Act
2006 of the Commonwealth commences 34
40 Amendment of section 9 of this Act--New definitions
substituted 34
Division 3--Other amendments 35
41 Gas Industry Act 2001--References to Access Code 35
42 Interpretation of Legislation Act 1984--New references to
National Gas (Victoria) Law and Regulations substituted 35
38BA References to National Gas Law 35
43 Pipelines Act 2005--Reference to Gas Pipelines Access
(Victoria) Act 1998 36
44 Federal Courts (State Jurisdiction) Act 1999--Reference to
Gas Pipelines Access (Victoria) Act 1998 36
ENDNOTES 37
561047B.I-6/5/2008 iii BILL LA INTRODUCTION 6/5/2008
PARLIAMENT OF VICTORIA
Introduced in the Assembly
National Gas (Victoria) Bill 2008
A Bill for an Act to establish a framework to enable third parties to
gain access to certain natural gas pipeline services, to repeal the Gas
Pipelines Access (Victoria) Act 1998, to consequentially amend the
Federal Courts (State Jurisdiction) Act 1999, the Gas Industry Act
2001, the Interpretation of Legislation Act 1984 and the Pipelines
Act 2005 and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purpose
The main purpose of this Act is to provide for the
establishment of a national framework to enable
5 third parties to gain access to certain natural gas
pipeline services.
561047B.I-6/5/2008 1 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 1--Preliminary
s. 2
2 Commencement
This Act comes into operation on a day or days to
be proclaimed.
3 Definitions
5 (1) In this Act--
National Gas (Victoria) Law means the
provisions applying because of section 7;
National Gas (Victoria) Regulations means the
provisions applying because of section 8;
10 South Australian Act means the National Gas
(South Australia) Act 2008 of South
Australia.
(2) Words and expressions used in the National Gas
(Victoria) Law and in this Act have the same
15 respective meanings in this Act as they have in
that Law.
(3) This section does not apply to the extent that the
context or subject matter otherwise indicates or
requires.
20 4 Crown to be bound
This Act, the National Gas (Victoria) Law and the
National Gas (Victoria) Regulations bind the
Crown, not only in right of Victoria but also, so
far as the legislative power of the Parliament
25 permits, the Crown in all its other capacities.
5 Application to coastal waters
(1) This Act, the National Gas (Victoria) Law and the
National Gas (Victoria) Regulations apply in the
coastal waters of this State as if the coastal waters
30 were within the limits of the State.
561047B.I-6/5/2008 2 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 1--Preliminary
s. 6
(2) In this section--
adjacent area in respect of the State means the
adjacent area of this jurisdiction under the
National Gas (Victoria) Law (as defined by
5 section 9(1) of this Act);
coastal waters, in relation to this State, means any
sea that is on the landward side of the
adjacent area in respect of the State but is not
within the limits of the State.
10 6 Extra-territorial operation
It is the intention of the Parliament that this Act,
the National Gas (Victoria) Law and the National
Gas (Victoria) Regulations should, so far as
possible, operate to the full extent of the extra-
15 territorial legislative power of the State.
__________________
561047B.I-6/5/2008 3 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 2--National Gas (Victoria) Law and National Gas (Victoria)
s. 7
Regulations
PART 2--NATIONAL GAS (VICTORIA) LAW AND
NATIONAL GAS (VICTORIA) REGULATIONS
7 Application of National Gas Law
The National Gas Law set out in the Schedule to
5 the South Australian Act, as in force for the time
being--
(a) applies as a law of Victoria; and
(b) as so applying may be referred to as the
National Gas (Victoria) Law.
10 8 Application of Regulations under National Gas Law
The Regulations in force for the time being under
Part 3 of the South Australian Act--
(a) apply as regulations in force for the purposes
of the National Gas (Victoria) Law; and
15 (b) as so applying may be referred to as the
National Gas (Victoria) Regulations.
9 Interpretation of some expressions in National Gas
(Victoria) Law and National Gas (Victoria)
Regulations
20 (1) In the National Gas (Victoria) Law and the
National Gas (Victoria) Regulations--
adjacent area of another participating
jurisdiction means the area that is identified
in section 5A of the Petroleum (Submerged
25 Lands) Act 1967 of the Commonwealth as
being the adjacent area in respect of a State
(other than this State) or the Northern
Territory;
adjacent area of this jurisdiction means the area
30 that is identified in section 5A of the
Petroleum (Submerged Lands) Act 1967 of
the Commonwealth as being the adjacent
area in respect of this State;
561047B.I-6/5/2008 4 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 2--National Gas (Victoria) Law and National Gas (Victoria)
s. 9
Regulations
Court means the Supreme Court of Victoria;
designated Minister means the Commonwealth
Minister;
Legislature of this jurisdiction means the
5 Parliament of Victoria;
National Gas Law or this Law means the
National Gas (Victoria) Law;
this jurisdiction means the State of Victoria.
(2) The Acts Interpretation Act 1915, and other Acts,
10 of South Australia do not apply to--
(a) the National Gas Law set out in the Schedule
to the South Australian Act in its application
as a law of Victoria; or
(b) the regulations in force for the time being
15 under Part 3 of the South Australian Act in
their application as Regulations in force for
the purposes of the National Gas (Victoria)
Law.
__________________
561047B.I-6/5/2008 5 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 3--Cross Vesting of Powers
s. 10
PART 3--CROSS VESTING OF POWERS
10 Conferral of powers on Commonwealth Minister
and Commonwealth bodies to act in this State
(1) The Commonwealth Minister and the
5 Commonwealth bodies have power to do acts in
or in relation to this State in the performance or
exercise of a function or power expressed to be
conferred on them respectively by the national gas
legislation of another participating jurisdiction.
10 (2) In this section--
Commonwealth bodies means any of the
following--
(a) AER; and
(b) NCC; and
15 (c) the Tribunal.
11 Conferral of powers on Ministers of participating
States and Territories to act in this State
The Minister of a participating jurisdiction has
power to do acts in or in relation to this State in
20 the performance or exercise of a function or
power expressed to be conferred on the Minister
by the national gas legislation of another
participating jurisdiction.
561047B.I-6/5/2008 6 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 3--Cross Vesting of Powers
s. 12
12 Conferral of functions or powers on State Minister
If the national gas legislation of another
participating jurisdiction confers a function or
power on the Minister, the Minister--
5 (a) may perform that function or exercise that
power; and
(b) may do all things necessary or convenient to
be done in connection with the performance
or exercise of that function or power.
__________________
561047B.I-6/5/2008 7 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 4--General
s. 13
PART 4--GENERAL
13 Exemption from taxes
(1) Any duty or other tax imposed by or under a law
of this State is not payable in relation to--
5 (a) an exempt matter; or
(b) anything done (including, for example, a
transaction entered into or an instrument or
document made, executed, lodged or given)
because of, or arising out of, an exempt
10 matter.
(2) In this section--
exempt matter means a transfer of assets or
liabilities--
(a) that is made for the purpose of ensuring
15 that a person does not carry on a
business of producing, purchasing or
selling natural gas or processable gas in
breach of any ring fencing requirements
of the national gas legislation or for the
20 purpose of the separation of certain
businesses or business activities from
other businesses or business activities
of a person as required by an AER ring
fencing determination; and
25 (b) that the Minister and the Treasurer
declare from time to time by notice
published in the Government Gazette to
be an exempt matter for the purposes of
this section.
561047B.I-6/5/2008 8 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 4--General
s. 14
14 Actions in relation to cross boundary pipelines
(1) If a pipeline is a cross boundary pipeline, any
action taken under the national gas legislation of a
participating jurisdiction in whose jurisdictional
5 area a part of the pipeline is situated--
(a) by, or in relation to, a relevant Minister; or
(b) by the Court within the meaning of that
legislation in relation to action taken by, or
in relation to, a relevant Minister--
10 is taken also to be taken under the national gas
legislation of each participating jurisdiction in
whose jurisdictional area a part of the pipeline is
situated (that other legislation)--
(c) by, or in relation to, a relevant Minister
15 within the meaning of that other legislation;
or
(d) by the Court within the meaning of that other
legislation--
as the case requires.
20 (2) Despite subsection (1), no proceeding for judicial
review or for a declaration, injunction, writ, order
or remedy may be brought before the Court to
challenge or question any action, or purported
action, of a relevant Minister taken, or purportedly
25 taken, in relation to a cross boundary distribution
pipeline unless this jurisdiction has been
determined to be the participating jurisdiction
with which the cross boundary distribution
pipeline is most closely connected.
561047B.I-6/5/2008 9 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 4--General
s. 15
(3) A reference in this section--
(a) to an action that is taken includes a reference
to--
(i) a decision or determination that is
5 made; or
(ii) an omission that is made;
(b) to a purported action that is purportedly
taken includes a reference to a purported
decision or determination that is purportedly
10 made.
(4) In this section--
cross boundary pipeline means--
(a) a cross boundary transmission pipeline;
or
15 (b) a cross boundary distribution pipeline.
15 Conferral of functions and powers on
Commonwealth bodies
(1) Clause 2 of Schedule 2 to the National Gas
(Victoria) Law will have effect in relation to the
20 operation of any provision of this Act, or any
regulation forming part of the National Gas
(Victoria) Regulations, as if the provision or
regulation formed part of the National Gas
(Victoria) Law.
25 (2) Subsection (1) does not limit the effect that a
provision or Regulation would validly have apart
from the subsection.
16 Supreme Court--limitation of jurisdiction
It is the intention of section 14(2) to alter or vary
30 section 85 of the Constitution Act 1975.
__________________
561047B.I-6/5/2008 10 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 17
PART 5--SPECIFIC VICTORIAN TRANSITIONAL
ARRANGEMENTS
Division 1--Interpretation
17 Definitions
5 In this Part--
Access Code means the Code within the meaning
of the Gas Pipelines Access (Victoria) Law;
AER approved full access arrangement means a
full access arrangement approved by the
10 AER under the Rules;
designated distribution pipeline means a
designated pipeline that is a distribution
pipeline;
Note
15 The National Gas (Victoria) Regulations prescribe
which pipelines in Victoria are designated pipelines.
distribution licence means a licence issued under
section 26 of the Gas Industry Act 2001
that authorises the holder of the licence to
20 provide distribution pipeline services;
distribution pipeline service means a service
(other than the sale of gas by retail) provided
by means of a GIA distribution pipeline;
ESC guideline No. 17 means the document
25 entitled "Gas Industry Guideline No. 17
Regulatory Accounting Information
Requirements" published on 13 July 2005 by
the ESC as that guideline is amended and in
force from time to time;
561047B.I-6/5/2008 11 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 17
Essential Services Commission or ESC means the
Essential Services Commission established
under section 7 of the Essential Services
Commission Act 2001;
5 gas distribution access arrangement revision
decision means a final decision of the
relevant Regulator under section 2.41 or 2.42
of the Access Code;
gas distribution access arrangement under
10 review means an access arrangement that
relates to the provision of pipeline services
provided by a relevant Victorian service
provider by means of an old access law
distribution pipeline--
15 (a) in relation to which a review has been
commenced under section 2 of the
Access Code before the NGL
commencement day; and
(b) in respect of which a gas distribution
20 access arrangement revision decision
has not been made before that day;
gas distribution company has the same meaning
as in the Gas Industry Act 2001;
Gas Distribution System Code means the
25 document entitled "Gas Distribution System
Code", version 8.1, published by the ESC on
28 March 2007, as that Code is amended and
in force from time to time;
gas distribution system regulatory duty has the
30 meaning given by section 18;
gas distribution system regulatory function or
power has the meaning given by section 19;
561047B.I-6/5/2008 12 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 17
Gas Pipelines Access (Victoria) Law means the
Gas Pipelines Access (Victoria) Law as in
force immediately before the NGL
commencement day;
5 GIA distribution pipeline means a distribution
pipeline within the meaning of the Gas
Industry Act 2001;
NGL commencement day means the day on
which section 39 comes into operation;
10 old access law distribution pipeline means a
distribution pipeline within the meaning of
the Gas Pipelines Access (Victoria) Law;
relevant appeals body has the same meaning as in
the Gas Pipelines Access (Victoria) Law;
15 relevant gas distribution system law or
instrument means--
(a) the Essential Services Commission
Act 2001 (to the extent to which that
Act relates to the economic regulation
20 of distribution pipeline services
provided by a gas distribution
company); or
(b) the Gas Industry Act 2001 (to the
extent to which that Act relates to the
25 economic regulation of distribution
pipeline services provided by a gas
distribution company); or
(c) a specified Gas Distribution System
Code provision; or
30 (d) until the specified day, ESC guideline
No. 17; or
(e) the Wimmera and Colac Tariff Order;
561047B.I-6/5/2008 13 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 17
relevant Regulator has the same meaning as in
the Gas Pipelines Access (Victoria) Law;
Note
Under the Gas Pipelines Access (Victoria) Law, the
5 Essential Services Commission, as the local
Regulator, was the relevant Regulator in relation to
distribution pipelines situated wholly within Victoria
or most closely connected with Victoria.
relevant Victorian service provider means--
10 (a) the entity or entities that trade either
together or separately as "SP AusNet"
including but not limited to SPI
Networks (Gas) Pty Ltd
(ABN 43 086 015 036); or
15 (b) the entities Envestra Victoria Pty Ltd
(ACN 085 882 373) and Vic Gas
Distribution Pty Ltd
(ACN 085 899 001); or
(c) the entities Multinet Gas (DB No. 1)
20 Pty Ltd (ACN 086 026 986) and
Multinet Gas (DB No. 2) Pty Ltd
(ACN 086 230 122) trading as Multinet
Gas Distribution Partnership;
revised gas distribution access arrangement
25 means an access arrangement in respect of
which a gas distribution access arrangement
revision decision referred to in section 23
or 24 has been or is made;
specified day means 1 January 2011;
30 specified Gas Distribution System Code provision
means a provision specified under an Order
under section 20;
561047B.I-6/5/2008 14 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 18
Wimmera and Colac Tariff Order means the
Wimmera and Colac Gas Supply Tariff
Order 1998 published in the Government
Gazette on 17 December 1998 as that Order
5 is amended and in force from time to time.
18 Meaning of gas distribution system regulatory duty
A gas distribution system regulatory duty is a duty
under a relevant gas distribution system law or
instrument that the ESC had in relation to a gas
10 distribution company immediately before the day
on which a revised gas distribution access
arrangement that relates to pipeline services
provided by that gas distribution company is
deemed to be an AER approved full access
15 arrangement other than a duty--
(a) to (or refuse to) grant, vary, revoke, or
approve the transfer of, a distribution licence
held by that gas distribution company; or
(b) to make or amend a code or guideline that
20 relates to the provision of distribution
pipeline services provided by that gas
distribution company.
Note
In relation to when a revised gas distribution access arrangement is
25 deemed to be an AER approved full access arrangement, see
section 25.
19 Meaning of gas distribution system regulatory
function or power
A gas distribution system regulatory function or
30 power is a function or power under a relevant gas
distribution system law or instrument that the ESC
had in relation to a gas distribution company
immediately before the day on which a revised
gas distribution access arrangement that relates to
35 pipeline services provided by that gas distribution
company is deemed to be an AER approved full
561047B.I-6/5/2008 15 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 20
access arrangement other than a function or
power--
(a) to (or refuse to) grant, vary, revoke, or
approve the transfer of, a distribution licence
5 held by that gas distribution company; or
(b) to make or amend a code or guideline that
relates to the provision of distribution
pipeline services provided by that gas
distribution company.
10 Note
In relation to when a revised gas distribution access arrangement is
deemed to be an AER approved full access arrangement, see
section 25.
20 Specification of Gas Distribution System Code
15 provisions by Minister
(1) The Minister, by Order published in the
Government Gazette, may specify (with or
without modification) a provision of the Gas
Distribution System Code that--
20 (a) confers a function or power on the ESC; or
(b) imposes a duty on the ESC--
as a specified Gas Distribution System Code
provision.
(2) The Minister may only specify a provision in an
25 Order under subsection (1) if the provision relates
to the economic regulation of distribution pipeline
services provided by a gas distribution company.
21 Role of Interpretation of Legislation Act 1984
Except where the contrary intention appears, this
30 Part does not affect or take away from the
Interpretation of Legislation Act 1984.
561047B.I-6/5/2008 16 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 22
Division 2--Current and pending Victorian gas distribution
system access arrangement revisions
22 Transitional clauses in NGL relating to distribution
pipeline services access arrangements do not apply
5 (1) Despite section 7, clause 26 of Schedule 3 to the
NGL does not apply as a law of Victoria to the
extent that the clause applies to an access
arrangement--
(a) that relates to pipeline services provided by
10 means of an old access law distribution
pipeline; and
(b) in respect of which a final decision of the
relevant Regulator under section 2.41 or 2.42
of the Access Code has been made that is the
15 subject of a review under section 39 of the
Gas Pipelines Access (Victoria) Law on the
NGL commencement day.
(2) Despite section 7, clauses 29 to 31 of Schedule 3
to the NGL do not apply as laws of Victoria to the
20 extent that those clauses apply to an access
arrangement that relates to pipeline services
provided by means of an old access law
distribution pipeline.
(3) In this section--
25 NGL means the Schedule to the National Gas
(South Australia) Act 2008 of South
Australia.
Note
See clause 2 of Schedule 3 to the National Gas Law.
561047B.I-6/5/2008 17 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 23
23 Gas distribution access arrangements under review
(1) On and after the NGL commencement day, the
relevant Regulator must continue to take action
under the Access Code in respect of a gas
5 distribution access arrangement under review
(including the making of a gas distribution access
arrangement revision decision) as if the Gas
Pipelines Access (Victoria) Law continued to
apply.
10 (2) To avoid doubt, the Gas Pipelines Access
(Victoria) Law applies to--
(a) any review under that Law in respect of a gas
distribution access arrangement revision
decision made as provided by this section;
15 and
(b) any proceeding in respect of a review
referred to in paragraph (a) (including any
appeal)--
until that review or proceeding (as the case may
20 be) is finally determined.
24 Gas distribution access arrangement revision
decisions under review
(1) This section applies if--
(a) a gas distribution access arrangement
25 revision decision has been made before the
NGL commencement day in relation to an
access arrangement that relates to pipeline
services provided by a relevant Victorian
service provider by means of an old access
30 law distribution pipeline; and
(b) a review has been commenced and not
completed under section 39 of the Gas
Pipelines Access (Victoria) Law in respect of
that decision before that day.
561047B.I-6/5/2008 18 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 25
(2) To avoid doubt, the Gas Pipelines Access
(Victoria) Law continues to apply to--
(a) the review under that Law; and
(b) any proceeding in respect of a review
5 referred to in paragraph (a) (including any
appeal)--
until that review or proceeding (as the case may
be) is finally determined.
25 Revised gas distribution access arrangements
10 become full access arrangements under NGL
A revised gas distribution access arrangement is
deemed to be an AER approved full access
arrangement, as the case requires, on the day--
(a) relevant revisions to the arrangement that
15 accord with the relevant gas distribution
access arrangement revision decision take
effect; or
(b) relevant revisions to the arrangement that
accord with a determination of the relevant
20 appeals body take effect (if the gas
distribution access arrangement revision
decision relating to those revisions was
reviewed under section 39 of the Gas
Pipelines Access (Victoria) Law); or
25 (c) relevant revisions to the arrangement that
accord with a decision of a court take effect
(if proceedings were commenced in respect
of a determination of the relevant appeals
body on the review under section 39 of the
30 Gas Pipelines Access (Victoria) Law of the
gas distribution access arrangement revision
decision relating to those revisions).
Note
See also sections 26, 27 and 36 to 38.
561047B.I-6/5/2008 19 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 26
26 Certain provisions of the Access Code to continue to
apply to revised gas distribution access arrangement
(1) Despite the repeal of the Access Code and subject
to this section and any current access arrangement
5 modification Rules, sections 3, 8 and 10.8 of the
Access Code continue to apply to a revised gas
distribution access arrangement deemed to be an
AER approved full access arrangement under
section 25 until revisions to such an access
10 arrangement first approved or made in accordance
with the National Gas (Victoria) Law and the
National Gas Rules after the NGL commencement
day take effect.
(2) To avoid doubt, after the NGL commencement
15 day, a covered pipeline service provider must,
despite anything to the contrary in an access
arrangement referred to in subsection (1), submit
an access arrangement revision proposal in
relation to that access arrangement in accordance
20 with section 132 of the National Gas (Victoria)
Law and the National Gas Rules.
(3) Sections 3, 8 and 10.8 of the Access Code, as
applied under this section, do not have effect to
the extent that they provide for or deal with the
25 procedure for the approval of revisions to access
arrangements.
(4) For the purposes of this section, on the handover
day--
(a) the AER is deemed to have the functions and
30 powers a relevant Regulator has under
sections 3, 8 and 10.8 of the Access Code as
applied under this section; and
(b) every reference to a relevant Regulator in
those sections as applied under this section is
35 deemed to be a reference to the AER.
561047B.I-6/5/2008 20 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 27
(5) In this section--
access arrangement revision proposal has the
same meaning as in the National Gas Rules;
current access arrangement modification Rules
5 means Rules made for or with respect to
item 81 of Schedule 1 to the National Gas
(Victoria) Law that are in force;
handover day means the day on which a revised
gas distribution access arrangement is
10 deemed to be an AER approved access
arrangement under section 25.
27 Certain decisions relating to certain access
arrangements are reviewable regulatory decisions
for purposes of National Gas (Victoria) Law
15 (1) Despite anything to the contrary in the National
Gas (Victoria) Law, the definition of reviewable
regulatory decision in section 244 of that Law is
deemed, during the relevant transition period, to
include decisions of the AER--
20 (a) that disallow a variation proposed by a
service provider of a Reference Tariff
contained in a revised gas distribution access
arrangement deemed to be an AER approved
access arrangement under section 25; or
25 (b) to make the AER's own variation of a
Reference Tariff in respect of a revised gas
distribution access arrangement deemed to
be an AER approved access arrangement
under section 25--
30 (i) on disallowing a variation proposed by
a service provider; or
(ii) because a service provider fails to
submit such a variation as required.
561047B.I-6/5/2008 21 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 28
(2) In this clause--
new scheme revisions commencement date
means the date revisions approved or made
under the National Gas (Victoria) Law and
5 the National Gas Rules to a revised gas
distribution access arrangement deemed to
be an AER approved full access arrangement
under section 25 take effect following the
first review of that access arrangement under
10 that Law and those Rules after the NGL
commencement day;
Reference Tariff has the same meaning as in the
Access Code;
relevant transition period means the period--
15 (a) commencing on the NGL
commencement day; and
(b) ending on the day after the day that is
15 business days after the new scheme
revisions commencement date.
20 Division 3--AER functions, powers and duties under State
instruments
28 Certain ESC functions, powers and duties conferred
and imposed on the AER
(1) On and after the day on which a revised gas
25 distribution access arrangement that relates to
pipeline services provided by a gas distribution
company is deemed to be an AER approved full
access arrangement, the AER is, in relation to that
gas distribution company and by force of this
30 subsection--
561047B.I-6/5/2008 22 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 28
(a) conferred--
(i) a relevant gas distribution system
regulatory function or power; and
(ii) the functions and powers the ESC had
5 immediately before that day under a
condition of the distribution licence
held by that gas distribution company
that relates to the economic regulation
of distribution pipeline services by that
10 company; and
(b) subject to a gas distribution system
regulatory duty.
(2) In addition, on and after the day on which a
revised gas distribution access arrangement that
15 relates to pipeline services provided by a gas
distribution company is deemed to be an AER
approved full access arrangement, the AER has, in
relation to that gas distribution company, the
functions and powers conferred, and is subject to
20 the duties imposed, on it under this Division.
(3) For the purposes of this Division, on and after the
day on which a revised gas distribution access
arrangement that relates to pipeline services
provided by a gas distribution company is deemed
25 to be an AER approved full access arrangement,
every reference to the Essential Services
Commission (by whatever name described) in--
(a) a relevant gas distribution system law or
instrument (to the extent to which that law or
30 instrument relates to that gas distribution
company); or
561047B.I-6/5/2008 23 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 29
(b) a condition of a distribution licence held by
that gas distribution company that relates to
the economic regulation of distribution
pipeline services provided by that
5 company--
is to be taken to be a reference to the AER unless
the context otherwise requires.
Note
In relation to when a revised gas distribution access arrangement is
10 deemed to be an AER approved full access arrangement, see
section 25.
29 ESC ceases to have distribution pipeline services
related regulatory functions, powers and duties
Despite anything to the contrary in any Act or
15 instrument, on the day on which a revised gas
distribution access arrangement that relates to
pipeline services provided by a gas distribution
company is deemed to be an AER approved full
access arrangement the ESC, by force of this
20 section--
(a) ceases, in relation to that gas distribution
company, to have any function or power
under--
(i) a relevant gas distribution system law
25 or instrument (to the extent to which
that law or instrument relates to that gas
distribution company); or
(ii) a condition of a distribution licence
held by that gas distribution company
30 that relates to the economic regulation
of distribution pipeline services
provided by that company; and
(b) ceases, in relation to that gas distribution
company, to be subject to any duty under a
35 relevant gas distribution system law or
instrument (to the extent to which that law or
561047B.I-6/5/2008 24 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 30
instrument relates to that gas distribution
company).
Note
In relation to when a revised gas distribution access arrangement is
5 deemed to be an AER approved full access arrangement, see
section 25.
30 Enforcement by AER of certain provisions of
Victorian distribution licences
(1) This section applies if--
10 (a) a gas distribution company--
(i) has contravened or is contravening or,
in the opinion of the AER, is likely to
contravene a condition of its
distribution licence that requires
15 compliance with--
(A) a provision of the Gas Distribution
System Code that relates to the
economic regulation of
distribution pipeline services; or
20 (B) the Wimmera and Colac Tariff
Order; or
(ii) has contravened or is likely to
contravene, before the specified day, a
condition of its distribution licence that
25 requires compliance with ESC
guideline No. 17; and
(b) the AER considers that the contravention or
likely contravention is not of a trivial nature.
(2) The AER may serve a provisional order or a final
30 order on the gas distribution company requiring
the company--
(a) to comply with the relevant distribution
licence condition; and
561047B.I-6/5/2008 25 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 31
(b) if a contravention has already occurred, to
take such actions as are specified in the order
to rectify the contravention.
(3) Section 53(2) to (9) and section 54 of the
5 Essential Services Commission Act 2001 apply
as if--
(a) a reference in those sections to a provisional
order or a final order were a reference to a
provisional order or a final order made and
10 served under this section; and
(b) a reference to the Commission were a
reference to the AER.
31 ESC cannot enforce certain gas distribution licence
conditions that the AER can enforce
15 On and after the day on which a revised gas
distribution access arrangement that relates to
pipeline services provided by a gas distribution
company is deemed to be an AER approved full
access arrangement, the ESC cannot make or
20 serve a provisional order or a final order under
section 53 of the Essential Services Commission
Act 2001 in respect of a contravention or likely
contravention by that gas distribution company of
a condition of a distribution licence held by that
25 company that requires that company to comply
with--
(a) a provision of the Gas Distribution System
Code that relates to the economic regulation
of distribution pipeline services; or
30 (b) the Wimmera and Colac Tariff Order; or
(c) ESC guideline No. 17.
Note
In relation to when a revised gas distribution access arrangement is
deemed to be an AER approved full access arrangement, see
35 section 25.
561047B.I-6/5/2008 26 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 32
32 AER may request amendment of Gas Distribution
System Code or ESC Guideline No. 17
(1) The AER may--
(a) request the ESC to amend the Gas
5 Distribution System Code; or
(b) until the specified day, request the ESC to
amend ESC guideline No. 17.
(2) On receiving a request under subsection (1), the
ESC may, after consulting with the AER, amend
10 the Gas Distribution System Code or ESC
guideline No. 17 (as the case may be).
33 Appeals against certain decisions or actions of the
AER
(1) This section applies if the AER, in exercise or
15 performance, or purported exercise or
performance, of a relevant gas distribution system
regulatory function or power conferred on it under
section 28, makes--
(a) a requirement under section 37 of the
20 Essential Services Commission Act 2001;
or
(b) a decision to disclose information or the
contents of a document given to the AER by
a person under a notice given by the AER
25 under section 38(2)(c) or 38(2)(d) of the
Essential Services Commission Act 2001.
(2) A person who is aggrieved by the requirement or
decision may appeal to the Tribunal against the
making of the requirement or decision.
30 (3) Sections 55 and 56 of the Essential Services
Commission Act 2001 apply to an appeal under
this section as if--
561047B.I-6/5/2008 27 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 33
(a) a reference in those sections to section 55(1)
were a reference to subsection (1) of this
section; and
(b) in section 55(3) for "the Registrar" there
5 were substituted "the Tribunal"; and
(c) section 56(1) to (3) and (5) were omitted;
and
(d) a reference in those sections to the
Commission were a reference to the AER;
10 and
(e) a reference in those sections to an appeal
panel were a reference to the Tribunal.
(4) Part 3 of the Essential Services Commission
Regulations 2001 applies to an appeal under this
15 section as if--
(a) regulations 10 and 11 of that Part were
omitted; and
(b) a reference in that Part to the Commission
were a reference to the AER; and
20 (c) a reference in that Part to an appeal panel
were a reference to the Tribunal; and
(d) a reference in that Part to the Registrar were
a reference to the Tribunal.
(5) In this section--
25 Tribunal means the Australian Competition
Tribunal referred to in the Trade Practices
Act 1974 of the Commonwealth and includes
a member of the Tribunal or a Division of
the Tribunal performing functions of the
30 Tribunal.
561047B.I-6/5/2008 28 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 34
34 Provision of information and assistance by ESC to
the AER
(1) Despite any other Act or law, the ESC is
authorised, on its own initiative or at the request
5 of the AER--
(a) to provide the AER with such information
(including information given in confidence)
in the possession or control of the ESC that
is reasonably required by the AER for the
10 purposes of this Division; and
(b) to provide the AER with such other
assistance as is reasonably required by the
AER to perform a function or duty, or
exercise a power, conferred or imposed
15 under this Division.
(2) Nothing done, or authorised to be done, by the
ESC in acting under subsection (1)--
(a) constitutes a breach of, or default under, an
Act or other law; or
20 (b) constitutes a breach of, or default under, a
contract, agreement, understanding or
undertaking; or
(c) constitutes a breach of a duty of confidence
(whether arising by contract, in equity or by
25 custom) or in any other way; or
(d) constitutes a civil or criminal wrong; or
(e) terminates an agreement or obligation or
fulfils any condition that allows a person to
terminate an agreement or obligation, or
30 gives rise to any other right or remedy; or
(f) releases a surety or any other obligee wholly
or in part from an obligation.
561047B.I-6/5/2008 29 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 35
(3) The ESC, by written notice, must inform the AER
of the day on which a revised gas distribution
access arrangement --
(a) will be deemed to be an AER approved full
5 access arrangement under section 25; or
(b) in the ESC's opinion is likely to be deemed
to be an AER approved full access
arrangement under section 25.
Note
10 In relation to when a revised gas distribution access
arrangement is deemed to be an AER approved full access
arrangement, see section 25.
Division 4--Miscellaneous matters
35 Consolidated access arrangements not permitted in
15 respect of 2 or more covered distribution pipelines
(1) This section applies if a covered pipeline service
provider provides or intends to provide pipeline
services by means of 2 or more covered pipelines
that are distribution pipelines.
20 (2) Despite section 7 or anything in the National Gas
Rules, the AER must not direct the covered
pipeline service provider to submit a consolidated
access arrangement for all the relevant covered
pipelines.
25 (3) Despite section 7 or anything in the National Gas
Rules, the covered pipeline service provider
cannot submit a consolidated access arrangement
for all the relevant covered pipelines.
36 GPAL obligation comply with published general
30 accounting guidelines continues
(1) Subsection (2) applies despite the repeal of the
Gas Pipelines Access (Victoria) Law.
561047B.I-6/5/2008 30 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 37
(2) Section 4.1(c), (d) and (e), section 4.2(a) of the
Access Code and any general accounting
guidelines published by the relevant Regulator as
provided by section 4.2(a) and in effect before the
5 NGL commencement day, continue to apply to a
gas distribution company that is a covered
pipeline service provider that provides pipeline
services by means of a designated distribution
pipeline--
10 (a) as if the Gas Pipelines Access (Victoria) Law
had not been repealed; and
(b) until the specified day.
(3) In addition, despite section 7, section 141 of the
NGL does not apply as a law of Victoria until
15 after the specified day.
(4) In this section--
NGL means the Schedule to the National Gas
(South Australia) Act 2008 of South
Australia.
20 37 ESC Guideline No. 17 becomes a regulatory
information order after specified day
(1) On the day after the specified day ESC Guideline
No. 17 is deemed to be a regulatory information
order that applies to a gas distribution company
25 that is a scheme pipeline service provider (the
transitioned Victorian distribution RIO).
(2) Despite section 7 and anything to the contrary in
the National Gas (Victoria) Law, the AER must
not--
30 (a) amend the transitioned Victorian distribution
RIO so that the transitioned Victorian
distribution RIO, as it relates to a Victorian
transitioned access arrangement, prejudices
the administration of that access
35 arrangement; or
561047B.I-6/5/2008 31 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 38
(b) revoke the transitioned Victorian distribution
RIO; or
(c) substitute the transitioned Victorian
distribution RIO with a regulatory
5 information order that has the effect of
prejudicing the administration of a Victorian
transitioned access arrangement; or
(d) prepare or serve a regulatory information
notice that is inconsistent with the
10 transitioned Victorian distribution RIO.
(3) The transitioned Victorian distribution RIO ceases
to have effect in relation to a gas distribution
company that is a scheme pipeline service
provider on the day revisions to a Victorian
15 transitioned access arrangement that relates to
pipelines services provided by that service
provider and that are first approved or made in
accordance with the National Gas (Victoria) Law
and the National Gas Rules after the NGL
20 commencement day take effect.
(4) In this section--
Victorian revised gas distribution access
arrangement means a revised gas
distribution access arrangement that is
25 deemed to be an AER approved full access
arrangement under section 25.
38 Matters to be taken into account when AER makes
or prepares regulatory information instruments
(1) This section applies if the AER is intending to
30 make a general regulatory information order or
prepare a regulatory information notice that will
relate to the provision of pipeline services
provided by a gas distribution company that is a
scheme pipeline service provider after the day the
35 transitioned Victorian distribution RIO ceases to
have effect.
561047B.I-6/5/2008 32 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 5--Specific Victorian Transitional Arrangements
s. 38
(2) Despite section 7 and anything to the contrary in
the National Gas (Victoria) Law, the AER, in
making the general regulatory information order
or preparing the regulatory information notice,
5 must--
(a) have regard to the transitioned Victorian
distribution RIO; and
(b) ensure, to the maximum practicable extent,
that the general regulatory information order
10 or regulatory information notice is consistent
with the transitioned Victorian distribution
RIO.
(3) In this section--
transitioned Victorian distribution RIO has the
15 same meaning as in section 37.
__________________
561047B.I-6/5/2008 33 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 6--Repeals and Amendments
s. 39
PART 6--REPEALS AND AMENDMENTS
Division 1--Repeal of Gas Pipelines Access (Victoria)
Act 1998
39 Repeal
5 See:
Act No.
The Gas Pipelines Access (Victoria) Act 1998 is
31/1998. repealed.
Reprint No. 1
as at
8 March 2004
and
amending
Act No.
55/2007.
LawToday:
www.
legislation.
vic.gov.au
Division 2--Amendment of this Act when Offshore
Petroleum Act 2006 of the Commonwealth commences
40 Amendment of section 9 of this Act--New
10 definitions substituted
In section 9(1), for the definitions of adjacent
area of this jurisdiction and adjacent area of
another participating jurisdiction substitute--
"adjacent area of this jurisdiction means the
15 offshore area of the State within the meaning
of section 7 of the Offshore Petroleum Act
2006 of the Commonwealth;
adjacent area of another participating
jurisdiction means the offshore area of a
20 State (other than this State) or the Northern
Territory within the meaning of section 7 of
the Offshore Petroleum Act 2006 of the
Commonwealth;".
561047B.I-6/5/2008 34 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 6--Repeals and Amendments
s. 41
Division 3--Other amendments
41 Gas Industry Act 2001--References to Access Code See:
Act No.
31/2001.
(1) In section 3 of the Gas Industry Act 2001, the Reprint No. 3
definition of Access Code is repealed. as at
11 October
5 (2) Section 20(6) of the Gas Industry Act 2001 is 2006
and
repealed. amending
Act Nos
(3) In section 20A(2) of the Gas Industry Act 2001, 61/2005,
for "Access Code" (where twice occurring) 35/2007 and
55/2007.
substitute "National Gas (Victoria) Law". LawToday:
www.
10 (4) In section 48(4) of the Gas Industry Act 2001, legislation.
vic.gov.au
for "Access Code" substitute "National Gas
(Victoria) Law".
(5) In section 51D(3)(c) of the Gas Industry Act
2001, for "Access Code" substitute "National Gas
15 (Victoria) Law".
42 Interpretation of Legislation Act 1984--New See:
Act No.
references to National Gas (Victoria) Law and 10096.
Regulations substituted Reprint No. 9
as at
6 March 2007
(1) In section 32(1) of the Interpretation of and
20 Legislation Act 1984, in the definition of Code, amending Act
No. 4/2008.
for paragraph (ja) substitute-- LawToday:
www.
"(ja) the National Gas (Victoria) Law;". legislation.
vic.gov.au
(2) For section 38BA of the Interpretation of
Legislation Act 1984 substitute--
25 "38BA References to National Gas Law
In an Act or subordinate instrument--
National Gas (Victoria) Law means the
provisions applying because of section
7 of the National Gas (Victoria) Act
30 2008;
561047B.I-6/5/2008 35 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Part 6--Repeals and Amendments
s. 43
National Gas (Victoria) Regulations means
the provision applying because of
section 8 of the National Gas
(Victoria) Act 2008.".
5 See: 43 Pipelines Act 2005--Reference to Gas Pipelines
Act No.
61/2005 Access (Victoria) Act 1998
and
amending In section 122(9) of the Pipelines Act 2005, for
Act Nos
29/2006 and
"Gas Pipelines Access (Victoria) Act 1998"
60/2006. substitute "National Gas (Victoria) Law".
LawToday:
www.
legislation.
vic.gov.au
10 See: 44 Federal Courts (State Jurisdiction) Act 1999--
Act No.
54/1999 Reference to Gas Pipelines Access (Victoria) Act
and 1998
amending
Act No.
28/2007.
In section 3 of the Federal Courts (State
LawToday: Jurisdiction) Act 1999, in the definition of
www.
15 legislation.
relevant State Act, paragraph (d) is repealed.
vic.gov.au
561047B.I-6/5/2008 36 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561047B.I-6/5/2008 37 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Appendix
App.
APPENDIX
National Gas (South Australia) Bill 20081
EXPLANATION OF CLAUSES
Part 1--Preliminary
1--Short title
This clause is formal. It provides for the name (also called the short
title) of the proposed Act.
2--Commencement
Clause 2(1) provides for the measure to be brought into operation
by proclamation. Clause 2(2) makes it clear that the Governor may,
if necessary, bring different provisions of the Schedule into
operation on different days. Clause 2(3) excludes the operation of
section 7(5) of the Acts Interpretation Act 1915 due to the fact that
this measure forms part of a co-operative legislative scheme
involving other Australian jurisdictions.
3--Interpretation
A key aspect to the definitions under the Act is that there will be a
point of distinction between the National Gas Law, being a law to
be applied in the jurisdiction of the scheme participants, and the
National Gas (South Australia) Law, being the National Gas Law
as it applies in this State. The clause also provides that definitions
included in the law (as applying because of this measure) also
apply for the purposes of the Act.
4--Crown to be bound
This clause provides that the legislation binds the Crown.
5--Application to coastal waters
This clause applies the legislation to the coastal waters of the State.
6--Extra-territorial operation
This clause provides for the extra-territorial operation of the
legislation.
561047B.I-6/5/2008 38 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Appendix
App.
Part 2--National Gas (South Australia) Law and
National Gas (South Australia) Regulations
7--Application of National Gas Law
This clause applies the National Gas Law set out in the Schedule as
a law of South Australia. The applied law is to be referred to as the
National Gas (South Australia) Law.
8--Application of regulations under National Gas Law
This clause provides that the regulations in force under Part 3 apply
as regulations in force for the purposes of the National Gas (South
Australia) Law. The regulations are to be referred to as the
National Gas (South Australia) Regulations.
9--Interpretation of some expressions in National Gas
(South Australia) Law and National Gas (South
Australia) Regulations
This clause contains a number of definitions used for the purposes
of the National Gas (South Australia) Law and the National Gas
(South Australia) Regulations. These definitions relate to
expressions whose meaning necessarily varies according to the
jurisdiction in which the National Gas Law is being applied.
Part 3--Making of regulations and rules under
National Gas Law
10--Definitions
This clause provides that for the purposes of this Part a reference to
the National Gas Law is a reference to the law as in force for the
time being.
11--General regulation-making power for National Gas
Law
This clause enables the Governor to make regulations to give effect
to the National Gas Law on the unanimous recommendation of the
Ministers of the participating jurisdictions. In view of the interstate
application of laws scheme that is based on this measure and
regulations made under the Act, Parliamentary disallowance of the
regulations is excluded.
561047B.I-6/5/2008 39 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Appendix
App.
12--Specific regulation-making power
This clause enables the Governor to make regulations of a
transitional nature relating to the transition from the Gas Code
under the current Act (the Gas Pipelines Access (South Australia)
Act 1997) to this new scheme.
13--Making of rules
In view of the interstate application of Rules made under this
scheme, it is appropriate that the Rules be excluded from the
operation of the South Australian Subordinate Legislation
Act 1978.
Part 4--Cross vesting of powers
14--Conferral of powers on Commonwealth Minister and
Commonwealth bodies to act in this State
This clause provides for the Minister of the Commonwealth
administering the Australian Energy Market Act 2004 of the
Commonwealth (the Commonwealth Minister), the Australian
Energy Regulator, the National Competition Council and the
Australian Competition Tribunal to do acts in or in relation to this
State in the performance or exercise of a function or power
conferred by the national gas legislation of another participating
State or Territory.
15--Conferral of powers on Ministers of other participating
States and Territories to act in this State
This clause provides for the Minister of another participating State
or Territory to do acts in or in relation to this State in the
performance or exercise of a function or power conferred by the
national gas legislation of another participating State or Territory.
16--Conferral of functions or powers on State Minister
This clause provides that if the national gas legislation of another
participating State or Territory confers a function or power on the
Minister, the Minister may perform that function or exercise that
power.
561047B.I-6/5/2008 40 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Appendix
App.
Part 5--General
17--Exemption from taxes
This clause provides for an exemption from State duties or taxes in
relation to certain transfers of assets or liabilities that are made for
the purposes of ensuring that a person does not carry on a business
of producing, purchasing or selling natural gas or processable gas
in breach of any ring fencing requirements of any national gas
legislation or for the purpose of the separation of certain businesses
or business activities as required by an Australian Energy Regulator
ring fencing determination.
18--Actions in relation to cross boundary pipelines
This clause provides that if any action is taken under the national
gas legislation of a participating jurisdiction with respect to a cross
boundary pipeline by a relevant Minister or a Supreme Court of the
jurisdiction each other relevant Minister or Supreme Court in any
other participating jurisdiction in which the pipeline is situated is
also taken to have taken that action. No appeal is permitted against
any such action by a relevant Minister except in the jurisdiction
with which the pipeline is most closely connected.
19--Conferral of functions and powers on Commonwealth
bodies
This clause provides that a provision of the proposed Act or
regulations is to be construed so as not to exceed the legislative
power of the Parliament, in particular with respect to a provision
that appears to impose a duty on the Commonwealth Minister, the
Australian Energy Regulator, the National Competition Council or
the Australian Competition Tribunal.
Part 6--Repeal of Gas Pipelines Access (South
Australia) Act 1997
20--Repeal of Gas Pipelines Access (South Australia)
Act 1997
The Gas Pipelines Access (South Australia) Act 1997 is to be
repealed.
561047B.I-6/5/2008 41 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Appendix
App.
Part 7--Amendment of this Act when Offshore
Petroleum Act 2006 commences
21--Amendment of this Act when Offshore Petroleum Act
2006 commences
This clause provides for the substitution of the definitions of
adjacent area of this jurisdiction and adjacent area of another
participating jurisdiction in proposed section 9(1) on the
commencement of section 7 of the Offshore Petroleum Act 2006 of
the Commonwealth.
Part 8--Amendment of Australian Energy Market
Commission Establishment Act 2004
22--Amendment of Australian Energy Market Commission
Establishment Act 2004
This clause makes consequential amendments to the Australian
Energy Market Commission Establishment Act 2004.
Schedule 1--National Gas Law
The National Gas Law constitutes the Schedule.
Chapter 1--Preliminary
Part 1--Citation and interpretation
1--Citation
Provides that this Law may be referred to as the National
Gas Law (the NGL).
2--Definitions
Sets out definitions used in the NGL.
3--Meaning of civil penalty provision
Defines "civil penalty provision."
4--Meaning of conduct provision
Defines "conduct provision."
561047B.I-6/5/2008 42 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Appendix
App.
5--Meaning of prospective user
Defines "prospective user."
6--Meaning of regulatory obligation or requirement
Defines "regulatory obligation or requirement."
7--Meaning of regulatory payment
Defines "regulatory payment."
8--Meaning of service provider
Defines "service provider."
9--Passive owners of scheme pipelines deemed to
provide or intend to provide pipeline services
Provides that passive owners of scheme pipelines are
deemed to provide pipeline services.
10--Things done by 1 service provider to be treated
as being done by all of service provider group
Provides that things done by 1 service provider of a
pipeline are to be treated as being done by all service
providers of the pipeline.
11--Local agents of foreign service providers
Places liability for the actions of foreign service providers
on their local agents.
12--Commissioning of a pipeline
Defines when a pipeline is deemed to be commissioned
for the purposes of the NGL.
13--Pipeline classification criterion
Sets out the pipeline classification criterion.
14--Jurisdictional determination criteria--cross
boundary distribution pipelines
Sets out the pipeline jurisdictional determination criteria.
15--Pipeline coverage criteria
Sets out the pipeline coverage criteria.
561047B.I-6/5/2008 43 BILL LA INTRODUCTION 6/5/2008
National Gas (Victoria) Bill 2008
Appendix
App.
16--Form of regulation factors
This provision sets out the form of regulation factors
under the NGL. These mirror the factors used in the NEL.
17--Effect of separate and consolidated access
arrangements in certain cases
Sets out how pipelines with multiple access arrangements
and multiple pipelines covered by a single access
arrangement are to be treated.
18--Certain extensions to, or expansion of the
capacity of, pipelines to be taken to be part of a
covered pipeline
Provides that extensions and expansions to covered
pipelines are to be treated as part of the covered pipeline
if the applicable access arrangement provides that they
will be.
19--Expansions of and extensions to covered
pipeline by which light regulation services are
provided
Provides that extensions and expansions of pipelines that
provide light regulation services are to be considered
covered pipelines, unless the pipeline is subject to a
limited access arrangement or the AER has determined
otherwise.
20--Interpretation generally
Provides that Schedule 2 to the NGL, which contains
interpretation provisions, applies to the NGL, to
Regulations made under the National Gas (South
Australia) Act 2008 and to the National Gas Rules made
under the NGL.
Part 2--Participating jurisdictions
21--Participating jurisdictions
Provides for the participating jurisdictions, which will be
South Australia together with the Commonwealth, any
other State and any Territory that has in place a law that
applies the NGL as a law of that jurisdiction.
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22--Ministers of participating jurisdictions
Provides for the relevant Ministers of the participating
jurisdictions.
Part 3--National gas objective and principles
Division 1--National gas objective
23--National gas objective
The NGL objective is designed to promote efficient
investment in, and efficient operation and use of, natural
gas services for the long term interests of consumers of
natural gas with respect to price, quality, safety,
reliability and security of supply of natural gas.
Division 2--Revenue and pricing principles
24--Revenue and pricing principles
Sets out the revenue and pricing principles.
Division 3--MCE policy principles
25--MCE statements of policy principles
Provides that the Ministerial Council on Energy (MCE)
may issue statements of policy principles in relation to
any matters that are relevant to the functions and powers
of the Australian energy Market Commission (AEMC).
Statements must be published in the South Australian
Government Gazette by the AEMC.
Part 4--Operation and effect of National Gas
Rules
26--National Gas Rules to have force of law
Provides for the Rules to have the force of law in each of
the participating jurisdictions.
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Chapter 2--Functions and powers of gas
market regulatory entities
Part 1--Functions and powers of the
Australian Energy Regulator
Note--
This Part provides for the functions and powers of the Australian
Energy Regulator established by section 44AE of the Trade
Practices Act 1974 of the Commonwealth (the TPA).
Division 1--General
27--Functions and powers of the AER
Sets out the AER's functions and powers.
28--Manner in which AER must perform or
exercise AER economic regulatory functions or
powers
Makes provision in relation to the manner in which the
AER must perform or exercise the AER's economic
regulatory functions or powers.
29--Delegations
Provides that a delegation by the AER under section
44AAH of the TPA is effective for the purposes of the
NGL, Regulations and Rules.
30--Confidentiality
Provides that the confidentiality provisions of section
44AAF of the TPA are effective for the purposes of the
NGL, Regulations and Rules.
Division 2--Search warrants
31--Definitions
Sets out definitions for the purposes of this Division.
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32--Authorised person
Provides that the AER may authorise persons to be
authorised persons for the purposes of this Division.
33--Identity cards
Requires the AER to issue identity cards to authorised
people.
34--Return of identity cards
Requires identity cards to be returned to the AER.
35--Search warrant
Provides for the issue of search warrants by a magistrate.
36--Announcement of entry and details of warrant
to be given to occupier or other person at
premises
Provides for announcement before entry to a place in
execution of a search warrant and requires certain details
of a search warrant to be given to the occupier of
premises.
37--Immediate entry permitted in certain cases
Provides a limited exemption from complying with
section 36.
38--Copies of seized documents
Requires a certified copy of a seized document to be
provided to the person from whom it was seized in
execution of a search warrant.
39--Retention and return of seized documents or
things
Provides for return of documents or other things seized in
execution of a search warrant.
40--Retention of and return of documents or things
Provides for extension of the period within which a
document or other thing must be returned.
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41--Obstruction of persons authorised to enter
Creates an offence of obstructing or hindering a person in
the exercise of power under a warrant, for which the
penalty is a fine of up to $2 000 for a natural person or up
to $10 000 for a body corporate.
Division 3--General information gathering powers
42--Power to obtain information and documents in
relation to performance and exercise of
functions and powers
Provides that the AER may serve notices requiring
information to be furnished or documents to be produced
and creates an offence of failing to comply with such a
notice, for which the penalty is a fine of up to $2 000 for
a natural person or up to $10 000 for a body corporate.
Division 4--Regulatory information notices and
general regulatory information orders
Subdivision 1--Interpretation
43--Definitions
Defines terms used in this division.
44--Meaning of contributing service
Defines "contributing service."
45--Meaning of general regulatory information
order
Defines "general regulatory information order."
46--Meaning of regulatory information notice
Defines "regulatory information notice."
47--Division does not limit operation of information
gathering powers under Division 3
Provides that this division does not limit Division 3.
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Subdivision 2--Serving and making of regulatory
information instruments
48--Service and making of regulatory information
instrument
Allows the AER to serve regulatory information
instruments if it considers it reasonably necessary for the
performance of its functions or powers. The AER may
not issue an instrument for the purpose of investigating
breaches, preparing a performance report or as part of a
merits review.
49--Additional matters to be considered for related
provider regulatory information instruments
Imposes additional considerations on the AER before
issuing an information instrument to a related provider.
50--AER must consult before publishing a general
regulatory information order
Requires the AER to consult before issuing a general
regulatory information order.
51--Publication requirements for general regulatory
information orders
Requires publication of a general regulatory information
order.
52--Opportunity to be heard before regulatory
information notice is served
Gives covered pipeline service providers and related
providers an opportunity to be heard before the AER
serves a regulatory information notice on them.
Subdivision 3--Form and content of regulatory
information instruments
53--Form and content of regulatory information
instrument
Sets out the information that is required to be in a
regulatory information instrument and allows the AER to
specify how the information is to be provided as well as
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what information must be prepared, maintained or kept to
comply with the instrument.
54--Further provision about the information that
may be described in a regulatory information
instrument
Provides a non exclusive list of the possible content of
a regulatory information instrument.
55--Further provision about manner in which
information must be provided to AER or kept
Provides a non exclusive list of the information that the
AER may require to be kept or provided under a
regulatory information instrument.
Subdivision 4--Compliance with regulatory
information instruments
56--Compliance with regulatory information notice
that is served
Provides that a person served with a regulatory
information notice must comply with the notice.
57--Compliance with general regulatory
information order
Provides that a member of the class of persons to whom a
regulatory information order applies must comply with it
once it is published.
58--Exemptions from compliance with general
regulatory information order
Allows the AER to exempt individuals or classes of
people from complying with a general regulatory
information order.
59--Assumptions where there is non-compliance
with regulatory information instrument
Allows the AER to make economic regulatory decisions
on the basis of assumptions if a covered service provider
or related provider fails to comply with a regulatory
information instrument.
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Subdivision 5--General
60--Providing to AER false and misleading
information
Imposes penalties of $2000 for a natural person and
$10 000 for a body corporate for knowingly providing
false or misleading information to the AER.
61--Person cannot rely on duty of confidence to
avoid compliance with regulatory information
instrument
Provides that a person may not rely on a duty of
confidence to avoid compliance with a regulatory
information instrument. This section also provides
protection form civil liability for a person who complies
provides information in accordance with a regulatory
information instrument.
62--Legal professional privilege not affected
Provides that regulatory information instruments do not
require people to provide information that is subject to
legal professional privilege.
63--Protection against self-incrimination
Provides that a natural person does not have to provide
information in compliance with a regulatory information
instrument of if it may make them liable to a criminal
penalty in a participating jurisdiction.
Division 5--Service provider performance reports
64--Preparation of service provider performance
reports
Allows the AER to prepare performance reports of
covered pipelines.
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Division 6--Miscellaneous matters
65--Consideration by the AER of submissions or
comments made to it under this Law or the
Rules
Requires the AER to consider submissions, made in
response to an invitation to provide submissions, when
making economic regulatory decisions.
66--Use of information provided under a notice
under Division 3 or a regulatory information
instrument
Allows the AER to use information collected under
Division 3 to exercise its functions or powers under this
law.
67--AER to inform certain persons of decisions not
to investigate breaches, institute proceedings or
serve infringement notices
Requires the AER to inform a person who provided
information about a breach or potential breach of the law
or rules, that they do not intend to investigate the breach
or commence proceedings.
68--AER enforcement guidelines
Allows the AER to issue guidelines about how it will
conduct enforcement actions under this law.
Part 2--Functions and powers of the
Australian Energy Market Commission
Division 1--General
69--Functions and powers of the AEMC
Sets out the AEMC's functions and powers.
70--Delegations
Provides that a delegation by the AEMC under section 20
of the Australian Energy Market Commission
Establishment Act 2004 is effective for the purposes of
the NGL, Regulations and Rules.
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71--Confidentiality
Provides that the confidentiality provisions of section 24
of the Australian Energy Market Commission
Establishment Act 2004 are effective for the purposes of
the NGL, Regulations and Rules.
72--AEMC must have regard to national gas market
objective
Provides that the AEMC must have regard to the national
gas market objective.
73--AEMC must have regard to MCE statements of
policy principles in relation to Rule making
and reviews
Provides that the AEMC must have regard to any relevant
MCE statements of policy principles in making a Rule or
conducting certain reviews.
Division 2--Rule making functions and powers of
the AEMC
74--Subject matter for National Gas Rules
Provides for the subject matter of the Rules. Schedule 1
to the NGL also specifies matters about which the AEMC
may make Rules.
75--Rules in relation to economic regulation of
transmission systems
Provides for the making of Rules in relation to economic
regulation of transmission systems.
76--National Gas Rules to always provide for
certain matters relating to transmission
systems
Provides that the Rules are at all times to provide for
certain matters relating to transmission systems.
77--Documents etc. applied, adopted and
incorporated by Rules to be publicly available
Requires documents applied, adopted or incorporated by
a Rule to be publicly available.
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Division 3--Committees, panels and working groups
of the AEMC
78--Establishment of committees, panels and
working groups
Provides for establishment of committees, panels and
working groups by the AEMC.
Division 4--MCE directed reviews
79--MCE directions
Provides that the MCE may direct the AEMC to conduct
reviews. The direction must be published in the South
Australian Government Gazette.
80--Terms of reference
Provides for the terms of reference of MCE directed
reviews.
81--Notice of MCE directed review
Requires the AEMC to publish notice of an MCE
directed review.
82--Conduct of MCE directed review
Provides for the conduct of MCE directed reviews.
Division 5--Other reviews
83--Rule reviews by the AEMC
Provides for reviews by the AEMC other than MCE
directed reviews.
Division 6--Miscellaneous
84--AEMC must publish and make available up to
date versions of the National Gas Rules
Requires the AEMC to maintain an up to date copy of the
Rules on its website and to make copies of the Rules
available for inspection at its offices.
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85--Fees
Provides for the AEMC to charge fees as specified in the
Regulations.
86--Immunity from personal liability of AEMC
officials
Protects AEMC officials from any personal liability as a
result of performing their functions under this Law and
the Rules.
Part 3--Functions and powers of Ministers
of participating jurisdictions
87--Functions and powers of Minister of this
participating jurisdiction under this Law
Allows the Minister administering the NGL in any
particular jurisdiction to perform their functions under
this law.
88--Functions and powers of Commonwealth
Minister under this Law
Allows the Commonwealth Minister to perform their
functions under this law.
Part 4--Functions and powers of the NCC
89--Functions and powers of NCC under this Law
Empowers the NCC to perform its functions under this
law.
90--Confidentiality
Requires the NCC to protect confidential information
while allowing it to share information with other
regulatory bodies.
Part 5--Functions and powers of Tribunal
91--Functions and powers of Tribunal under this
Law
Empowers the Australian Competition Tribunal to
perform its functions under the NGL.
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Chapter 3--Coverage and classification of
pipelines
Part 1--Coverage of pipelines
Note--
This Chapter provides for the coverage and classification of
pipelines for the haulage of natural gas.
Division 1--Coverage determinations
92--Application for recommendation that a pipeline
be a covered pipeline
Provides that a person may apply for to the NCC for a
determination that a pipeline be a covered pipeline.
93--Application to be dealt with in accordance with
the Rules
Provides that an application to the NCC must be dealt
with in accordance with the National Gas Rules.
94--NCC may defer consideration of application in
certain cases
Provides that the NCC may defer consideration of an
application under section 92, if an application has been
made to the AER under the National Gas Rules in
relation to approval of a competitive tender process or a
tender approval decision has been made.
95--NCC coverage recommendation
Provides that the NCC must make a coverage
recommendation to the relevant Minister in accordance
with this Law and the National Gas Rules.
96--NCC must not make coverage recommendation
if tender approval decision becomes
irrevocable
Provides that the NCC must not recommend coverage if a
tender approval decision becomes irrevocable.
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97--Principles governing the making of a coverage
recommendation
Provides that the NCC must give effect to the pipeline
coverage criteria and have regard to the national gas
objective when making a coverage recommendation.
98--Initial classification decision to be made as part
of recommendation
Provides that the NCC must make an initial classification
decision in relation to a pipeline the subject of a pipeline
application as a transmission or distribution pipeline
utilising the pipeline classification criterion. The NCC
must also determine whether the pipeline is a cross
boundary transmission or distribution pipeline and, if so,
the participating jurisdiction with which the pipeline is
most closely connected.
99--Relevant Minister's determination on
application
Provides that the relevant Minister must, on receiving a
coverage recommendation from the NCC, decide whether
to make a coverage determination within a certain period
of time and that a coverage determination or decision not
to make a coverage determination must be made in
accordance with this Law and the National Gas Rules.
100--Principles governing the making of a coverage
determination or decision not to do so
Provides that the relevant Minister must give effect to the
pipeline coverage criteria, have regard to the national gas
objective and the coverage recommendation and must
take into account certain submissions received when
making a coverage determination or decision not to do so.
101--Operation and effect of coverage
determination
Provides for the time when the coverage determination
takes effect and that it continues to be a covered pipeline
while the coverage determination is in effect.
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Division 2--Coverage revocation determinations
102--Applications for a determination that a
pipeline no longer be a covered pipeline
Provides that any person may apply to the NCC for a
coverage revocation determination in accordance with the
National Gas Rules.
103--Application to be dealt with in accordance with
the Rules
Provides that the NCC must deal with an application for a
coverage revocation determination in accordance with the
National Gas Rules.
104--NCC coverage revocation recommendation
Provides that the NCC must make a coverage
recommendation in accordance with this Law and the
National Gas Rules.
105--Principles governing the making of a coverage
revocation recommendation
Provides that the NCC must give effect to the pipeline
coverage criteria and have regard to the national gas
objective when making a coverage revocation
recommendation.
106--Relevant Minister's determination on
application
Provides that the relevant Minister must, on receiving a
coverage revocation recommendation from the NCC,
decide whether to make a coverage revocation
determination within a certain period of time and that a
coverage revocation determination or decision not to
make a coverage revocation determination, must be made
in accordance with this Law and the National Gas Rules.
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107--Principles governing the making of a coverage
revocation determination or decision not to do
so
Provides that the relevant Minister must give effect to the
pipeline coverage criteria, have regard to the national gas
objective and the coverage recommendation and must
take into account certain submissions received when
making a coverage revocation determination or decision
not to do so.
108--Operation and effect of coverage revocation
determination
Provides for the time when the coverage revocation
determination takes effect and that it continues to be a
covered pipeline while the coverage revocation
determination is in effect.
Part 2--Light regulation of covered pipeline
services
Division 1--Making of light regulation
determinations
Subdivision 1--Decisions when pipeline is not a
covered pipeline
109--Application of Subdivision
Provides that this Subdivision applies if an application
has been made for a coverage determination and the
pipeline the subject of the application is not a pipeline
prescribed by the National Gas Regulations to be a
designated pipeline.
110--NCC's decision on light regulation of pipeline
services
Provides that the NCC must decide whether to make a
light regulation determination at the same time and within
the same time as it makes a coverage recommendation
and in accordance with this Law and the National Gas
Rules.
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Subdivision 2--Decisions when pipeline is a covered
pipeline
111--Application of Subdivision
Provides that this subdivision applies if a service provider
provides pipeline services by means of a covered pipeline
that is not a designated pipeline and to which an
applicable access arrangement approved or made under a
full access arrangement decision applies.
112--Application
Provides that a service provider may apply to the NCC
for a light regulation determination in accordance with
the National Gas Rules and in respect of all of the
pipeline services provided by means of the pipeline.
113--Application to be dealt with in accordance with
the Rules
Provides that the NCC must deal with an light regulation
determination application in accordance with the National
Gas Rules.
114--NCC's decision on light regulation of pipeline
services
Provides that the NCC must decide whether to make a
light regulation determination within a certain period of
time and that a light regulation determination or a
decision not to make a light regulation determination
must be made in accordance with this Law and the
National Gas Rules.
Subdivision 3--Operation and effect of light
regulation determinations
115--When light regulation determinations take
effect
Provides when a light regulation determination takes
effect and the circumstances in which it is revoked.
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116--Submission of limited access arrangement for
light regulation services
Provides that a service provider may, in respect of light
regulation services, submit a limited access arrangement
drafted in accordance with the National Gas Rules to the
AER for approval under the National Gas Rules.
Division 2--Revocation of light regulation
determinations
Subdivision 1--On advice from service providers
117--Advice by service provider that light
regulation services should cease to be light
regulation services
Provides that a service provider may advise the NCC in
writing that it wishes the pipeline services to cease to be
light regulation services and provides for a process that
the NCC must follow upon receiving that advice. Also
provides that a light regulation determination is revoked
on the same day that an access arrangement that applies
to the relevant pipeline is approved or made.
Subdivision 2--On application by persons other than
service providers
118--Application (other than by service provider)
for revocation of light regulation
determinations
Provides that a person other than the service provider
who provides light regulation services may apply in
accordance with the National Gas Rules to the NCC for
the revocation of a light regulation determination.
119--Decisions on applications made around time of
applications for coverage revocation
determinations
Provides that the NCC must make a decision in relation
to an application to revoke a light regulation
determination and a decision in relation to an application
for a coverage revocation determination received around
the same time as the first application, at the same time
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and within the same time period and in accordance with
this Law and the National Gas Rules.
120--NCC decision on application where no
application for a coverage revocation
recommendation
Provides that the NCC must make a decision in relation
to an application to revoke a light regulation
determination, where no application has been made to it
in relation to a coverage revocation recommendation
within a certain period of time and in accordance with
this Law and the National Gas Rules.
121--Operation and effect of decision of NCC under
this Division
Provides that a service provider must submit a full access
arrangement on the making of a decision by the NCC to
revoke a light regulation determination, and that the light
regulation revocation determination does not take effect
until the relevant access arrangement is approved or made
under a full access arrangement decision.
Division 3--Principles governing light regulation
determinations
122--Principles governing the making or revoking of
light regulation determinations
Provides that in deciding whether to make a light
regulation determination or to revoke a light regulation
determination, the NCC must consider:
· the likely effectiveness of the forms of
regulation provided for under this Law and the
National Gas Rules in promoting access to
pipeline services; and
· the effect of those forms of regulation on the
likely costs that may be incurred by an efficient
service provider, efficient users and prospective
users and end users.
In considering these matters, the NCC must have regard
to the national gas objective, the form of regulation
factors and any other matters it considers relevant.
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Division 4--Revocation if coverage determination
not made
123--Light regulation determination revoked if
coverage determination not made
Provides that a light regulation determination is revoked
at the same time as the relevant Minister makes a
decision not to make a coverage determination in relation
to the relevant pipeline.
Division 5--Effect of pipeline ceasing to be covered
pipeline
124--Light regulation services cease to be such
services on cessation of coverage of pipeline
Provides that a light regulation determination is revoked
on the same day as a coverage revocation determination
takes effect.
Division 6--AER reviews into designated pipelines
125--AER reviews
Provides that the MCE or the service provider may
request the AER to conduct a review into and report to
the MCE as to whether a pipeline should continue to be a
designated pipeline and, in conducting a review, the AER
must have regard to the national gas objective and
whether there has been a material change in competition
in a market served by the designated pipeline and must
undertake public consultation on the matter. Also
provides that the AER must, after completion of the
review, prepare a report, give it to the AER and the
service provider and publish the report on its website.
Part 3--Coverage of pipelines the subject of
tender process
126--Tender approval pipelines deemed to be
covered pipelines
Provides that a pipeline is deemed to be a covered
pipeline on and from the date that the tender approval
decision becomes irrevocable and ceases to be a covered
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pipeline on the expiry of an applicable access
arrangement (if one applies to the pipeline) or when a
coverage revocation determination takes effect.
Part 4--Coverage following approval of
voluntary access arrangement
127--Certain pipelines become covered pipelines on
approval of voluntary access arrangement
Provides that a pipeline the subject of a full access
arrangement voluntarily submitted by a service provider
to the AER for approval is deemed to be a covered
pipeline on the day that access arrangement takes effect
as an applicable access arrangement and ceases to be a
covered pipeline if the applicable access arrangement
expires or when a coverage revocation determination
takes effect.
Part 5--Reclassification of pipelines
128--Service provider may apply for reclassification
of pipeline
Provides that a service provider may apply to the NCC
for reclassification of a pipeline.
129--Reclassification decision
Provides that the NCC must make a reclassification
decision within a certain time period and in accordance
with this Law and the National Gas Rules. In making a
reclassification decision, the NCC must have regard to
the national gas objective and the pipeline classification
criterion and must as part of the reclassification decision,
determine whether the pipeline is a cross boundary
transmission or distribution pipeline.
130--Effect of reclassification decision
Provides that the pipeline is reclassified in accordance
with the decision of the NCC and that the relevant
Minister is the relevant Minister as provided under this
Law.
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Chapter 4--General requirements for
provision of covered pipeline services
Part 1--General duties for provision of
pipeline services by covered pipelines
131--Service provider must be legal entity of a
specified kind to provide pipeline services by
covered pipeline
Provides that a covered pipeline service provider must be
constituted as a legal entity of a kind specified in this
section in order to provide pipeline services by means of
a covered pipeline.
132--Submission of full access arrangement or
revisions to applicable full access arrangements
Provides that a covered pipeline service provider must
submit in accordance with the National Gas Rules a full
access arrangement or revisions to that access
arrangement to the AER for approval unless the pipeline
services are or are intended to be light regulation
services.
133--Preventing or hindering access
Provides that various person or entities must not engage
in conduct for the purpose of preventing or hindering the
access of another person to a pipeline service. The section
details further the meaning of the term "purpose" and
"conduct" within the context of the prohibition.
134--Supply and haulage of natural gas
Provides that if a producer offers to supply natural gas on
certain terms and conditions at a place other than the exit
flange ("the first terms") , the producer must also, on
request, state terms and conditions (including price if that
was included in the first terms) for supply of natural gas
at the exit flange ("the second terms") with reasons if
there is a price differential between the first and second
terms. Also obliges the producer to supply natural at the
exist flange on the terms and conditions stated if an offer
has been made by the producer to offer to supply natural
gas at a place other than the exit flange.
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135--Covered pipeline service provider must comply
with queuing requirements
Provides that a covered pipeline service provider must
comply with the queuing requirements of an applicable
access arrangement.
136--Covered pipeline service provider providing
light regulation services must not price
discriminate
Provides that a covered pipeline service provider must
not discriminate in relation to price when providing light
regulation services unless that price discrimination is
conducive to efficient service provision.
Part 2--Structural and operational
separation requirements (ring fencing)
Division 1--Interpretation
137--Definitions
Provides for definitions specific to this Part.
138--Meaning of marketing staff
Provides for a definition of "marketing staff".
Division 2--Minimum ring fencing requirements
139--Carrying on of related businesses prohibited
Provides that on and after the compliance date, as
defined, a covered pipeline service provider must not
carry on a related business.
140--Marketing staff and the taking part in related
businesses
Provides that on and after the compliance date, as
defined, that marketing staff must not take certain roles in
related businesses.
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141--Accounts that must be prepared, maintained
and kept
Provides that on and after the compliance date, as
defined, a covered pipeline service provider must prepare,
maintain and keep separate accounts for pipeline services
provided by each covered pipeline and a consolidated set
of accounts for the whole of the business of the covered
pipeline service provider.
Division 3--Additional ring fencing requirements
142--Division does not limit operation of Division 2
Provides that this Division does not limit Division 2.
143--AER ring fencing determinations
Provides that the AER, in accordance with this Division
and the National Gas Rules, may make a determination
requiring a covered pipeline service provider to comply
with an additional ring fencing requirement. The
provision also specifies that the AER, when making a
determination in relation to an additional ring fencing
requirement, must have regard to various principles.
144--AER to have regard to likely compliance costs
of additional ring fencing requirements
Provides that the AER, when making an additional ring
fencing requirement, must have regard to the likely costs
the may be incurred by an efficient covered pipeline
service provider or and efficient associate of covered
pipeline service provider.
145--Types of ring fencing requirements that may
be specified in an AER ring fencing
determination
Provides for, without limitation, particular types of
additional ring fencing requirements that the AER may
require of a covered pipeline service provider in a
determination.
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Division 4--AER ring fencing exemptions
146--Exemptions from minimum ring fencing
requirements
Provides that a covered pipeline service provider may
apply to the AER, in accordance with the National Gas
Rules, for a exemption from the requirements of sections
139, 140 or 141 and empowers the AER to grant that
exemption in accordance with the National Gas Rules.
Division 5--Associate contracts
147--Service provider must not enter into or give
effect to associate contracts that have
anti-competitive effect
Provides that a covered pipeline service provider must
not enter into or vary an associate contract or give effect
to a provision of an associate contract that has the
purpose of would have or be likely to have the effect of
substantially lessening competition in a market for natural
gas services, unless that associated contract is approved
or the provision is contained in an approved associate
contract.
148--Service provider must not enter into or give
effect to associate contracts inconsistent with
competitive parity rule
Provides that a service provider must not enter into or
vary an associate contract or give effect to a provision of
an associate contract that is inconsistent with the
competitive parity rule, unless that associated contract is
approved or the provision is contained in an approved
associate contract.
Chapter 5--Greenfields pipeline incentives
Part 1--Interpretation
149--Definitions
Defines terms used in this Chapter.
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150--International pipeline to be a transmission
pipeline for purposes of Chapter
An international pipeline is, for the purposes of this
Chapter, a transmission pipeline.
Part 2--15-year no-coverage determinations
151--Application for 15-year no-coverage
determination for proposed pipeline
Allows a service provider to apply to the National
Competition Council for a binding no-coverage
determination exempting the pipeline from coverage.
152--Application to be dealt with in accordance with
the Rules
Provides that an application must be dealt with in
accordance with the rules.
153--No-coverage recommendation
Provides that the NCC may make no coverage
recommendations.
154--Principles governing the making of a
no-coverage recommendation
Provides that the NCC is required to give effect to the
pipeline coverage criteria. In deciding whether or not
those criteria are satisfied, the NCC is required to have
regard to relevant submissions and comments made
within the time allowed for submissions and comments.
If the NCC is satisfied that all the pipeline coverage
criteria are satisfied in relation to the pipeline, the NCC
must recommend against making a binding no-coverage
determination. If the NCC is not satisfied that all the
criteria are satisfied, the recommendation must be in
favour of making a determination.
155--Initial classification decision to be made as
part of recommendation
Requires the NCC to classify the pipeline as part of its
recommendation.
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156--Relevant Minister's determination on
application
Requires the relevant Minister to decide whether or not
to make a binding no-coverage determination within
30 days of receiving the NCC's recommendation.
In making his or her decision, the relevant Minister must
give effect to the pipeline coverage criteria.
157--Principles governing the making of a 15-year
no-coverage determination or decision not to
do so
In deciding whether or not the pipeline coverage criteria
are satisfied in relation to the pipeline, the Minister must
have regard to the national gas objective and the NCC's
recommendation. He or she may take into account any
relevant submissions and comments made to the NCC.
If the Minister is satisfied that all the pipeline coverage
criteria are satisfied in relation to the pipeline, the
Minister must not make a binding no-coverage
determination. If the Minister is not satisfied that all the
pipeline coverage criteria are satisfied in relation to the
pipeline, the Minister must make a binding no-coverage
determination. A binding no-coverage determination, or a
decision not to make a binding no-coverage
determination, must be in writing and must contain a
short description of the pipeline the subject of the
determination, accompanied by a reference to a website at
which the relevant pipeline description can be inspected.
158--Effect of 15-year no-coverage determination
Provides that a binding no-coverage determination takes
effect when it is made and remains in force for a period
of 15 years from the commissioning of the pipeline.
An application for coverage of a pipeline to which a
binding no-coverage determination applies can only be
made before the end of the period for which the
determination remains in force if the coverage sought in
the application is to commence from, or after, the end of
that period.
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159--Consequences of Minister deciding against
making 15-year no-coverage determination for
international pipeline
If the Commonwealth Minister decides against making a
binding no-coverage determination for an international
pipeline, and the applicant asks the Commonwealth
Minister to treat the application as an application for a
price regulation exemption, the Minister may treat the
application as an application for a price regulation
exemption. The Commonwealth Minister may then refer
the application back to the NCC for a recommendation or
proceed to determine the application without a further
recommendation.
Part 3--Price regulation exemptions
Division 1--Application for price regulation
exemption
160--Application for price regulation exemption
Provides that if a greenfields pipeline project for
construction of an international pipeline is proposed, or
has commenced, the service provider may apply for a
price regulation exemption for the pipeline.
Division 2--Recommendations by NCC
161--Application to be dealt with in accordance with
the Rules
Requires applications to be dealt with in accordance with
the rules.
162--NCC's recommendation
Requires the NCC to make a recommendation to the
Commonwealth Minister.
163--General principle governing NCC's
recommendation
Requires the NCC to weigh the benefits to the public of
granting the exemption against the detriments to the
public. The NCC is required to have regard to the
national gas objective and other relevant matters.
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Division 3--Making and effect of price regulation
exemption
164--Making of price regulation exemption
Requires the Commonwealth Minister to decide whether
or not to make a price regulation exemption following
receipt of the NCC's recommendation.
165--Principles governing the making of a price
regulation exemption
Requires the Commonwealth Minister to weigh the
benefits to the public, of granting the exemption against
the detriments to the public and to have regard to the
national gas objective and other relevant matters.
166--Conditions applying to a price regulation
exemption
Requires service providers to publish certain information
and provide information to the AER or Commonwealth
Minister.
167--Effect of price regulation exemption
Describes the effect of a price regulation exemption.
Division 4--Limited access arrangements
168--Limited access arrangements for pipeline
services provided by international pipeline to
which a price regulation exemption applies
Requires holders of price regulation exemptions to
submit limited access arrangements.
Division 5--Other matters
169--Other obligations to which service provider is
subject
Lists some provisions to which the service provider for a
pipeline to which a price regulation exemption applies is
subject.
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170--Service provider must not price discriminate in
providing international pipeline services
Prohibits a service provider from engaging in price
discrimination.
Part 4--Extended or modified application of
greenfields pipeline incentive
171--Requirement for conformity between pipeline
description and pipeline as constructed
Provides that a greenfields pipeline incentive applies to
the pipeline as described in the relevant pipeline
description. If the pipeline, as constructed, differs from
the pipeline as described in the pipeline description, the
incentive does not attach to the pipeline and the service
provider is not entitled to its benefit.
172--Power of relevant Minister to amend pipeline
description
Allows the relevant Minister, on application by the
service provider, to amend the relevant pipeline
description.
Part 5--Early termination of greenfields
pipeline incentive
173--Greenfields pipeline incentive may lapse
Provides that a greenfields pipeline incentive lapses if the
pipeline for which it was granted is not commissioned
within 3 years after the incentive was granted.
174--Revocation by consent
The relevant Minister may, at the request of the service
provider, revoke a greenfields pipeline incentive.
175--Revocation for misrepresentation
Allows the relevant Minister to revoke a greenfields
pipeline incentive on application by the AER, on the
grounds that the applicant misrepresented a material fact
or failed to disclose material information.
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176--Revocation for breach of condition to which a
price regulation exemption is subject
Allows the relevant Minister to revoke a greenfields
pipeline incentive on application by the AER, on the
grounds that the applicant has breached a condition to
which the price regulation is subject.
177--Exhaustive provision for termination of
greenfields pipeline incentive
Provides that a greenfields pipeline incentive does not
terminate, and cannot be revoked, before the end of its
term except as provided in this Part.
Chapter 6--Access disputes
Part 1--Interpretation and application
178--Definitions
Defines terms used in this Chapter.
179--Chapter does not limit how disputes about
access may be raised or dealt with
Provides that this Chapter does not limit how parties may
resolve access disputes.
180--No price or revenue regulation for access
disputes relating to international pipeline
services
Prohibits the resolution of a dispute about a pipeline
service, subject to an international price regulation
exemption by imposing price or revenue regulation.
Part 2--Notification of access dispute
181--Notification of access dispute
Allows users, prospective users or service providers to
notify the AER of an access dispute.
182--Withdrawal of notification
Allows a party to withdraw a notification.
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183--Parties to an access dispute
Lists the parties to an access dispute.
Part 3--Access determinations
184--Determination of access dispute
Requires the AER to make determinations on access.
185--Dispute resolution body may require parties to
mediate, conciliate or engage in an alternative
dispute resolution process
Allows the AER to require parties to engage in alternative
dispute resolution.
186--Dispute resolution body may terminate access
dispute in certain cases
Allows the AER to terminate a dispute if it considers that;
the notification was vexatious, the subject matter of the
dispute is trivial, misconceived or lacking in substance,
the party who notified the dispute did not negotiate in
good faith or a specific termination circumstances has
occurred.
187--No access determination if dispute resolution
body considers there is genuine competition
The AER may refuse to make a determination if it
considers that the pipeline service could be provided on a
genuinely competitive basis.
188--Restrictions on access determinations
Prevents the AER from making a determination that
affects existing contractual rights or rights under earlier
access determinations.
189--Access determination must give effect to
applicable access arrangement
Requires the AER to apply an applicable access
arrangement when making an access determination.
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190--Access determinations and past contributions
of capital to fund installations or the
construction of new facilities
Allows the AER to consider past contributions of capital
by users.
191--Rules may allow determination that varies
applicable access arrangement for installation
of a new facility
Allows the AEMC to make Rules concerning alteration
of access arrangements when access determinations
require the construction of a new facility.
192--Access determinations need not require the
provision of a pipeline service
Enables the AER to make an access determination that
does not grant access to a pipeline service.
193--Content of access determinations
Specifies the content of an access determination.
Part 4--Variation of access determinations
194--Variation of access determination
Allows the AER to vary an access determination at the
request of a party to the determination if no other parties
object.
Part 5--Compliance with access
determinations
195--Compliance with access determination
Requires parties to an access determination to comply
with the determination.
Part 6--Access dispute hearing procedure
196--Hearing to be in private
Access Dispute hearings are to be conducted in private
unless the parties agree.
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197--Right to representation
Allows other people to appear as representatives of the
parties to the dispute.
198--Procedure of dispute resolution body
Establishes the procedure for the AER in an access
dispute.
199--Particular powers of dispute resolution body in
a hearing
Gives the AER powers to assist it conduct hearings.
200--Disclosure of information
Allows the AER to authorise disclosure of information as
part of a hearing.
201--Power to take evidence on oath or affirmation
Empowers the AER to take evidence under oath.
202--Failing to attend as a witness
Imposes a penalty of $2 000 for failure of a witness to
attend.
203--Failing to answer questions etc
Imposes a penalty of $2 000 for witnesses who fail to
answer questions.
204--Intimidation etc
Creates a penalty of $2 000 for intimidating witnesses.
205--Party may request dispute resolution body to
treat material as confidential
Allows a party to request that information be treated as
confidential and allows the AER to decide to treat the
information as confidential.
206--Costs
Creates a presumption that parties will pay their own
costs but allows the AER to award costs under some
circumstances.
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207--Outstanding costs are a debt due to party
awarded the costs
Allows parties to recover unpaid costs in court.
Part 7--Joint access dispute hearings
208--Definition
Defines terms used in this Part.
209--Joint dispute hearing
Allows the AER to conduct joint dispute hearings.
210--Consulting the parties
Requires the AER to consult with the parties before
deciding to hold a joint dispute hearing.
211--Constitution and procedure of dispute
resolution body for joint dispute hearings
Applies Chapter 6 Part 6 to joint dispute hearings.
212--Record of proceedings etc
Allows the AER to have regard to records of proceedings.
Part 8--Miscellaneous matters
213--Correction of access determinations for
clerical mistakes etc
Allows correction of minor clerical errors in a
determination.
214--Reservation of capacity during an access
dispute
Prohibits a service provider from altering a users access
rights during the period of a dispute.
215--Subsequent service providers bound by access
determinations
Applies the result of an access dispute to subsequent
service providers.
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216--Regulations about the costs to be paid by
parties to access dispute
Allows the regulations to specify charges for access
disputes.
Chapter 7--The Natural Gas Services
Bulletin Board
Part 1--The Bulletin Board Operator
217--The Bulletin Board operator
Allows the Bulletin Board operator to be prescribed by
regulation.
218--Obligation to establish and maintain the
Natural Gas Services Bulletin Board
Requires the Bulletin Board operator to establish and
maintain a Bulletin Board.
219--Other functions of the Bulletin Board operator
Gives the Bulletin Board operator additional functions to
assist them operate the Bulletin Board.
220--Powers of the Bulletin Board operator
Allows the Bulletin Board operator to do all things
necessary and convenient for the performance of its
functions.
221--Immunity of the Bulletin Board operator
Protects the Bulletin Board operator and its staff from
liability while performing their functions under this Law.
222--Fees for services provided
Allows the Rules to specify fees for access to the Bulletin
Board.
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Part 2--Bulletin Board information
223--Obligation to give information to the Bulletin
Board operator
Lists classes of people who the Rules may require to
provide information to the Bulletin Board operator.
224--Person cannot rely on duty of confidence to
avoid compliance with obligation
Prevents people relying on duties of confidence to avoid
providing information to the Bulletin Board operator.
225--Giving to Bulletin Board operator false and
misleading information
Prohibits providing false or misleading information to the
Bulletin Board operator.
226--Immunity of persons giving information to the
Bulletin Board operator
Protects people providing information to the Bulletin
Board operator from civil monetary liability.
Part 3--Protection of information
227--Protection of information by the Bulletin
Board operator
Requires the Bulletin Board operator to only use
information given to it in ways permitted by the Law or
Rules.
228--Protection of information by employees etc of
the Bulletin Board operator
Prohibits employees of the Bulletin Board operator and
other persons performing work for the Bulletin Board
operator, from using information given to them for
anything other than uses allowed by the Law or Rules.
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Chapter 8--Proceedings under the National
Gas Law
Part 1--General
229--Instituting civil proceedings under this Law
Provides that proceedings for breach of the NGL,
Regulations or Rules may not be instituted except as
provided in this Part.
230--Time limit within which proceedings may be
instituted
Provides for the time limit within which proceedings may
be instituted.
Part 2--Proceedings by the AER in respect
of this Law, Regulations or the Rules
231--AER proceedings for breaches of a provision
of this Law, Regulations or the Rules that are
not offences
Provides for the orders that may be made in proceedings
in respect of breaches of provisions of the NGL,
Regulations or Rules that are not offence provisions.
232--Proceedings for declaration that a person is in
breach of a conduct provision
Allows a person other than the AER to apply to a court
for a declaration that a person is in breach of a conduct
provision.
233--Actions for damages by persons for breach of
conduct provision
Allows recovery of damages by people who suffer loss as
a result of a breach of a conduct provision.
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Part 3--Matters relating to breaches of this
Law, the Regulations or the Rules
234--Matters for which there must be regard in
determining amount of civil penalty
Sets out matters to be taken into account in determining
civil penalties.
235--Breach of a civil penalty provision is not an
offence
Provides that a breach of a civil penalty provision
(as defined in clause 58) is not an offence.
236--Breaches of civil penalty provisions involving
continuing failure
Provides for breaches of civil penalty provisions
involving continuing failure.
237--Conduct in breach of more than 1 civil penalty
provision
Provides for liability for one civil penalty in respect of
the same conduct constituting a breach of two or more
civil penalty provisions.
238--Persons involved in breach of civil penalty
provision
Provides for aiding, abetting, counselling, procuring or
being knowingly concerned in or party to a breach of a
civil penalty provision.
239--Attempt to breach a civil penalty provision
Provides that an attempted breach of a civil penalty
provision is deemed to be a breach of that provision.
240--Civil penalties payable to the Commonwealth
Provides that civil penalties are payable to the
Commonwealth.
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Part 4--Judicial review of decisions under
this Law, the Regulations and the Rules
241--Definition
Defines terms used in this Part.
242--Applications for judicial review of decisions of
the AEMC
Provides that aggrieved persons (as defined) may apply
for judicial review in respect of AEMC decisions and
determinations; the operation of a decision or
determination is not affected by an application for
judicial review, unless the Court otherwise orders.
243--Applications for judicial review of decisions of
the Bulletin Board operator
Provides that aggrieved persons (as defined) may apply
for judicial review in respect of Bulletin Board Operator
decisions and determinations; the operation of a decision
or determination is not affected by an application for
judicial review, unless the Court otherwise orders.
Part 5--Merits review and other non-judicial
review
Division 1--Interpretation
244--Definitions
Defines terms used in this Part.
Division 2--Merits review for reviewable regulatory
decisions
245--Applications for review
Allows affected or interested persons to apply for review
or a reviewable regulatory decision.
246--Grounds for review
Allows review if the original decision maker made an
error in finding of fact that was material to the decision or
their decision was incorrect or unreasonable.
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247--By when an application must be made
Requires applications for review to be made within
15 business days.
248--Tribunal must not grant leave unless serious
issue to be heard and determined
The Tribunal may only hear matters if it is convinced that
there is a serious issue to be heard.
249--Leave must be refused if application is about
an error relating to revenue amounts below
specified threshold
Leave for review of some decisions must be refused if the
amount in dispute is smaller than the lesser of five
million dollars or two percent of average annual regulated
revenue.
250--Tribunal must refuse to grant leave if
submission not made or is made late
The Tribunal must refuse leave to an applicant other than
a service provider if the applicant failed to make
submissions to the original decision maker or made a late
submission.
251--Tribunal may refuse to grant leave to service
provider in certain cases
Allows the Tribunal to refuse leave for a review to a
service provider if they; failed to comply with a request
of the original decision maker, delayed the making of the
original decision or misled the original decision maker.
252--Effect of application on operation of
reviewable regulatory decisions
Provides that an application for review stays the
operation of all reviewable regulatory decisions accept
access arrangement decisions and associate contract
decisions.
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253--Intervention by others in a review without
leave
Allows the service provider to whom a reviewable
regulatory decision applies and Minister's of participating
jurisdictions to intervene in a review without the leave of
the Tribunal.
254--Leave for reviewable regulatory decision
process participants
Allows other parties to intervene in a review with the
leave of the Tribunal.
255--Leave for user or consumer intervener
Allows user or consumer groups to intervene in a review
with the leave of the Tribunal.
256--Interveners may raise new grounds for review
Allows interveners to raise new grounds of review.
257--Parties to a review under this Division
Lists the parties to a review.
258--Matters that parties to a review may and may
not raise in a review
Lists matters that may and may not be raised in a review
by the parties to a review.
259--Tribunal must make determination
Requires the Tribunal to make a decision and allows them
to affirm, set aside or vary the original decision or remit
the decision to the original decision maker.
260--Target time limit for Tribunal for making a
determination under this Division
Provides a target time limit of 3 months for the Tribunal
to make decisions.
261--Matters to be considered by Tribunal in
making determination
Lists material that may be considered by the Tribunal.
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262--Assistance from NCC in certain cases
Allows the Tribunal to seek assistance from the NCC
when reviewing ministerial coverage decisions.
Division 3--Tribunal review of AER information
disclosure decisions under section 329
263--Application for review
Allows applications for review of AER information
disclosure decisions.
264--Exclusion of public in certain cases
Allows the review to be conducted in private.
265--Determination in the review
Allows the Tribunal to affirm the AER's decision or
forbid or restrict disclosure of the information.
266--Tribunal must be taken to have affirmed
decision if decision not made within time
Deems the Tribunal to have affirmed the AER's decision
if it does not make a decision within 20 business days.
267--Assistance from the AER in certain cases
Allows the AER to request assistance from the AER in
certain circumstances.
Division 4--General
268--Costs in a review
Specifies how the AER may award costs.
269--Amount of costs
Allows the Tribunal to determine how the amount of
costs will be calculated.
270--Review of Part
Requires the MCE to review this Part within 7 years after
its commencement.
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Part 6--Enforcement of access
determinations
271--Enforcement of access determinations
Allows parties to an access determination to apply to a
court to enforce the determination.
272--Consent injunctions
Allows the court to grant consent injunctions.
273--Interim injunctions
Allows the court to grant interim injunctions.
274--Factors relevant to granting a restraining
injunction
Lists factors to be considered by the court when granting
restraining injunctions.
275--Factors relevant to granting a mandatory
injunction
Lists factors to be considered by the court when granting
mandatory injunctions.
276--Discharge or variation of injunction or other
order
Allows the court to discharge or vary injunctions.
Part 7--Infringement notices
277--Power to serve a notice
Provides that the AER may serve infringement notices for
breaches of relevant civil penalty provisions.
278--Form of notice
Provides for the form of the infringement notice.
279--Infringement penalty
Sets out the amount of the infringement penalty: $4 000,
or such lesser amount as is prescribed in the Regulations,
for a natural person; or $20 000, or such lesser amount as
is prescribed in the Regulations, for a body corporate.
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280--AER cannot institute proceedings while
infringement notice on foot
Provides that the AER must not, without first
withdrawing the infringement notice, institute
proceedings for a breach until the period for payment
under the infringement notice expires.
281--Late payment of penalty
Provides for when the AER may accept late payment of
an infringement penalty.
282--Withdrawal of notice
Provides that the AER may withdraw an infringement
notice.
283--Refund of infringement penalty
Provides for refund of an infringement penalty if the
infringement notice is withdrawn.
284--Payment expiates breach of civil penalty
provision
Provides for expiation of a breach subject to an
infringement notice.
285--Payment not to have certain consequences
Provides that payment of an infringement penalty is not
to be taken to be an admission of a breach or of liability.
286--Conduct in breach of more than 1 civil penalty
provision
Provides for payment of one infringement penalty in
respect of the same conduct constituting a breach of two
or more civil penalty provisions for which two or more
infringement notices have been served.
Part 8--Further provision for corporate
liability for breaches of this Law etc
287--Definition
Defines terms used in this Part.
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288--Offences and breaches by corporations
Provides that an officer (as defined) of a corporation is
also liable for a breach of an offence provision or civil
penalty provision by the corporation if the officer
knowingly authorised or permitted the breach.
289--Corporations also in breach if officers and
employees are in breach
Provides that an act committed by an officer (as defined)
or employee of a relevant participant (as defined) will be
a breach where the act, if committed by the relevant
participant, would be a breach.
Chapter 9--The making of the National Gas
Rules
Part 1--General
Division 1--Interpretation
290--Definitions
Sets out definitions for the purposes of this Part.
Division 2--Rule making tests
291--Application of national gas objective
Requires the AEMC to make rules that contribute
towards achieving the National Gas Objective.
292--AEMC must take into account form of
regulation factors in certain cases
Requires the AEMC to consider the form of regulation
factors when making a rule that specifies reference
services or allows the AER to determine reference
services.
293--AEMC must take into account revenue and
pricing principles in certain cases
The AEMC must take the revenue and pricing principles
into account when specifying regulatory economic
methodologies.
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Part 2--Initial National Gas Rules
294--South Australian Minister to make initial
National Gas Rules
Provides for the South Australian Minister to make the
initial Rules. A notice of making must be published in the
South Australian Government Gazette and the Rules must
be made publicly available.
Part 3--Procedure for the making of a Rule
by the AEMC
295--Initiation of making of a Rule
Provides for who may request the making of a Rule and
also provides that the AEMC must not make a Rule on its
own initiative except in certain circumstances.
296--AEMC may make more preferable Rule in
certain cases
The AEMC will be able to make a Rule that is different
from a market initiated Rule if the AEMC is satisfied that
its proposed rule will or is more likely to better contribute
to the achievement of the national electricity objective.
297--AEMC may make Rules that are consequential
to a Rule request
Allows the AEMC to make Rules that are consequential
to a rule change request.
298--Content of requests for a Rule
Sets out what a request for the making of a Rule must
contain.
299--Waiver of fee for Rule requests
Allows the AEMC to waive a fee for a rule request.
300--Consolidation of 2 or more Rule requests
The powers of the AEMC to consolidate requests for
Rules are to be clarified. The processes surrounding the
consideration of a request for a Rule are to be revised to
some extent.
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301--Initial consideration of request for Rule
Provides for initial consideration by the AEMC of a
request for a Rule.
302--AEMC may request further information from
Rule proponent in certain cases
The AEMC will be given express power to request
additional information from a person who requests the
making of a Rule.
303--Notice of proposed Rule
If the AEMC decides to act on a request for a rule to be
made, or forms an intention to make an AEMC initiated
rule, the AEMC will publish notice of the request or
intention and a draft of the proposed Rule.
304--Publication of non-controversial or urgent
final Rule determination
Provides for the publication of non-controversial and
urgent Rules.
305--"Fast track" Rules where previous public
consultation by gas market regulatory body or
an AEMC review
Certain requests for Rules will be able to be dealt with
expeditiously.
306--Right to make written submissions and
comments
Provides for the making of written submissions on a
proposed Rule.
307--AEMC may hold public hearings before draft
Rule determination
Provides for the holding of a hearing in relation to a
proposed Rule.
308--Draft Rule determination
Requires the AEMC to publish its draft determination,
including reasons, in relation to a proposed Rule.
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309--Right to make written submissions and
comments in relation to draft Rule
determination
Provides for written submissions on a draft Rule
determination.
310--Pre-final Rule determination hearing may be
held
Provides for holding of a pre-final determination in
relation to a draft Rule determination.
311--Final Rule determination as to whether to
make a Rule
Requires the AEMC to publish its final Rule
determination, including reasons.
312--Further draft Rule determination may be
made where proposed Rule is a proposed more
preferable Rule
The AEMC may take action to consult, receive
submissions and conduct hearings in relation to a more
preferable Rule.
313--Making of Rule
Requires the AEMC to make a Rule as soon as
practicable after publication of its final Rule
determination. Notice of the making of a Rule must be
published in the South Australian Government Gazette.
314--Operation and commencement of Rule
Provides that a Rule comes into operation on the day the
notice of making is published or on such later date as is
specified in that notice or the Rule.
315--Rule that is made to be published on website
and made available to the public
Requires the AEMC, without delay after making a Rule,
to publish the Rule on its website and make a copy
available for inspection at its offices.
316--Evidence of the National Gas Rules
Is an evidentiary provision relating to the Rules.
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Part 4--Miscellaneous provisions relating to
rule making by the AEMC
317--Extension of periods of time in Rule making
procedure
Provides a general power for the AEMC to extend
periods of time in the Rule making procedure.
318--AEMC may extend period of time for making
of final Rule determination for further
consultation
Allows the AEMC to extend periods of time for
consultation as a result of comments received during
consultation.
319--AEMC may publish written submissions and
comments unless confidential
Allows the AEMC to publish submissions unless they are
confidential.
320--AEMC must publicly report on Rules not
made within 12 months of public notification of
requests
Requires the AEMC to publicly report if it fails to make a
Rule within 12 months of receiving a request.
Chapter 10--General
Part 1--Provisions relating to applicable
access arrangements
321--Protection of certain pre-existing contractual
rights
Prevents access arrangement decisions from depriving
parties of protected contractual rights.
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322--Service provider may enter into agreement for
access different from applicable access
arrangement
Allows a service provider to enter into agreement for
access different from applicable access arrangement.
323--Applicable access arrangements continue to
apply regardless of who provides pipeline
service
Applies an access arrangement to whichever service
provider provides the service.
Part 2--Handling of confidential information
Division 1--Disclosure of confidential information
held by AER
324--Authorised disclosure of information given to
the AER in confidence
Allows the AER to disclose information in some
circumstances.
325--Disclosure with prior written consent is
authorised
Allows the AER to disclose information with the consent
of the person who provided it.
326--Disclosure for purposes of court and tribunal
proceedings and to accord natural justice
Allows the AER to disclose information if it is required
to for a court or tribunal proceedings.
327--Disclosure of information given to the AER
with confidential information omitted
Allows the AER to omit confidential information before
disclosing a document.
328--Disclosure of information given in confidence
does not identify anyone
Allows the AER to disclose de-identified information.
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329--Disclosure of confidential information
authorised if detriment does not outweigh
public benefit
Allows the AER to disclose information if the detriment
does not outweigh the public benefit.
Division 2--Disclosure of confidential information
held by relevant Ministers, NCC and AEMC
330--Definitions
Defines terms used in this division.
331--Confidentiality of information received for
scheme procedure purpose and for making of
scheme decision
Allows the disclosure of confidential information to other
scheme decision makers or the MCE as well as it is
identified as confidential.
Part 3--Miscellaneous
332--Failure to make a decision under this Law or
the Rules within time does not invalidate the
decision
Provides that a failure to make a decision in time does not
invalidate the decision.
333--Withdrawal of applications relating to
coverage or reclassification
Allows applications for decisions to be withdrawn.
334--Notification of Ministers of participating
jurisdictions of receipt of application
Requires the NCC to notify Minister's of participating
jurisdictions of applications for ministerial decisions.
335--Relevant Minister may request NCC to give
information or assistance
Allows the relevant Minister to request assistance from
the NCC when making a decision.
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336--Savings and transitionals
Schedule 3 has effect under the Law.
Schedule 1--Subject matter for the National Gas
Rules
Specifies matters about which the AEMC may make Rules.
Schedule 2--Miscellaneous provisions relating to
interpretation
Contains interpretation provisions that will apply to the NGL,
Regulations and Rules.
Schedule 3--Savings and transitionals
Sets out savings and transitional provisions.
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South Australia
National Gas (South Australia) Bill 2008
A Bill For
An Act to establish a framework to enable third parties to gain access to
certain natural gas pipeline services; to repeal the Gas Pipelines Access
(South Australia) Act 1997; to amend the Australian Energy Market
Commission Establishment Act 2004; and for other purposes.
Contents
Part 1--Preliminary
1 Short title
2 Commencement
3 Interpretation
4 Crown to be bound
5 Application to coastal waters
6 Extra-territorial operation
Part 2--National Gas (South Australia) Law and National Gas
(South Australia) Regulations
7 Application of National Gas Law
8 Application of regulations under National Gas Law
9 Interpretation of some expressions in National Gas (South
Australia) Law and National Gas (South Australia) Regulations
Part 3--Making of regulations and rules under National Gas
Law
10 Definitions
11 General regulation-making power for National Gas Law
12 Specific regulation-making power
13 Making of rules
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Part 4--Cross vesting of powers
14 Conferral of powers on Commonwealth Minister and
Commonwealth bodies to act in this State
15 Conferral of powers on Ministers of participating States and
Territories to act in this State
16 Conferral of functions or powers on State Minister
Part 5--General
17 Exemption from taxes
18 Actions in relation to cross boundary pipelines
19 Conferral of functions and powers on Commonwealth bodies
Part 6--Repeal of Gas Pipelines Access (South Australia)
Act 1997
20 Repeal of Gas Pipelines Access (South Australia) Act 1997
Part 7--Amendment of this Act when Offshore Petroleum
Act 2006 commences
21 Amendment of this Act when Offshore Petroleum Act 2006
commences
Part 8--Amendment of Australian Energy Market Commission
Establishment Act 2004
22 Amendment of Australian Energy Market Commission
Establishment Act 2004
SCHEDULE--NATIONAL GAS LAW
Chapter 1--Preliminary
Part 1--Citation and interpretation
1 Citation
2 Definitions
3 Meaning of civil penalty provision
4 Meaning of conduct provision
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5 Meaning of prospective user
6 Meaning of regulatory obligation or requirement
7 Meaning of regulatory payment
8 Meaning of service provider
9 Passive owners of scheme pipelines deemed to provide or
intend to provide pipeline services
10 Things done by 1 service provider to be treated as being done
by all of service provider group
11 Local agents of foreign service providers
12 Commissioning of a pipeline
13 Pipeline classification criterion
14 Jurisdictional determination criteria--cross boundary
distribution pipelines
15 Pipeline coverage criteria
16 Form of regulation factors
17 Effect of separate and consolidated access arrangements in
certain cases
18 Certain extensions to, or expansion of the capacity of, pipelines
to be taken to be part of a covered pipeline
19 Expansions of and extensions to covered pipeline by which light
regulation services are provided
20 Interpretation generally
Part 2--Participating jurisdictions
21 Participating jurisdictions
22 Ministers of participating jurisdictions
Part 3--National gas objective and principles
Division 1--National gas objective
23 National gas objective
Division 2--Revenue and pricing principles
24 Revenue and pricing principles
Division 3--MCE policy principles
25 MCE statements of policy principles
Part 4--Operation and effect of National Gas Rules
26 National Gas Rules to have force of law
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Chapter 2--Functions and powers of gas market
regulatory entities
Part 1--Functions and powers of the Australian
Energy Regulator
Division 1--General
27 Functions and powers of the AER
28 Manner in which AER must perform or exercise AER economic
regulatory functions or powers
29 Delegations
30 Confidentiality
Division 2--Search warrants
31 Definitions
32 Authorised person
33 Identity cards
34 Return of identity cards
35 Search warrant
36 Announcement of entry and details of warrant to be given to
occupier or other person at premises
37 Immediate entry permitted in certain cases
38 Copies of seized documents
39 Retention and return of seized documents or things
40 Extension of period of retention of documents or things seized
41 Obstruction of persons authorised to enter
Division 3--General information gathering powers
42 Power to obtain information and documents in relation to
performance and exercise of functions and powers
Division 4--Regulatory information notices and general
regulatory information orders
Subdivision 1--Interpretation
43 Definitions
44 Meaning of contributing service
45 Meaning of general regulatory information order
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46 Meaning of regulatory information notice
47 Division does not limit operation of information gathering
powers under Division 3
Subdivision 2--Serving and making of regulatory information
instruments
48 Service and making of regulatory information instrument
49 Additional matters to be considered for related provider
regulatory information instruments
50 AER must consult before publishing a general regulatory
information order
51 Publication requirements for general regulatory information
orders
52 Opportunity to be heard before regulatory information notice is
served
Subdivision 3--Form and content of regulatory information
instruments
53 Form and content of regulatory information instrument
54 Further provision about the information that may be described
in a regulatory information instrument
55 Further provision about manner in which information must be
provided to AER or kept
Subdivision 4--Compliance with regulatory information
instruments
56 Compliance with regulatory information notice that is served
57 Compliance with general regulatory information order
58 Exemptions from compliance with general regulatory
information order
59 Assumptions where there is non-compliance with regulatory
information instrument
Subdivision 5--General
60 Providing to AER false and misleading information
61 Person cannot rely on duty of confidence to avoid compliance
with regulatory information instrument
62 Legal professional privilege not affected
63 Protection against self-incrimination
Division 5--Service provider performance reports
64 Preparation of service provider performance reports
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Division 6--Miscellaneous matters
65 Consideration by the AER of submissions or comments made to
it under this Law or the Rules
66 Use of information provided under a notice under Division 3 or
a regulatory information instrument
67 AER to inform certain persons of decisions not to investigate
breaches, institute proceedings or serve infringement notices
68 AER enforcement guidelines
Part 2--Functions and powers of the Australian Energy
Market Commission
Division 1--General
69 Functions and powers of the AEMC
70 Delegations
71 Confidentiality
72 AEMC must have regard to national gas objective
73 AEMC must have regard to MCE statements of policy
principles in relation to Rule making and reviews
Division 2--Rule making functions and powers of the
AEMC
74 Subject matter for National Gas Rules
75 Rules relating to MCE or Ministers of participating jurisdictions
require MCE consent
76 AEMC must not make Rules that create criminal offences or
impose civil penalties for breaches
77 Documents etc applied, adopted and incorporated by Rules to be
publicly available
Division 3--Committees, panels and working groups of the
AEMC
78 Establishment of committees, panels and working groups
Division 4--MCE directed reviews
79 MCE directions
80 Terms of reference
81 Notice of MCE directed review
82 Conduct of MCE directed review
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Division 5--Other reviews
83 Rule reviews by the AEMC
Division 6--Miscellaneous matters
84 AEMC must publish and make available up to date versions of
Rules
85 Fees
86 Immunity from personal liability of AEMC officials
Part 3--Functions and powers of Ministers of
participating jurisdictions
87 Functions and powers of Minister of this participating
jurisdiction under this Law
88 Functions and powers of Commonwealth Minister under this
Law
Part 4--Functions and powers of the NCC
89 Functions and powers of NCC under this Law
90 Confidentiality
Part 5--Functions and powers of Tribunal
91 Functions and powers of Tribunal under this Law
Chapter 3--Coverage and classification of pipelines
Part 1--Coverage of pipelines
Division 1--Coverage determinations
92 Application for recommendation that a pipeline be a covered
pipeline
93 Application to be dealt with in accordance with the Rules
94 NCC may defer consideration of application in certain cases
95 NCC coverage recommendation
96 NCC must not make coverage recommendation if tender
approval decision becomes irrevocable
97 Principles governing the making of a coverage recommendation
98 Initial classification decision to be made as part of
recommendation
99 Relevant Minister's determination on application
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100 Principles governing the making of a coverage determination or
decision not to do so
101 Operation and effect of coverage determination
Division 2--Coverage revocation determinations
102 Application for a determination that a pipeline no longer be a
covered pipeline
103 Application to be dealt with in accordance with the Rules
104 NCC coverage revocation recommendation
105 Principles governing the making of a coverage revocation
recommendation
106 Relevant Minister's determination on application
107 Principles governing the making of a coverage revocation
determination or decision not to do so
108 Operation and effect of coverage revocation determination
Part 2--Light regulation of covered pipeline services
Division 1--Making of light regulation determinations
Subdivision 1--Decisions when pipeline is not a covered pipeline
109 Application of Subdivision
110 NCC's decision on light regulation of pipeline services
Subdivision 2--Decisions when pipeline is a covered pipeline
111 Application of Subdivision
112 Application
113 Application to be dealt with in accordance with the Rules
114 NCC's decision on light regulation of pipeline services
Subdivision 3--Operation and effect of light regulation
determinations
115 When light regulation determinations take effect
116 Submission of limited access arrangement for light regulation
services
Division 2--Revocation of light regulation determinations
Subdivision 1--On advice from service providers
117 Advice by service provider that light regulation services should
cease to be light regulation services
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Subdivision 2--On application by persons other than service
providers
118 Application (other than by service provider) for revocation of
light regulation determinations
119 Decisions on applications made around time of applications for
coverage revocation determinations
120 NCC decision on application where no application for a
coverage revocation recommendation
121 Operation and effect of decision of NCC under this Division
Division 3--Principles governing light regulation
determinations
122 Principles governing the making or revoking of light regulation
determinations
Division 4--Revocation if coverage determination not made
123 Light regulation determination revoked if coverage
determination not made
Division 5--Effect of pipeline ceasing to be covered pipeline
124 Light regulation services cease to be such services on cessation
of coverage of pipeline
Division 6--AER reviews into designated pipelines
125 AER reviews
Part 3--Coverage of pipelines the subject of tender
process
126 Tender approval pipelines deemed to be covered pipelines
Part 4--Coverage following approval of voluntary
access arrangement
127 Certain pipelines become covered pipelines on approval of
voluntary access arrangement
Part 5--Reclassification of pipelines
128 Service provider may apply for reclassification of pipeline
129 Reclassification decision
130 Effect of reclassification decision
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Chapter 4--General requirements for provision of
covered pipeline services
Part 1--General duties for provision of pipeline services
by covered pipelines
131 Service provider must be legal entity of a specified kind to
provide pipeline services by covered pipeline
132 Submission of full access arrangement or revisions to applicable
full access arrangements
133 Preventing or hindering access
134 Supply and haulage of natural gas
135 Covered pipeline service provider must comply with queuing
requirements
136 Covered pipeline service provider providing light regulation
services must not price discriminate
Part 2--Structural and operational separation
requirements (ring fencing)
Division 1--Interpretation
137 Definitions
138 Meaning of marketing staff
Division 2--Minimum ring fencing requirements
139 Carrying on of related businesses prohibited
140 Marketing staff and the taking part in related businesses
141 Accounts that must be prepared, maintained and kept
Division 3--Additional ring fencing requirements
142 Division does not limit operation of Division 2
143 AER ring fencing determinations
144 AER to have regard to likely compliance costs of additional ring
fencing requirements
145 Types of ring fencing requirements that may be specified in an
AER ring fencing determination
Division 4--AER ring fencing exemptions
146 Exemptions from minimum ring fencing requirements
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Division 5--Associate contracts
147 Service provider must not enter into or give effect to associate
contracts that have anti-competitive effect
148 Service provider must not enter into or give effect to associate
contracts inconsistent with competitive parity rule
Chapter 5--Greenfields pipeline incentives
Part 1--Interpretation
149 Definitions
150 International pipeline to be a transmission pipeline for purposes
of Chapter
Part 2--15-year no-coverage determinations
151 Application for 15-year no-coverage determination for proposed
pipeline
152 Application to be dealt with in accordance with the Rules
153 No-coverage recommendation
154 Principles governing the making of a no-coverage
recommendation
155 Initial classification decision to be made as part of
recommendation
156 Relevant Minister's determination on application
157 Principles governing the making of a 15-year no-coverage
determination or decision not to do so
158 Effect of 15-year no-coverage determination
159 Consequences of Minister deciding against making 15-year
no-coverage determination for international pipeline
Part 3--Price regulation exemptions
Division 1--Application for price regulation exemption
160 Application for price regulation exemption
Division 2--Recommendations by NCC
161 Application to be dealt with in accordance with the Rules
162 NCC's recommendation
163 General principle governing NCC's recommendation
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Division 3--Making and effect of price regulation exemption
164 Making of price regulation exemption
165 Principles governing the making of a price regulation exemption
166 Conditions applying to a price regulation exemption
167 Effect of price regulation exemption
Division 4--Limited access arrangements
168 Limited access arrangements for pipeline services provided by
international pipeline to which a price regulation exemption
applies
Division 5--Other matters
169 Other obligations to which service provider is subject
170 Service provider must not price discriminate in providing
international pipeline services
Part 4--Extended or modified application of greenfields
pipeline incentive
171 Requirement for conformity between pipeline description and
pipeline as constructed
172 Power of relevant Minister to amend pipeline description
Part 5--Early termination of greenfields pipeline
incentive
173 Greenfields pipeline incentive may lapse
174 Revocation by consent
175 Revocation for misrepresentation
176 Revocation for breach of condition to which a price regulation
exemption is subject
177 Exhaustive provision for termination of greenfields pipeline
incentive
Chapter 6--Access disputes
Part 1--Interpretation and application
178 Definitions
179 Chapter does not limit how disputes about access may be raised
or dealt with
180 No price or revenue regulation for access disputes relating to
international pipeline services
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Part 2--Notification of access dispute
181 Notification of access dispute
182 Withdrawal of notification
183 Parties to an access dispute
Part 3--Access determinations
184 Determination of access dispute
185 Dispute resolution body may require parties to mediate,
conciliate or engage in an alternative dispute resolution process
186 Dispute resolution body may terminate access dispute in certain
cases
187 No access determination if dispute resolution body considers
there is genuine competition
188 Restrictions on access determinations
189 Access determination must give effect to applicable access
arrangement
190 Access determinations and past contributions of capital to fund
installations or the construction of new facilities
191 Rules may allow determination that varies applicable access
arrangement for installation of a new facility
192 Access determinations need not require the provision of a
pipeline service
193 Content of access determinations
Part 4--Variation of access determinations
194 Variation of access determination
Part 5--Compliance with access determinations
195 Compliance with access determination
Part 6--Access dispute hearing procedure
196 Hearing to be in private
197 Right to representation
198 Procedure of dispute resolution body
199 Particular powers of dispute resolution body in a hearing
200 Disclosure of information
201 Power to take evidence on oath or affirmation
202 Failing to attend as a witness
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203 Failing to answer questions etc
204 Intimidation etc
205 Party may request dispute resolution body to treat material as
confidential
206 Costs
207 Outstanding costs are a debt due to party awarded the costs
Part 7--Joint access dispute hearings
208 Definition
209 Joint dispute hearing
210 Consulting the parties
211 Constitution and procedure of dispute resolution body for joint
dispute hearings
212 Record of proceedings etc
Part 8--Miscellaneous matters
213 Correction of access determinations for clerical mistakes etc
214 Reservation of capacity during an access dispute
215 Subsequent service providers bound by access determinations
216 Regulations about the costs to be paid by parties to access
dispute
Chapter 7--The Natural Gas Services Bulletin
Board
Part 1--The Bulletin Board Operator
217 The Bulletin Board operator
218 Obligation to establish and maintain the Natural Gas Services
Bulletin Board
219 Other functions of the Bulletin Board operator
220 Powers of the Bulletin Board operator
221 Immunity of the Bulletin Board operator
222 Fees for services provided
Part 2--Bulletin Board information
223 Obligation to give information to the Bulletin Board operator
224 Person cannot rely on duty of confidence to avoid compliance
with obligation
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225 Giving to Bulletin Board operator false and misleading
information
226 Immunity of persons giving information to the Bulletin Board
operator
Part 3--Protection of information
227 Protection of information by the Bulletin Board operator
228 Protection of information by employees etc of the Bulletin
Board operator
Chapter 8--Proceedings under the National Gas
Law
Part 1--Proceedings generally
229 Instituting civil proceedings under this Law
230 Time limit within which proceedings may be instituted
Part 2--Proceedings for breaches of this Law,
Regulations or the Rules
231 AER proceedings for breaches of this Law, Regulations or the
Rules that are not offences
232 Proceedings for declaration that a person is in breach of a
conduct provision
233 Actions for damages by persons for breach of conduct provision
Part 3--Matters relating to breaches of this Law, the
Regulations or the Rules
234 Matters for which there must be regard in determining amount
of civil penalty
235 Breach of a civil penalty provision is not an offence
236 Breaches of civil penalty provisions involving continuing
failure
237 Conduct in breach of more than 1 civil penalty provision
238 Persons involved in breach of civil penalty provision or conduct
provision
239 Attempt to breach a civil penalty provision
240 Civil penalties payable to the Commonwealth
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Part 4--Judicial review of decisions under this Law, the
Regulations and the Rules
241 Definition
242 Applications for judicial review of decisions of the AEMC
243 Applications for judicial review of decisions of the Bulletin
Board operator
Part 5--Merits review and other non-judicial review
Division 1--Interpretation
244 Definitions
Division 2--Merits review for reviewable regulatory
decisions
245 Applications for review
246 Grounds for review
247 By when an application must be made
248 Tribunal must not grant leave unless serious issue to be heard
and determined
249 Leave must be refused if application is about an error relating to
revenue amounts below specified threshold
250 Tribunal must refuse to grant leave if submission not made or is
made late
251 Tribunal may refuse to grant leave to service provider in certain
cases
252 Effect of application on operation of reviewable regulatory
decisions
253 Intervention by others in a review without leave
254 Leave for reviewable regulatory decision process participants
255 Leave for user or consumer intervener
256 Interveners may raise new grounds for review
257 Parties to a review under this Division
258 Matters that parties to a review may and may not raise in a
review
259 Tribunal must make determination
260 Target time limit for Tribunal for making a determination under
this Division
261 Matters to be considered by Tribunal in making determination
262 Assistance from NCC in certain cases
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Division 3--Tribunal review of AER information disclosure
decisions under section 329
263 Application for review
264 Exclusion of public in certain cases
265 Determination in the review
266 Tribunal must be taken to have affirmed decision if decision not
made within time
267 Assistance from the AER in certain cases
Division 4--General
268 Costs in a review
269 Amount of costs
270 Review of Part
Part 6--Enforcement of access determinations
271 Enforcement of access determinations
272 Consent injunctions
273 Interim injunctions
274 Factors relevant to granting a restraining injunction
275 Factors relevant to granting a mandatory injunction
276 Discharge or variation of injunction or other order
Part 7--Infringement notices
277 Power to serve notice
278 Form of notice
279 Infringement penalty
280 AER cannot institute proceedings while infringement notice on
foot
281 Late payment of penalty
282 Withdrawal of notice
283 Refund of infringement penalty
284 Payment expiates breach of civil penalty provision
285 Payment not to have certain consequences
286 Conduct in breach of more than 1 civil penalty provision
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Part 8--Further provision for corporate liability for
breaches of this Law etc
287 Definition
288 Offences and breaches by corporations
289 Corporations also in breach if officers and employees are in
breach
Chapter 9--The making of the National Gas Rules
Part 1--General
Division 1--Interpretation
290 Definitions
Division 2--Rule making tests
291 Application of national gas objective
292 AEMC must take into account form of regulation factors in
certain cases
293 AEMC must take into account revenue and pricing principles in
certain cases
Part 2--Initial National Gas Rules
294 South Australian Minister to make initial National Gas Rules
Part 3--Procedure for the making of a Rule by the
AEMC
295 Initiation of making of a Rule
296 AEMC may make more preferable Rule in certain cases
297 AEMC may make Rules that are consequential to a Rule request
298 Content of requests for a Rule
299 Waiver of fee for Rule requests
300 Consolidation of 2 or more Rule requests
301 Initial consideration of request for Rule
302 AEMC may request further information from Rule proponent in
certain cases
303 Notice of proposed Rule
304 Publication of non-controversial or urgent final Rule
determination
305 "Fast track" Rules where previous public consultation by gas
market regulatory body or an AEMC review
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306 Right to make written submissions and comments
307 AEMC may hold public hearings before draft Rule
determination
308 Draft Rule determination
309 Right to make written submissions and comments in relation to
draft Rule determination
310 Pre-final Rule determination hearing may be held
311 Final Rule determination
312 Further draft Rule determination may be made where proposed
Rule is a proposed more preferable Rule
313 Making of Rule
314 Operation and commencement of Rule
315 Rule that is made to be published on website and made
available to the public
316 Evidence of the National Gas Rules
Part 4--Miscellaneous provisions relating to rule
making by the AEMC
317 Extension of periods of time in Rule making procedure
318 AEMC may extend period of time for making of final Rule
determination for further consultation
319 AEMC may publish written submissions and comments unless
confidential
320 AEMC must publicly report on Rules not made within
12 months of public notification of requests
Chapter 10--General
Part 1--Provisions relating to applicable access
arrangements
321 Protection of certain pre-existing contractual rights
322 Service provider may enter into agreement for access different
from applicable access arrangement
323 Applicable access arrangements continue to apply regardless of
who provides pipeline service
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Part 2--Handling of confidential information
Division 1--Disclosure of confidential information held by
AER
324 Authorised disclosure of information given to the AER in
confidence
325 Disclosure with prior written consent is authorised
326 Disclosure for purposes of court and tribunal proceedings and to
accord natural justice
327 Disclosure of information given to the AER with confidential
information omitted
328 Disclosure of information given in confidence does not identify
anyone
329 Disclosure of confidential information authorised if detriment
does not outweigh public benefit
Division 2--Disclosure of confidential information held by
relevant Ministers, NCC and AEMC
330 Definitions
331 Confidentiality of information received for scheme procedure
purpose and for making of scheme decision
Part 3--Miscellaneous
332 Failure to make a decision under this Law or the Rules within
time does not invalidate the decision
333 Withdrawal of applications relating to coverage or
reclassification
334 Notification of Ministers of participating jurisdictions of receipt
of application
335 Relevant Minister may request NCC to give information or
assistance
336 Savings and transitionals
Schedule 1--Subject matter for the National Gas Rules
Schedule 2--Miscellaneous provisions relating to
interpretation
Part 1--Preliminary
1 Displacement of Schedule by contrary intention
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Part 2--General
2 Law to be construed not to exceed legislative power of
Legislature
3 Vacant provision
4 Material that is, and is not, part of Law
5 References to particular Acts and to enactments
6 References taken to be included in Act or Law citation etc
7 Interpretation best achieving Law's purpose
8 Use of extrinsic material in interpretation
9 Compliance with forms
Part 3--Terms and references
10 Definitions
11 Provisions relating to defined terms and gender and number
12 Meaning of may and must etc
13 Words and expressions used in statutory instruments
14 References to Minister
15 Production of records kept in computers etc
16 References to this jurisdiction to be implied
17 References to officers and holders of offices
18 Reference to certain provisions of Law
Part 4--Functions and powers
19 Performance of statutory functions
20 Power to make instrument or decision includes power to amend
or repeal
21 Matters for which statutory instruments may make provision
22 Presumption of validity and power to make
23 Appointments may be made by name or office
24 Acting appointments
25 Powers of appointment imply certain incidental powers
26 Delegation
27 Exercise of powers between enactment and commencement
Part 5--Distance and time
28 Matters relating to distance and time
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Part 6--Service of documents
29 Service of documents and meaning of service by post etc
30 Meaning of service by post etc
Part 7--Evidentiary matters
Division 1--Publication on websites
31 Definitions
32 Publication of decisions on websites
Division 2--Evidentiary certificates
33 Definitions
34 Evidentiary certificates--AER
35 Evidentiary certificates--AEMC
36 Evidentiary certificates--NCC
37 Evidentiary certificates--relevant Minister and Commonwealth
Minister
38 Evidentiary certificates--Bulletin Board operator
Part 8--Commencement of this Law and statutory
instruments
39 Time of commencement of this Law or a provision of this Law
40 Time of commencement of a Rule
Part 9--Effect of repeal, amendment or expiration
41 Time of Law, the Regulations or Rules ceasing to have effect
42 Repealed Law, Regulation or Rule provisions not revived
43 Saving of operation of repealed Law, Regulation or Rule
provisions
44 Continuance of repealed provisions
45 Law and amending Acts to be read as one
Part 10--Offences under this Law
46 Penalty at foot of provision
47 Penalty other than at foot of provision
48 Indictable offences and summary offences
49 Double jeopardy
50 Aiding and abetting, attempts etc
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Part 11--Instruments under this Law
51 Schedule applies to statutory instruments
52 National Gas Rules to be construed so as not to exceed the
legislative power of the Legislature of this jurisdiction or the
powers conferred by this Law
53 Invalid Rules
Schedule 3--Savings and transitionals
Part 1--General
1 Definitions
2 Schedule subject to jurisdictional transitional arrangements in
jurisdictional legislation
Part 2--General savings provision
3 Saving of operation of old access law and Gas Code
Part 3--Classification and coverage of pipelines
4 Pending applications for the classification of pipelines lapse
5 Old scheme coverage determinations
6 Old scheme covered transmission pipelines
7 Old scheme covered distribution pipelines
8 Pending coverage applications under old scheme (before NCC
recommendation)
9 Pending relevant Minister decisions in relation to coverage
under old scheme
10 Pending relevant Minister decisions in relation to coverage that
are reviewed under old scheme
11 Pending old scheme coverage determinations where no
applications for review under old scheme
12 Pending old scheme coverage determinations where
applications for review under old scheme on foot
13 Pending old scheme no-coverage determinations where no
applications for review under old scheme
14 Pending old scheme no-coverage determinations where
applications for review under old scheme on foot
15 Pending coverage revocation applications under old scheme
(before NCC recommendation)
16 Pending relevant Minister decisions in relation to coverage
revocation under old scheme
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17 Pending relevant Minister decisions in relation to coverage
revocation that are reviewed under old scheme
18 Pending old scheme coverage revocation determinations where
no applications for review under old scheme
19 Pending old scheme coverage revocation determinations where
applications for review under old scheme on foot
20 Pending old scheme coverage non-revocation determinations
where no applications for review under old scheme
21 Pending old scheme coverage non-revocation determinations
where applications for review under old scheme on foot
22 Binding no-coverage determinations
23 Pending applications for binding no-coverage determinations
(before NCC recommendation)
24 Pending relevant Minister decisions for binding no-coverage
determinations under old scheme
25 Pending relevant Minister decisions in relation to binding
no-coverage determinations that are reviewed under old scheme
Part 4--Access arrangements
26 Current access arrangements (other than old scheme limited
access arrangements)
27 Old scheme limited access arrangements
28 Access arrangements submitted but not approved or rejected
before repeal of old scheme
29 Access arrangement revisions submitted but not approved or
rejected before repeal of old scheme
30 Certain provisions of the Gas Code to continue to apply to
current and proposed access arrangements
31 Certain decisions relating to certain access arrangements are
reviewable regulatory decisions for purposes of Chapter 8 Part 5
of the Law
32 Limited access arrangements submitted but not approved before
repeal of old scheme
33 Extensions and expansions policies
34 Queuing policies
Part 5--Price regulation exemptions
35 Old scheme price regulation exemptions
36 Pending applications for price regulation exemptions
37 Pending Commonwealth Minister decisions for price regulation
exemptions
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Part 6--Structural and operational separation (ring
fencing)
38 Definitions
39 Compliance with certain old scheme ring fencing requirements
sufficient compliance for 6 month period
40 Existing waivers of ring fencing obligations
41 Additional ring fencing obligations
Part 7--Access disputes
42 Non-finalised access disputes
Part 8--Investigations and proceedings
43 Investigations into breaches and possible breaches of the old
access law or Gas Code
44 AER may conduct investigations into breaches or possible
breaches of Gas Pipelines Access Law not investigated by a
relevant Regulator
45 AER may bring proceedings in relation to breaches of old
access law and Gas Code
Part 9--Associate contracts
46 Pending associate contract approvals that are approved after
commencement day
47 Pending associate contracts approvals that are not approved
48 Approved associate contracts
Part 10--Other
49 Pending and final tender approval requests lapse
50 Decisions approving final approval requests
51 Rights under certain change of law provisions in agreements or
deeds not to be triggered
52 References to relevant Regulator in access arrangements
53 Old scheme classifications and scheme participant
determinations
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The Parliament of South Australia enacts as follows:
Part 1--Preliminary
1--Short title
This Act may be cited as the National Gas (South Australia)
Act 2008.
2--Commencement
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) The Governor may, in acting under section 7(3) of the Acts
Interpretation Act 1915, fix different days for different provisions
of the Schedule to come into operation.
(3) Section 7(5) of the Acts Interpretation Act 1915 does not apply to
this Act or a provision of this Act.
3--Interpretation
(1) In this Act--
National Gas (South Australia) Law means the provisions
applying because of section 7 of this Act;
National Gas (South Australia) Regulations means the provisions
applying because of section 8 of this Act.
(2) Words and expressions used in the National Gas (South Australia)
Law and in this Act have the same respective meanings in this Act
as they have in that Law.
(3) This section does not apply to the extent that the context or subject
matter otherwise indicates or requires.
4--Crown to be bound
This Act, the National Gas (South Australia) Law and the National
Gas (South Australia) Regulations bind the Crown, not only in
right of South Australia but also, so far as the legislative power of
the Parliament permits, the Crown in all its other capacities.
5--Application to coastal waters
(1) This Act, the National Gas (South Australia) Law and the National
Gas (South Australia) Regulations apply in the coastal waters of
this State as if the coastal waters were within the limits of the State.
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(2) In this section--
adjacent area in respect of the State means the adjacent area of
this jurisdiction under the National Gas (South Australia) Law
(as defined in section 9(1) of this Act);
coastal waters, in relation to this State, means any sea that is on the
landward side of the adjacent area in respect of the State but is not
within the limits of the State.
6--Extra-territorial operation
It is the intention of the Parliament that this Act, the National Gas
(South Australia) Law and the National Gas (South Australia)
Regulations should, so far as possible, operate to the full extent of
the extra-territorial legislative power of the State.
Part 2--National Gas (South Australia) Law and
National Gas (South Australia) Regulations
7--Application of National Gas Law
The National Gas Law set out in the Schedule to this Act, as in
force for the time being--
(a) applies as a law of South Australia; and
(b) as so applying may be referred to as the National Gas
(South Australia) Law.
Note--
This section has effect to the extent to which the provisions of the
Schedule have come into operation--see section 2(2).
8--Application of regulations under National Gas Law
The regulations in force for the time being under Part 3 of this
Act--
(a) apply as regulations in force for the purposes of the
National Gas (South Australia) Law; and
(b) as so applying may be referred to as the National Gas
(South Australia) Regulations.
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9--Interpretation of some expressions in National Gas
(South Australia) Law and National Gas (South
Australia) Regulations
(1) In the National Gas (South Australia) Law and the National Gas
(South Australia) Regulations--
adjacent area of another participating jurisdiction means the area
that is identified in section 5A of the Petroleum (Submerged Lands)
Act 1967 of the Commonwealth as being the adjacent area in
respect of a State other than this State or in respect of the Northern
Territory;
adjacent area of this jurisdiction means the area that is identified
in section 5A of the Petroleum (Submerged Lands) Act 1967 of the
Commonwealth as being the adjacent area in respect of this State;
Court means the Supreme Court of South Australia;
designated Minister means the Minister to whom the
administration of this Act has been committed;
Legislature of this jurisdiction means the Parliament of South
Australia;
National Gas Law or this Law means the National Gas (South
Australia) Law;
this jurisdiction means the State of South Australia.
(2) The Acts Interpretation Act 1915 does not apply to the National
Gas (South Australia) Law or the National Gas (South Australia)
Regulations.
Part 3--Making of regulations and rules under
National Gas Law
10--Definitions
In this Part--
National Gas Law means the National Gas Law set out in the
Schedule to this Act as in force for the time being.
11--General regulation-making power for National Gas
Law
(1) The Governor may make such regulations as are contemplated by,
or necessary or expedient for the purposes of, the National Gas
Law.
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(2) Without limiting subsection (1), the regulations may prescribe fees
in respect of any matter under the National Gas Law, and provide
for the waiver or refund of such fees.
(3) Regulations under this Part may--
(a) be of general or limited application;
(b) vary according to the persons, times, places or
circumstances to which they are expressed to apply;
(c) in relation to fees, prescribe differential fees or provide
for fees to be determined according to prescribed factors.
(4) Once the Governor has made a regulation prescribing 1 or more
pipelines to be designated pipelines for the purposes of the
definition of designated pipeline in section 2 of the National Gas
Law, the Governor cannot make another regulation that prescribes
any other pipeline to be a designated pipeline.
(5) Regulations under this Part may be made only on the unanimous
recommendation of the Ministers of the participating jurisdictions.
(6) Section 10 of the Subordinate Legislation Act 1978 does not apply
to a regulation under this Part.
12--Specific regulation-making power
(1) Without limiting the generality of section 11, the regulations may
deal with matters of a transitional nature relating to the transition
from the application of provisions of the old access law or the Gas
Code to the application of provisions of the National Gas Law.
(2) Any provision of the regulations that deals with a matter of a
transitional nature under subsection (1) may be expressed to take
effect from a time that is earlier than the beginning of the day on
which the regulations containing the provision are made, not being
a time earlier than the commencement of this subsection.
(3) If a provision of a regulation is expressed to take effect from a time
that is earlier than the beginning of the day on which the
regulations containing the provision are made, the provision must
also provide that the provision does not operate so as--
(a) to prejudicially affect the rights of a person (other than
the rights of a Minister of a participating jurisdiction or
an entity involved in the administration of the old access
law, the Gas Code or the National Gas Law) existing
before the date of making of those regulations; or
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(b) to impose liabilities on any person (other than liabilities
imposed on a Minister of a participating jurisdiction or an
entity involved in the administration of the old access
law, the Gas Code or the National Gas Law) in respect of
anything done or omitted to be done before the date of
making of those regulations.
(4) In this section--
Gas Code means the National Third Party Access Code for Natural
Gas Pipelines Systems set out in Schedule 2 of the Gas Pipelines
Access (South Australia) Act 1997 as in force from time to time
before the commencement of this section;
matters of a transitional nature includes matters of an application
or savings nature;
National Gas Law means the National Gas Law set out in the
Schedule to this Act as in force from time to time after the
commencement of this section, or the Rules as in force from time to
time after the commencement of this section;
old access law means Schedule 1 to the Gas Pipelines Access
(South Australia) Act 1997 as in force from time to time before the
commencement of this section.
13--Making of rules
The Subordinate Legislation Act 1978 does not apply to Rules
made under the National Gas Law.
Part 4--Cross vesting of powers
14--Conferral of powers on Commonwealth Minister and
Commonwealth bodies to act in this State
(1) The Commonwealth Minister and the Commonwealth bodies have
power to do acts in or in relation to this State in the performance or
exercise of a function or power expressed to be conferred on them
respectively by the national gas legislation of another participating
jurisdiction.
(2) In this section--
Commonwealth bodies means any of the following:
(a) AER;
(b) NCC;
(c) the Tribunal.
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15--Conferral of powers on Ministers of participating States
and Territories to act in this State
The Minister of a participating jurisdiction has power to do acts in
or in relation to this State in the performance or exercise of a
function or power expressed to be conferred on the Minister by the
national gas legislation of another participating jurisdiction.
16--Conferral of functions or powers on State Minister
If the national gas legislation of another participating jurisdiction
confers a function or power on the Minister, the Minister--
(a) may perform that function or exercise that power; and
(b) may do all things necessary or convenient to be done in
connection with the performance or exercise of that
function or power.
Part 5--General
17--Exemption from taxes
(1) Any stamp duty or other tax imposed by or under a law of this State
is not payable in relation to--
(a) an exempt matter; or
(b) anything done (including, for example, a transaction
entered into or an instrument or document made,
executed, lodged or given) because of, or arising out of,
an exempt matter.
(2) In this section--
exempt matter means a transfer of assets or liabilities--
(a) that is made for the purpose of ensuring that a person
does not carry on a business of producing, purchasing or
selling natural gas or processable gas in breach of any
ring fencing requirements of any national gas legislation
or for the purpose of the separation of certain businesses
or business activities from other businesses or business
activities of a person as required by an AER ring fencing
determination; and
(b) that the Minister and the Treasurer declare from time to
time by notice in the Gazette to be an exempt matter for
the purposes of this section.
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18--Actions in relation to cross boundary pipelines
(1) If a pipeline is a cross boundary pipeline, any action taken under
the national gas legislation of a participating jurisdiction in whose
jurisdictional area a part of the pipeline is situated--
(a) by, or in relation to, a relevant Minister; or
(b) by the Court within the meaning of that legislation in
relation to action taken by, or in relation to, a relevant
Minister,
is taken also to be taken under the national gas legislation of each
participating jurisdiction in whose jurisdictional area a part of the
pipeline is situated (that other legislation)--
(c) by, or in relation to, a relevant Minister within the
meaning of that other legislation; or
(d) by the Court within the meaning of that other legislation,
as the case requires.
(2) Despite subsection (1), no proceeding for judicial review or for a
declaration, injunction, writ, order or remedy may be brought
before the Court to challenge or question any action, or purported
action, of a relevant Minister taken, or purportedly taken, in
relation to a cross boundary distribution pipeline unless this
jurisdiction has been determined to be the participating jurisdiction
with which the cross boundary distribution pipeline is most closely
connected.
(3) A reference in this section--
(a) to an action that is taken includes a reference to--
(i) a decision or determination that is made; or
(ii) an omission that is made;
(b) to a purported action that is purportedly taken includes a
reference to a purported decision or determination that is
purportedly made.
(4) In this section--
cross boundary pipeline means--
(a) a cross boundary transmission pipeline; or
(b) a cross boundary distribution pipeline.
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19--Conferral of functions and powers on Commonwealth
bodies
(1) Clause 2 of Schedule 2 to the National Gas (South Australia) Law
has effect in relation to the operation of any provision of this Act,
or any regulation made under this Act, as if the provision or
regulation formed part of the National Gas (South Australia) Law.
(2) Subsection (1) does not limit the effect that a provision or
regulation would validly have apart from the subsection.
Part 6--Repeal of Gas Pipelines Access (South
Australia) Act 1997
20--Repeal of Gas Pipelines Access (South Australia)
Act 1997
The Gas Pipelines Access (South Australia) Act 1997 is repealed.
Part 7--Amendment of this Act when Offshore
Petroleum Act 2006 commences
21--Amendment of this Act when Offshore Petroleum Act
2006 commences
(1) This Act is amended in the manner specified by subsection (2) (and
a reference in this section to a provision is a reference to a
provision of this Act).
(2) Section 9(1), definitions of adjacent area of another participating
jurisdiction and adjacent area of this jurisdiction--delete these
definitions and substitute:
adjacent area of another participating jurisdiction
means the offshore area of a State other than this State or
of the Northern Territory within the meaning given in
section 7 of the Offshore Petroleum Act 2006 of the
Commonwealth;
adjacent area of this jurisdiction means the offshore area
of the State within the meaning given in section 7 of the
Offshore Petroleum Act 2006 of the Commonwealth;
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Part 8--Amendment of Australian Energy Market
Commission Establishment Act 2004
22--Amendment of Australian Energy Market Commission
Establishment Act 2004
(1) The Australian Energy Market Commission Establishment
Act 2004 is amended in the manner specified by this section (and a
reference in this section to a provision is a reference to a provision
of that Act).
(2) Section 3(1), definitions of Gas Pipelines Access Application Act,
Gas Pipelines Access Law and Gas Pipelines Access
Regulations--delete the definitions
(3) Section 3(1), definition of National Energy Law, paragraphs (e)
to (h) (inclusive)--delete the paragraphs and substitute:
(e) a National Gas Application Act; or
(f) the National Gas Law; or
(g) the National Gas Regulations; or
(h) the National Gas Rules;
(4) Section 3(1), definitions of National Third Party Access Code for
Natural Gas Pipelines Systems and natural gas--delete the
definitions and substitute:
National Gas Application Act means--
(a) the National Gas (South Australia) Act 2008; or
(b) the Australian Energy Market Act 2004 of the
Commonwealth; or
(c) any other Act of a State or Territory of the
Commonwealth that applies the National Gas
Law set out in the Schedule to the National Gas
(South Australia) Act 2008, with or without
modification and whether as in force at a
particular time or as in force for the time being,
as a law of that jurisdiction;
National Gas Law means the National Gas Law set out in
the Schedule to the National Gas (South Australia)
Act 2008 applying as a law of South Australia or as
applied, with or without modification and whether as in
force at a particular time or as in force for the time being,
as a law of another jurisdiction;
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National Gas Regulations means regulations that, under
a National Gas Application Act, apply as regulations for
the purposes of a National Gas Law;
National Gas Rules means the National Gas Rules as
defined in section 2 of the National Gas Law;
natural gas has the same meaning as in the National Gas
Law;
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Schedule--National Gas Law
Chapter 1--Preliminary
Part 1--Citation and interpretation
1--Citation
This law may be cited as the National Gas Law.
2--Definitions
In this Law--
15-year no-coverage determination means a determination of a
relevant Minister under Chapter 5 Part 2;
ACCC means the Australian Competition and Consumer
Commission established by section 6A of the Trade Practices Act
1974 of the Commonwealth;
access arrangement means an arrangement setting out terms and
conditions about access to pipeline services provided or to be
provided by means of a pipeline;
access determination means a determination of the dispute
resolution body under Chapter 6 Part 3 and includes a
determination varied under Part 4 of that Chapter;
AEMC means the Australian Energy Market Commission
established by section 5 of the Australian Energy Market
Commission Establishment Act 2004 of South Australia;
AER means the Australian Energy Regulator established by
section 44AE of the Trade Practices Act 1974 of the
Commonwealth;
AER economic regulatory decision means a decision (however
described) of the AER under this Law or the Rules performing or
exercising an AER economic regulatory function or power;
AER economic regulatory function or power means a function or
power performed or exercised by the AER under this Law or the
Rules that relates to the economic regulation of pipeline services
provided by a service provider--
(a) by means of; or
(b) in connection with,
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a scheme pipeline and includes a function or power performed or
exercised by the AER under this Law or the Rules that relates to--
(c) the preparation of a service provider performance report;
(d) a ring fencing decision;
(e) an applicable access arrangement decision;
(f) an access determination (if the AER is the dispute
resolution body);
AER ring fencing determination means a determination of the
AER under section 143(1);
applicable access arrangement means a limited access
arrangement or full access arrangement that has taken effect after
being approved or made by the AER under the Rules and includes
an applicable access arrangement as varied--
(a) under the Rules; or
(b) by an access determination as provided by this Law or the
Rules;
applicable access arrangement decision means--
(a) a full access arrangement decision; or
(b) a limited access arrangement decision;
approved associate contract means an associate contract approved
by the AER under an associate contract decision;
associate in relation to a person has the same meaning it would
have under Division 2 of Part 1.2 of the Corporations Act 2001 of
the Commonwealth if sections 13, 16(2) and 17 did not form part of
that Act;
associate contract means--
(a) a contract, arrangement or understanding between a
service provider and an associate of the service provider
in connection with the provision of an associate pipeline
service; or
(b) a contract, arrangement or understanding between a
service provider and any person in connection with the
provision of an associate pipeline service--
(i) that provides a direct or indirect benefit to an
associate; and
(ii) that is not at arm's length;
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associate contract decision means a decision of the AER under the
Rules that approves or does not approve an associate contract for
the purposes of Chapter 4 Part 2 Division 5;
associate pipeline service means a pipeline service provided by
means of a pipeline other than a pipeline to which a 15-year no
coverage determination applies;
Bulletin Board information means information that--
(a) a person gives to the Bulletin Board operator to comply
with section 223(1); or
(b) a person gives to the Bulletin Board operator in
circumstances expressly permitted by the Rules;
Bulletin Board operator means the person prescribed by the
Regulations for the purposes of section 217;
charge, in relation to a pipeline service, means the amount that is
payable by a user to a service provider for the provision of the
pipeline service to that user;
civil penalty means--
(a) in the case of a breach of a civil penalty provision by a
natural person--
(i) an amount not exceeding $20 000; and
(ii) an amount not exceeding $2 000 for every day
during which the breach continues;
(b) in the case of a breach of a civil penalty provision by a
body corporate--
(i) an amount not exceeding $100 000; and
(ii) an amount not exceeding $10 000 for every day
during which the breach continues;
civil penalty provision has the meaning given by section 3;
classification decision under the Rules means a decision of the
NCC under the Rules that classifies either of the following
pipelines as a cross boundary transmission pipeline, cross boundary
distribution pipeline, transmission pipeline or a distribution
pipeline:
(a) a pipeline in respect of which a tender approval decision
becomes irrevocable by operation of the Rules;
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(b) a pipeline--
(i) by means of which a service provider intends to
provide pipeline services to which a full access
arrangement voluntarily submitted to the AER
for approval by that provider will apply, if
approved; and
(ii) in respect of which the NCC has not previously
made an initial classification decision;
commission, in relation to a pipeline, has the meaning given by
section 12;
Commonwealth Minister means the Minister of the
Commonwealth administering the Australian Energy Market Act
2004 of the Commonwealth;
conduct provision has the meaning given by section 4;
coverage determination means a determination of a relevant
Minister under Chapter 3 Part 1 Division 1;
coverage recommendation means a recommendation of the NCC
under Chapter 3 Part 1 Division 1;
coverage revocation determination means a determination of a
relevant Minister under Chapter 3 Part 1 Division 2;
coverage revocation recommendation means a recommendation of
the NCC under Chapter 3 Part 1 Division 2;
covered pipeline means a pipeline--
(a) to which a coverage determination applies; or
(b) deemed to be a covered pipeline by operation of
section 126 or 127;
covered pipeline service provider means a service provider that
provides or intends to provide pipeline services by means of a
covered pipeline;
cross boundary distribution pipeline means a distribution pipeline
that is partly situated in the jurisdictional areas of 2 or more
participating jurisdictions;
cross boundary transmission pipeline means a transmission
pipeline that is partly situated in the jurisdictional areas of 2 or
more participating jurisdictions;
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designated pipeline means a pipeline prescribed by the Regulations
to be a designated pipeline;
Note--
A light regulation determination cannot be made in respect of
pipeline services provided by means of a designated pipeline: see
sections 109 and 111.
developable capacity means the difference between the current
capacity of a covered pipeline and the capacity of a covered
pipeline which would be available if a new facility was constructed,
but does not include any new capacity of a covered pipeline
resulting from an extension to the geographic range of a covered
pipeline;
dispute resolution body means the AER;
distribution pipeline means a pipeline that is classified in
accordance with this Law or the Rules as a distribution pipeline and
includes any extension to, or expansion of the capacity of, such a
pipeline when it is a covered pipeline that, by operation of an
applicable access arrangement or under this Law, is to be treated as
part of the pipeline;
Note--
See also sections 18 and 19.
draft Rule determination means a determination of the AEMC
under section 308;
end user means a person who acquires natural gas or proposes to
acquire natural gas for consumption purposes;
ERA means the Economic Regulation Authority established by
section 4 of the Economic Regulation Authority Act 2003 of
Western Australia;
extension and expansion requirements means--
(a) the requirements contained in an access arrangement that,
in accordance with the Rules, specify--
(i) the circumstances when an extension to, or
expansion of the capacity of, a covered pipeline
is to be treated as forming part of the covered
pipeline; and
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(ii) whether the pipeline services provided or to be
provided by means of, or in connection with,
spare capacity arising out of an extension to, or
expansion of the capacity of, a covered pipeline
will be subject to the applicable access
arrangement applying to the pipeline services to
which that arrangement applies; and
(iii) whether an extension to, or expansion of the
capacity of, a covered pipeline will affect a
reference tariff, and if so, the effect on the
reference tariff; and
(b) any other requirements specified by the Rules as
extension and expansion requirements;
Note--
See also sections 18 and 19.
final Rule determination means a determination of the AEMC
under section 311;
foreign company has the same meaning as in the Corporations Act
2001 of the Commonwealth;
foreign source means--
(a) a source beyond the outer limits of all of the following:
(i) the adjacent area of this jurisdiction;
(ii) the adjacent area of another participating
jurisdiction; or
(b) a source within the joint petroleum development area
(within the meaning of the Petroleum (Timor Sea Treaty)
Act 2003 of the Commonwealth);
form of regulation factors has the meaning given by section 16;
full access arrangement means an access arrangement that--
(a) provides for price or revenue regulation as required by
the Rules; and
(b) deals with all other matters for which the Rules require
provision to be made in an access arrangement;
full access arrangement decision means a decision of the AER
under the Rules that--
(a) approves or does not approve a full access arrangement or
revisions to an applicable access arrangement submitted
to the AER under section 132 or the Rules; or
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(b) makes a full access arrangement--
(i) in place of a full access arrangement the AER
does not approve in that decision; or
(ii) because a service provider does not submit a
full access arrangement in accordance with
section 132 or the Rules;
(c) makes revisions to an access arrangement--
(i) in place of revisions submitted to the AER
under section 132 that the AER does not
approve in that decision; or
(ii) because a service provider does not submit
revisions to the AER under section 132;
Gas Code means the National Third Party Access Code for Natural
Gas Pipeline Systems set out in Schedule 2 to the Gas Pipelines
Access (South Australia) Act 1997 of South Australia as in force
from time to time before the commencement of section 20 of the
National Gas (South Australia) Act 2008 of South Australia;
gas market operator means VENCorp or any other person or body
prescribed by the Regulations to be a gas market operator;
general regulatory information order has the meaning given by
section 45;
greenfields pipeline incentive means--
(a) a 15-year no-coverage determination; or
(b) a price regulation exemption;
haulage, in relation to natural gas, includes conveyance or
reticulation of natural gas;
initial classification decision means a decision of the NCC under
section 98 or 155;
initial National Gas Rules means the National Gas Rules made
under section 294;
international pipeline means a pipeline for the haulage of gas from
a foreign source;
jurisdictional determination criteria, in relation to a cross
boundary distribution pipeline, has the meaning given by
section 14;
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jurisdictional gas legislation means an Act of a participating
jurisdiction (other than national gas legislation), or any instrument
made or issued under or for the purposes of that Act, that regulates
the haulage of gas in that jurisdiction;
light regulation determination means a determination of the NCC
under Chapter 3 Part 2 Division 1;
light regulation services means pipeline services to which a light
regulation determination applies;
limited access arrangement means an access arrangement that,
under this Law and the Rules, is not required to make provision for
price or revenue regulation but deals with the matters for which this
Law and the Rules require provision to be made in an access
arrangement;
limited access arrangement decision means a decision of the AER
under the Rules that approves or does not approve--
(a) a limited access arrangement submitted to the AER under
section 116 or 168; or
(b) revisions to a limited access arrangement submitted to the
AER under section 116(3) or 168(3) or the Rules;
MCE means the Ministerial Council on Energy established on
8 June 2001, being the Council of Ministers with primary carriage
of energy matters at a national level comprising the Ministers
representing the Commonwealth, the States, the Australian Capital
Territory and the Northern Territory, acting in accordance with its
own procedures;
MCE directed review means a review conducted by the AEMC
under Chapter 2 Part 2 Division 4;
MCE statement of policy principles means a statement of policy
principles issued by the MCE under section 25;
minimum ring fencing requirement means a requirement under
Chapter 4 Part 2 Division 2;
Minister of a participating jurisdiction means a Minister who is a
Minister of a participating jurisdiction within the meaning of
section 22;
Ministerial coverage decision means--
(a) a decision of a relevant Minister under section 99, 106 or
156; or
(b) a decision of the Commonwealth Minister under
section 164;
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national gas legislation means--
(a) the National Gas (South Australia) Act 2008 of South
Australia and Regulations in force under that Act; and
(b) the National Gas (South Australia) Law; and
(c) the National Gas Access (Western Australia) Act 2008 of
Western Australia; and
(d) the National Gas Access (Western Australia) Law (within
the meaning given in the National Gas Access (Western
Australia) Act 2008 of Western Australia; and
(e) Regulations made under the National Gas Access
(Western Australia) Act 2008 of Western Australia for the
purposes of the National Gas Access (Western Australia)
Law; and
(f) an Act of a participating jurisdiction (other than South
Australia or Western Australia) that applies, as a law of
that jurisdiction, any part of--
(i) the Regulations referred to in paragraph (a); or
(ii) the National Gas Law set out in the Schedule to
the National Gas (South Australia) Act 2008 of
South Australia; and
(g) the National Gas Law set out in the Schedule to the
National Gas (South Australia) Act 2008 of South
Australia as applied as a law of a participating
jurisdiction (other than South Australia or Western
Australia); and
(h) the Regulations referred to in paragraph (a) as applied as
a law of a participating jurisdiction (other than South
Australia or Western Australia);
national gas objective means the objective set out in section 23;
National Gas Rules or Rules means--
(a) the initial National Gas Rules; and
(b) Rules made by the AEMC under this Law, including
Rules that amend or revoke--
(i) the initial National Gas Rules; or
(ii) Rules made by it;
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natural gas means a substance that--
(a) is in a gaseous state at standard temperature and pressure;
and
(b) consists of naturally occurring hydrocarbons, or a
naturally occurring mixture of hydrocarbons and non-
hydrocarbons, the principal constituent of which is
methane; and
(c) is suitable for consumption;
natural gas service means--
(a) a pipeline service; or
(b) the supply of natural gas; or
(c) a service ancillary to the service described in
paragraph (b);
Natural Gas Services Bulletin Board means the website
maintained by the Bulletin Board operator that contains
information of the kind specified in the Rules in relation to natural
gas services;
NCC means the National Competition Council established by
section 29A of the Trade Practices Act 1974 of the
Commonwealth;
NCC recommendation or decision means--
(a) a coverage recommendation; or
(b) a coverage revocation recommendation; or
(c) a no-coverage recommendation; or
(d) a price regulation exemption recommendation; or
(e) a reclassification decision; or
(f) a light regulation determination; or
(g) a decision of the NCC under Chapter 3 Part 2 Division 2
to revoke a light regulation determination; or
(h) a decision of the NCC not to make a decision referred to
in paragraph (f) or (g); or
(i) advice under section 172;
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new facility means an extension to, or expansion of the capacity of,
a covered pipeline which is to be treated as part of the covered
pipeline--
(a) in accordance with the extension and expansion
requirements contained in an applicable access
arrangement applying to the pipeline services provided by
means of that covered pipeline; or
(b) under this Law;
Note--
See also sections 18 and 19.
no-coverage recommendation means a recommendation of the
NCC under Chapter 5 Part 2;
non scheme pipeline user means a person who--
(a) is a party to a contract with a service provider under
which the service provider provides or intends to provide
a pipeline service to that person by means of a pipeline
that is not a scheme pipeline; or
(b) has a right under an access determination to be provided
with a pipeline service by means of a pipeline that is not a
scheme pipeline;
offence provision means a provision of this Law the breach or
contravention of which by a person exposes that person to a finding
of guilt by a court;
officer has the same meaning as officer has in relation to a
corporation under section 9 of the Corporations Act 2001 of the
Commonwealth;
old access law means Schedule 1 to the Gas Pipelines Access
(South Australia) Act 1997 of South Australia as in force from time
to time before the commencement of section 20 of the National
Gas (South Australia) Act 2008 of South Australia;
old scheme classification or determination means a classification
or determination under section 10 or 11 of the old access law in
force at any time before the repeal of the old access law;
old scheme distribution pipeline means a pipeline that was, at any
time before the repeal of the old access law--
(a) a distribution pipeline as defined in that law; and
(b) a covered pipeline as defined in the Gas Code;
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old scheme transmission pipeline means a pipeline that was, at any
time before the repeal of the old access law--
(a) a transmission pipeline as defined in that law; and
(b) a covered pipeline as defined in the Gas Code;
participating jurisdiction means a jurisdiction that is a
participating jurisdiction by reason of section 21;
pipeline means--
(a) a pipe or system of pipes for the haulage of natural gas,
and any tanks, reservoirs, machinery or equipment
directly attached to that pipe or system of pipes; or
(b) a proposed pipe or system of pipes for the haulage of
natural gas, and any proposed tanks, reservoirs,
machinery or equipment proposed to be directly attached
to the proposed pipe or system of pipes; or
(c) a part of a pipe or system of pipes or proposed pipe or
system of pipes referred to in paragraph (a) or (b),
but does not include--
(d) unless paragraph (e) applies, anything upstream of a
prescribed exit flange on a pipeline conveying natural gas
from a prescribed gas processing plant; or
(e) if a connection point upstream of an exit flange on such a
pipeline is prescribed, anything upstream of that point; or
(f) a gathering system operated as part of an upstream
producing operation; or
(g) any tanks, reservoirs, machinery or equipment used to
remove or add components to or change natural gas
(other than odourisation facilities) such as a gas
processing plant; or
(h) anything downstream of a point on a pipeline from which
a person takes natural gas for consumption purposes;
pipeline classification criterion has the meaning given by
section 13;
pipeline coverage criteria has the meaning given by section 15;
pipeline reliability standard means a standard imposed by or under
an Act of a participating jurisdiction, or any instrument made or
issued under or for the purposes of that Act, relating to the reliable
haulage of natural gas in that jurisdiction;
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pipeline safety duty means a duty or requirement under an Act of a
participating jurisdiction, or any instrument made or issued under
or for the purposes of that Act, relating to--
(a) the safe haulage of natural gas in that jurisdiction; or
(b) the safe operation of a pipeline in that jurisdiction;
pipeline service means--
(a) a service provided by means of a pipeline, including--
(i) a haulage service (such as firm haulage,
interruptible haulage, spot haulage and
backhaul); and
(ii) a service providing for, or facilitating, the
interconnection of pipelines; and
(b) a service ancillary to the provision of a service referred to
in paragraph (a),
but does not include the production, sale or purchase of natural gas
or processable gas;
pipeline service standard means a standard relating to the standard
of the pipeline services provided by a service provider by means of
a covered pipeline imposed--
(a) by or under jurisdictional gas legislation; or
(b) by the AER--
(i) under an access arrangement decision; or
(ii) in accordance with the Rules;
price or revenue regulation means regulation of--
(a) the prices, charges or tariffs for pipeline services to be, or
that are to be, provided; or
(b) the revenue to be, or that is to be, derived from the
provision of pipeline services;
price regulation exemption means an exemption under Chapter 5
Part 3;
price regulation exemption recommendation means a
recommendation of the NCC under section 162;
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processable gas means a substance that--
(a) is in a gaseous state at standard temperature and pressure;
and
(b) consists of naturally occurring hydrocarbons, or a
naturally occurring mixture of hydrocarbons and non-
hydrocarbons, the principal constituent of which is
methane;
producer means a person who carries on a business of producing
natural gas;
prospective user has the meaning given by section 5;
queuing requirements means terms and conditions providing for
the priority that a prospective user has, as against any other
prospective user, to obtain access to spare capacity and developable
capacity;
reclassification decision means a decision of the NCC under
Chapter 3 Part 5;
reference service means a pipeline service specified by, or
determined or approved by the AER under, the Rules as a reference
service;
reference tariff means a tariff or charge for a reference service--
(a) specified in an applicable access arrangement approved
or made under a full access arrangement decision; or
(b) determined by applying the formula or methodology
contained in an applicable access arrangement approved
or made under a full access arrangement decision;
Regulations means the regulations made under Part 3 of the
National Gas (South Australia) Act 2008 of South Australia that
apply as a law of this jurisdiction;
regulatory information instrument means--
(a) a general regulatory information order; or
(b) a regulatory information notice;
regulatory information notice has the meaning given by
section 46;
regulatory obligation or requirement has the meaning given by
section 6;
regulatory payment has the meaning given by section 7;
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relevant Minister means if, in a coverage recommendation,
no-coverage recommendation, classification decision under the
Rules or reclassification decision, the NCC determines the pipeline
is--
(a) a cross boundary transmission pipeline--the
Commonwealth Minister;
(b) a transmission pipeline situated wholly within a
participating jurisdiction--the designated Minister;
Note--
The term designated Minister is defined in the Act of
this jurisdiction that applies this Law as a law of this
jurisdiction.
(c) a distribution pipeline situated wholly within a
participating jurisdiction--the Minister of the
participating jurisdiction;
(d) a cross boundary distribution pipeline--the Minister of
the participating jurisdiction determined by the NCC in
the recommendation as being the participating
jurisdiction with which the cross boundary distribution
pipeline is most closely connected;
relevant Regulator has the same meaning as in section 2 of the old
access law;
revenue and pricing principles means the principles set out in
section 24;
ring fencing decision means--
(a) an AER ring fencing determination; or
(b) a decision under section 146 granting or not granting an
exemption under that section; or
(c) an associate contract decision;
scheme pipeline means--
(a) a covered pipeline; or
(b) an international pipeline to which a price regulation
exemption applies;
service provider has the meaning given by section 8;
service provider performance report means a report prepared by
the AER under section 64;
spare capacity means unutilised capacity of a pipeline;
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storage provider means any person who owns, operates or controls
a facility for storing natural gas or processable gas for injection into
a pipeline;
supply includes--
(a) in relation to goods--supply (including re-supply) by
way of sale, exchange, lease, hire or hire purchase; and
(b) in relation to services--provide, grant or confer;
tariff means a rate by which a charge for a pipeline service is
calculated;
tender approval decision means a decision of the AER under the
Rules under which the AER approves a tender process for the
construction and operation of a pipeline as a competitive tender
process;
Territory means the Australian Capital Territory or the Northern
Territory;
transmission pipeline means a pipeline that is classified in
accordance with this Law or the Rules as a transmission pipeline
and includes any extension to, or expansion of the capacity of, such
a pipeline when it is a covered pipeline that, by operation of an
applicable access arrangement or under this Law, is to be treated as
part of the pipeline;
Note--
See also sections 18 and 19.
Tribunal means the Australian Competition Tribunal referred to in
the Trade Practices Act 1974 of the Commonwealth and includes a
member of the Tribunal or a Division of the Tribunal performing
functions of the Tribunal;
user means a person who--
(a) is a party to a contract with a service provider under
which the service provider provides or intends to provide
a pipeline service to that person by means of a scheme
pipeline; or
(b) has a right under an access determination to be provided
with a pipeline service by means of a scheme pipeline;
VENCorp means the Victorian Energy Networks Corporation
continued under Part 8 of the Gas Industry Act 2001 of Victoria.
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3--Meaning of civil penalty provision
A civil penalty provision is--
(a) a provision of this Law specified in an item in the Table
at the foot of this section; or
(b) a provision of this Law (other than an offence provision)
or the Rules that is prescribed by the Regulations to be a
civil penalty provision.
Table
Item Provision
1 Section 56
2 Section 57
3 Section 131
4 Section 133
5 Section 134
6 Section 135
7 Section 136
8 Section 139
9 Section 140
10 Section 141
11 Section 143(6)
12 Section 147
13 Section 148
14 Section 168
15 Section 169(3)
16 Section 170
17 Section 195
18 Section 223
19 Section 225
20 Section 227
21 Section 228
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4--Meaning of conduct provision
A conduct provision is--
(a) a provision of this Law specified in an item in the Table
at the foot of this section; or
(b) a provision of this Law (other than an offence provision)
or the Rules that is prescribed by the Regulations to be a
conduct provision.
Table
Item Provision
1 Section 133
2 Section 134
3 Section 135
4 Section 136
5 Section 147
6 Section 148
7 Section 170
5--Meaning of prospective user
(1) A prospective user is a person who seeks or wishes to be provided
with a pipeline service by means of a scheme pipeline.
(2) To avoid doubt, a user is also a prospective user if the user seeks or
wishes to be provided with a pipeline service by means of a scheme
pipeline other than a pipeline service already provided to them
under--
(a) a contract; or
(b) an access determination.
6--Meaning of regulatory obligation or requirement
(1) A regulatory obligation or requirement is--
(a) in relation to the provision of a pipeline service by a
service provider--
(i) a pipeline safety duty; or
(ii) a pipeline reliability standard; or
(iii) a pipeline service standard; or
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(b) an obligation or requirement under--
(i) this Law or the Rules; or
(ii) an Act of a participating jurisdiction, or any
instrument made or issued under or for the
purposes of that Act, that levies or imposes a
tax or other levy that is payable by a service
provider; or
(iii) an Act of a participating jurisdiction, or any
instrument made or issued under or for the
purposes of that Act, that regulates the use of
land in a participating jurisdiction by a service
provider; or
(iv) an Act of a participating jurisdiction or any
instrument made or issued under or for the
purposes of that Act that relates to the
protection of the environment; or
(v) an Act of a participating jurisdiction, or any
instrument made or issued under or for the
purposes of that Act (other than national gas
legislation or an Act of a participating
jurisdiction or an Act or instrument referred to
in subparagraphs (ii) to (iv)), that materially
affects the provision, by a service provider, of
pipeline services to which an applicable access
arrangement applies.
(2) A regulatory obligation or requirement does not include an
obligation or requirement to pay a fine, penalty or compensation--
(a) for a breach of--
(i) a pipeline safety duty; or
(ii) a pipeline reliability standard; or
(iii) a pipeline service standard; or
(b) under this Law or the Rules or an Act or an instrument
referred to in subsection (1)(b)(ii) to (v).
Note--
See also section 24(2)(b).
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7--Meaning of regulatory payment
A regulatory payment is a sum that a service provider had been
required or allowed to pay to a user or an end user for a breach of,
as the case requires--
(a) a pipeline reliability standard; or
(b) a pipeline service standard,
because it was efficient for the service provider (in terms of the
service provider's overall business) to pay that sum.
Note--
See also section 24(2)(b).
8--Meaning of service provider
(1) A service provider is a person who--
(a) owns, controls or operates; or
(b) intends to own, control or operate,
a pipeline or scheme pipeline, or any part of a pipeline or scheme
pipeline.
Note--
A service provider must not provide pipeline services by means of a
scheme pipeline unless the service provider is a legal entity of a
specified kind: See section 131, and section 169 where the scheme
pipeline is an international pipeline to which a price regulation
exemption applies.
(2) A gas market operator that controls or operates (without at the same
time owning)--
(a) a pipeline or scheme pipeline; or
(b) a part of a pipeline or scheme pipeline,
is not to be taken to be a service provider for the purposes of this
Law.
9--Passive owners of scheme pipelines deemed to provide or
intend to provide pipeline services
(1) This section applies to a person who owns a scheme pipeline but
does not provide or intend to provide pipeline services by means of
that pipeline.
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(2) The person is, for the purposes of this Law, deemed to provide or
intend to provide pipeline services by means of that pipeline even if
the person does not, in fact, do so.
10--Things done by 1 service provider to be treated as being
done by all of service provider group
(1) This section applies if--
(a) more than 1 service provider (a service provider group)
carries out a controlling pipeline activity in respect of a
pipeline (or a part of a pipeline); and
(b) under this Law or the Rules a service provider is required
or allowed to do a thing.
(2) A service provider of the service provider group (the complying
service provider) may do that thing on behalf of the other service
providers of the service provider group if the complying service
provider has the written permission of all of the service providers
of that group to do that thing on behalf of the service provider
group.
(3) Unless this Law or the Rules otherwise provide, on the doing of a
thing referred to in subsection (2) by a complying service provider,
the service providers of the service provider group on whose behalf
the complying service provider does that thing, must, for the
purposes of this Law and the Rules, each be taken to have done the
thing done by the complying service provider.
(4) This section does not apply to a thing required or allowed to be
done under section 131 or Chapter 4 Part 2.
(5) In this section--
controlling pipeline activity means own, control or operate.
11--Local agents of foreign service providers
(1) This section applies if--
(a) a service provider is a foreign company; and
(b) the service provider has, under the Corporations Act
2001 of the Commonwealth, appointed a local agent
within the meaning of that Act.
(2) The local agent--
(a) is answerable for the doing of all acts, matters and things
the service provider is required by or under this Law to
do; and
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(b) is personally liable to a penalty imposed on the service
provider for a breach of a provision of this Law or the
Rules if a court hearing the matter is satisfied that the
local agent should be so liable.
12--Commissioning of a pipeline
A pipeline is commissioned when the pipeline is first used for the
haulage of natural gas, on a commercial basis.
13--Pipeline classification criterion
(1) The pipeline classification criterion is whether the primary function
of the pipeline is to--
(a) reticulate gas within a market (which is the primary
function of a distribution pipeline); or
(b) convey gas to a market (which is the primary function of
a transmission pipeline).
(2) Without limiting subsection (1), in determining the primary
function of the pipeline, regard must also be had to whether the
characteristics of the pipeline are those of a transmission pipeline or
distribution pipeline having regard to--
(a) the characteristics and classification of, as the case
requires, an old scheme transmission pipeline or an old
scheme distribution pipeline;
(b) the characteristics of, as the case requires, a transmission
pipeline or a distribution pipeline classified under this
Law;
(c) the characteristics and classification of pipelines specified
in the Rules (if any);
(d) the diameter of the pipeline;
(e) the pressure at which the pipeline is or will be designed to
operate;
(f) the number of points at which gas can or will be injected
into the pipeline;
(g) the extent of the area served or to be served by the
pipeline;
(h) the pipeline's linear or dendritic configuration.
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14--Jurisdictional determination criteria--cross boundary
distribution pipelines
The pipeline jurisdictional determination criteria are--
(a) whether more gas is to be delivered by a cross boundary
distribution pipeline in the jurisdictional area of
1 participating jurisdiction than in the jurisdictional area
of any other participating jurisdiction;
(b) whether more customers to be served by a cross boundary
distribution pipeline are resident in the jurisdictional area
of 1 participating jurisdiction than in the jurisdictional
area of any other participating jurisdiction;
(c) whether more of the network for a cross boundary
distribution pipeline is in the jurisdictional area of
1 participating jurisdiction than in the jurisdictional area
of any other participating jurisdiction;
(d) whether 1 participating jurisdiction has greater prospects
for growth in the gas market served or to be served by a
cross boundary distribution pipeline than any other
participating jurisdiction;
(e) whether the regional economic benefits from competition
are likely to be greater for 1 participating jurisdiction than
for any other participating jurisdiction.
15--Pipeline coverage criteria
The pipeline coverage criteria are--
(a) that access (or increased access) to pipeline services
provided by means of the pipeline would promote a
material increase in competition in at least 1 market
(whether or not in Australia), other than the market for
the pipeline services provided by means of the pipeline;
(b) that it would be uneconomic for anyone to develop
another pipeline to provide the pipeline services provided
by means of the pipeline;
(c) that access (or increased access) to the pipeline services
provided by means of the pipeline can be provided
without undue risk to human health or safety;
(d) that access (or increased access) to the pipeline services
provided by means of the pipeline would not be contrary
to the public interest.
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16--Form of regulation factors
The form of regulation factors are--
(a) the presence and extent of any barriers to entry in a
market for pipeline services;
(b) the presence and extent of any network externalities (that
is, interdependencies) between a natural gas service
provided by a service provider and any other natural gas
service provided by the service provider;
(c) the presence and extent of any network externalities (that
is, interdependencies) between a natural gas service
provided by a service provider and any other service
provided by the service provider in any other market;
(d) the extent to which any market power possessed by a
service provider is, or is likely to be, mitigated by any
countervailing market power possessed by a user or
prospective user;
(e) the presence and extent of any substitute, and the
elasticity of demand, in a market for a pipeline service in
which a service provider provides that service;
(f) the presence and extent of any substitute for, and the
elasticity of demand in a market for, electricity or gas
(as the case may be);
(g) the extent to which there is information available to a
prospective user or user, and whether that information is
adequate, to enable the prospective user or user to
negotiate on an informed basis with a service provider for
the provision of a pipeline service to them by the service
provider.
17--Effect of separate and consolidated access
arrangements in certain cases
(1) This section applies despite anything to the contrary in this Law.
(2) If, under this Law and the Rules, separate access arrangements are
approved in an applicable access arrangement decision for pipeline
services provided, or to be provided, by means of different parts of
a covered pipeline, each part of the covered pipeline--
(a) by which pipeline services are provided; and
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(b) to which each separate applicable access arrangement
applies,
must to be taken to be a separate covered pipeline for the purposes
of this Law.
(3) If under this Law and the Rules, a single access arrangement is
approved in an applicable access arrangement decision for pipeline
services provided, or to be provided, by means of 2 or more
covered pipelines, those pipelines must be taken to be a single
covered pipeline for the purposes of this Law.
18--Certain extensions to, or expansion of the capacity of,
pipelines to be taken to be part of a covered pipeline
For the purposes of this Law--
(a) an extension to, or expansion of the capacity of, a
covered pipeline must be taken to be part of the covered
pipeline; and
(b) the pipeline as extended or expanded must be taken to be
a covered pipeline,
if, by operation of the extension and expansion requirements under
an applicable access arrangement, the applicable access
arrangement will apply to pipeline services provided by means of
the covered pipeline as extended or expanded.
19--Expansions of and extensions to covered pipeline by
which light regulation services are provided
For the purposes of this Law, an extension to, or expansion of the
capacity of, a covered pipeline by means of which light regulation
services (and in respect of which there is no limited access
arrangement) are provided, must be taken to be part of the covered
pipeline unless the AER determines otherwise in writing.
20--Interpretation generally
Schedule 2 to this Law applies to this Law, the Regulations and the
Rules and any other statutory instrument made under this Law.
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Part 2--Participating jurisdictions
21--Participating jurisdictions
The State of South Australia, the Commonwealth, each of the
States of New South Wales, Victoria, Queensland, Western
Australia and Tasmania, and the Australian Capital Territory and
the Northern Territory are participating jurisdictions for the
purposes of this Law.
22--Ministers of participating jurisdictions
The Ministers of the participating jurisdictions are--
(a) the Minister of the Crown in right of South Australia
administering Part 2 of the National Gas (South
Australia) Act 2008 of South Australia; and
(b) the Minister of the Crown in right of Western Australia
administering the National Gas Access (Western
Australia) Act 2008 of Western Australia; and
(c) the Minister of the Crown in right of the Commonwealth
administering the Australian Energy Market Act 2004 of
the Commonwealth; and
(d) the Ministers of the Crown in right of the other
participating jurisdictions administering the laws of those
jurisdictions that substantially correspond to Part 2 of the
National Gas (South Australia) Act 2008 of South
Australia.
Part 3--National gas objective and principles
Division 1--National gas objective
23--National gas objective
The objective of this Law is to promote efficient investment in, and
efficient operation and use of, natural gas services for the long term
interests of consumers of natural gas with respect to price, quality,
safety, reliability and security of supply of natural gas.
Division 2--Revenue and pricing principles
24--Revenue and pricing principles
(1) The revenue and pricing principles are the principles set out in
subsections (2) to (7).
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(2) A service provider should be provided with a reasonable
opportunity to recover at least the efficient costs the service
provider incurs in--
(a) providing reference services; and
(b) complying with a regulatory obligation or requirement or
making a regulatory payment.
(3) A service provider should be provided with effective incentives in
order to promote economic efficiency with respect to reference
services the service provider provides. The economic efficiency
that should be promoted includes--
(a) efficient investment in, or in connection with, a pipeline
with which the service provider provides reference
services; and
(b) the efficient provision of pipeline services; and
(c) the efficient use of the pipeline.
(4) Regard should be had to the capital base with respect to a pipeline
adopted--
(a) in any previous--
(i) full access arrangement decision; or
(ii) decision of a relevant Regulator under section 2
of the Gas Code;
(b) in the Rules.
(5) A reference tariff should allow for a return commensurate with the
regulatory and commercial risks involved in providing the
reference service to which that tariff relates.
(6) Regard should be had to the economic costs and risks of the
potential for under and over investment by a service provider in a
pipeline with which the service provider provides pipeline services.
(7) Regard should be had to the economic costs and risks of the
potential for under and over utilisation of a pipeline with which a
service provider provides pipeline services.
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Division 3--MCE policy principles
25--MCE statements of policy principles
(1) Subject to this section, the MCE may issue a statement of policy
principles in relation to any matters that are relevant to the exercise
and performance by the AEMC of its functions and powers in--
(a) making a Rule; or
(b) conducting a review under section 83.
(2) Before issuing a statement of policy principles, the MCE must be
satisfied that the statement is consistent with the national gas
objective.
(3) As soon as practicable after issuing a statement of policy principles,
the MCE must give a copy of the statement to the AEMC.
(4) The AEMC must publish the statement in the South Australian
Government Gazette and on its website as soon as practicable after
it is given a copy of the statement.
Part 4--Operation and effect of National Gas Rules
26--National Gas Rules to have force of law
The National Gas Rules have the force of law in this jurisdiction.
Chapter 2--Functions and powers of gas market
regulatory entities
Part 1--Functions and powers of the Australian
Energy Regulator
Division 1--General
27--Functions and powers of the AER
(1) The AER has the following functions and powers:
(a) to monitor compliance by persons with this Law, the
Regulations and the Rules, including compliance with an
applicable access arrangement, an access determination
and a ring fencing decision; and
(b) to investigate breaches or possible breaches of provisions
of this Law, the Regulations or the Rules, including
offences against this Law; and
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(c) to institute and conduct proceedings in relation to
breaches of provisions of this Law, the Regulations or the
Rules, including offences against this Law; and
(d) to institute and conduct appeals from decisions in
proceedings referred to in paragraph (c); and
(e) AER economic regulatory functions or powers; and
(f) to prepare and publish reports on the financial and
operational performance of service providers in providing
pipeline services by means of covered pipelines; and
(g) to approve compliance programs of service providers
relating to compliance by service providers with this Law
or the Rules; and
(h) any other functions and powers conferred on it under this
Law or the Rules.
(2) The AER has the power to do all things necessary or convenient to
be done for or in connection with the performance of its functions.
28--Manner in which AER must perform or exercise AER
economic regulatory functions or powers
(1) The AER must, in performing or exercising an AER economic
regulatory function or power, perform or exercise that function or
power in a manner that will or is likely to contribute to the
achievement of the national gas objective.
(2) In addition, the AER--
(a) must take into account the revenue and pricing
principles--
(i) when exercising a discretion in approving or
making those parts of an access arrangement
relating to a reference tariff; or
(ii) when making an access determination relating
to a rate or charge for a pipeline service; and
(b) may take into account the revenue and pricing principles
when performing or exercising any other AER economic
regulatory function or power, if the AER considers it
appropriate to do so.
(3) For the purposes of subsection (2)(a)(ii), a reference to a "reference
service" in the revenue and pricing principles must be read as a
reference to a "pipeline service".
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29--Delegations
Any delegation by the AER under section 44AAH of the Trade
Practices Act 1974 of the Commonwealth extends to, and has effect
for the purposes of, this Law, the Regulations and the Rules.
30--Confidentiality
Section 44AAF of the Trade Practices Act 1974 of the
Commonwealth has effect for the purposes of this Law, the
Regulations and the Rules as if it formed part of this Law.
Note--
See also Chapter 10 Part 2 Division 1.
Division 2--Search warrants
31--Definitions
In this Division--
authorised person means a person authorised under section 32;
relevant provision means a provision of this Law, the Regulations
or the Rules.
32--Authorised person
(1) The AER may, in writing, authorise a person that the AER
considers is suitably qualified or trained to be an authorised person
for the purposes of this Division.
(2) An authorised person must comply with any direction of the AER
in exercising powers or functions as an authorised person.
33--Identity cards
(1) The AER must issue an identity card to an authorised person.
(2) The identity card must contain the name, a recent photograph and
the signature of the authorised person.
(3) An authorised person must carry the identity card at all times when
exercising powers or performing functions as an authorised person.
(4) An authorised person must produce his or her identity card for
inspection--
(a) before exercising a power as an authorised person; or
(b) at any time during the exercise of a power as an
authorised person, if asked to do so.
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34--Return of identity cards
If a person to whom an identity card has been issued ceases to be an
authorised person, the person must return the identity card to the
AER as soon as practicable.
Maximum penalty: $500
35--Search warrant
(1) An authorised person may apply to a magistrate for the issue of a
search warrant in relation to a particular place if the person--
(a) believes on reasonable grounds that--
(i) there is or has been or will be a breach of a
relevant provision; and
(ii) there is or may be a thing or things of a
particular kind connected with that breach on or
in that place; or
(b) reasonably suspects that--
(i) there may have been a breach of a relevant
provision; and
(ii) there is or may be a thing or things of a
particular kind connected with that breach on or
in that place.
(2) If a magistrate is satisfied by the evidence, on oath or by affidavit,
of an authorised person that there are reasonable grounds for
suspecting that there is, or may be within the next 7 days, a thing or
things of a particular kind connected with a breach or possible
breach of a relevant provision on or in a place, the magistrate may
issue a search warrant authorising an authorised person named in
the warrant--
(a) to enter the place specified in the warrant, with such
assistance and by the use of such force as is necessary
and reasonable;
(b) to search the place or any part of the place;
(c) to search for and seize a thing named or described in the
warrant and which the person believes on reasonable
grounds to be connected with the breach or possible
breach of the relevant provision;
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(d) to inspect, examine or record an image of anything in the
place;
(e) to take extracts from, and make copies of, any documents
in the place;
(f) to take into the place such equipment and materials as the
person requires for exercising the powers.
(3) A search warrant issued under this section must state--
(a) the purpose for which the search is required and the
nature of the suspected breach of the relevant provision;
and
(b) any conditions to which the warrant is subject; and
(c) whether entry is authorised to be made at any time of the
day or night or during stated hours of the day or night;
and
(d) a day, not later than 7 days after the issue of the warrant,
on which the warrant ceases to have effect.
(4) Except as provided by this Law, the rules to be observed with
respect to search warrants mentioned in any relevant laws of this
jurisdiction extend and apply to warrants under this section.
36--Announcement of entry and details of warrant to be
given to occupier or other person at premises
(1) This section applies if the occupier or another person who
apparently represents the occupier is present at premises when a
search warrant is being executed.
(2) The authorised person executing the warrant must--
(a) identify himself or herself to that person; and
(b) announce that he or she is authorised by the warrant to
enter the place; and
(c) before using force to enter, give the person an
opportunity to allow entry; and
(d) give the person a copy of the warrant.
(3) The authorised person executing the warrant is not entitled to
exercise any powers under the warrant in relation to premises if the
authorised person does not comply with subsection (2).
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37--Immediate entry permitted in certain cases
An authorised person executing a warrant need not comply with
section 36 if he or she believes on reasonable grounds that
immediate entry to premises is required to ensure--
(a) the safety of any person; or
(b) that the effective execution of the search warrant is not
frustrated.
38--Copies of seized documents
(1) If an authorised person executing a warrant retains possession of a
document seized from a person in accordance with the warrant, the
authorised person must give that other person, within 21 days of the
seizure, a copy of the document certified as correct by the
authorised person executing the warrant.
(2) A copy of a document certified under subsection (1) shall be
received in all courts and all tribunals as evidence of equal validity
to the original.
39--Retention and return of seized documents or things
(1) If an authorised person executing a warrant seizes a document or
other thing in accordance with the warrant, the authorised person
must if he or she is not a person employed by the AER, give the
document or other thing seized to the AER.
(2) The AER must take reasonable steps to return the document or
thing to the person from whom it was seized if the reason for its
seizure no longer exists.
(3) If the document or thing seized has not been returned within
3 months after it was seized, the AER must take reasonable steps to
return it unless--
(a) proceedings for the purpose for which the document or
thing was retained have commenced within that 3 month
period and those proceedings (including any appeal) have
not been completed; or
(b) a magistrate makes an order under section 40 extending
the period during which the document or thing may be
retained.
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40--Extension of period of retention of documents or things
seized
(1) The AER may apply to a magistrate--
(a) within 3 months after a document or other thing was
seized in accordance with a warrant; or
(b) if an extension has been granted under this section, before
the end of the period of the extension,
for an extension of the period for which the AER may retain the
document or thing but so that the total period of retention does not
exceed 12 months.
(2) An application must be made before proceedings for the purpose
for which the document or thing was retained have been
commenced.
(3) A magistrate may order such an extension if he or she is satisfied
that--
(a) it is in the interests of justice; and
(b) the total period of retention does not exceed 12 months;
and
(c) retention of the document or other thing is necessary--
(i) for the purposes of an investigation into
whether a breach of a relevant provision has
occurred; or
(ii) to enable evidence of a breach of a relevant
provision to be obtained for the purposes of a
proceeding under this Law.
(4) If proceedings are commenced for the purpose for which the
document or thing was retained at any time before the expiry of the
period specified in an order under this section, the document or
thing may be retained until those proceedings (including any
appeal) have been completed despite those proceedings being
completed after the period specified in the order.
(5) At least 7 days prior to the hearing of an application under this
section by a magistrate, notice of the application must be sent to the
owner of the document or thing described in the application.
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41--Obstruction of persons authorised to enter
A person must not, without reasonable excuse, obstruct or hinder
an authorised person in the exercise of a power under a search
warrant under this Division.
Maximum penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
Division 3--General information gathering powers
42--Power to obtain information and documents in relation
to performance and exercise of functions and powers
(1) If the AER has reason to believe that a person is capable of
providing information or producing a document that the AER
requires for the performance or exercise of a function or power
conferred on it under this Law or the Rules, the AER may, by
notice in writing, serve on that person a notice (a relevant notice).
(2) A relevant notice may require the person to--
(a) provide to the AER, by writing signed by that person or,
in the case of a body corporate, by a competent officer of
the body corporate, within the time and in the manner
specified in the notice, any information of the kind
referred to in subsection (1); or
(b) produce to the AER, or to a person specified in the notice
acting on its behalf, in accordance with the notice, any
documents of the kind referred to in subsection (1).
(3) A person on whom a relevant notice is served must comply with
the relevant notice unless the person has a reasonable excuse.
Maximum penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
(4) A person must not, in purported compliance with a relevant notice,
provide information that the person knows is false or misleading in
a material particular.
Maximum penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
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(5) It is a reasonable excuse for the purposes of subsection (3) if the
person served the relevant notice is not capable of complying with
that notice.
(6) It is a reasonable excuse for a natural person to--
(a) fail to provide information of the kind referred to in
subsection (1) to the AER; or
(b) fail to produce a document of the kind referred to in
subsection (1) to the AER, or to a person specified in a
relevant notice acting on behalf of the AER,
if to do so might tend to incriminate the person, or make the person
liable to a criminal penalty, under a law of this jurisdiction or a law
of another participating jurisdiction.
(7) It is not a reasonable excuse for a person to--
(a) fail to provide information of the kind referred to in
subsection (1) to the AER; or
(b) fail to produce a document of the kind referred to in
subsection (1) to the AER, or to a person specified in a
relevant notice acting on behalf of the AER,
on the ground of any duty of confidence.
(8) This section does not require a person to--
(a) provide information that is the subject of legal
professional privilege; or
(b) produce a document the production of which would
disclose information that is the subject of legal
professional privilege.
(9) This section does not require a person to--
(a) provide information that would disclose the contents of a
document prepared for the purposes of a meeting of the
Cabinet or a committee of the Cabinet of the
Commonwealth or of a State or a Territory; or
(b) produce a document prepared for the purposes of a
meeting of the Cabinet or a committee of the Cabinet of
the Commonwealth or of a State or a Territory; or
(c) provide information, or produce a document, that would
disclose the deliberations of the Cabinet or a committee
of the Cabinet of the Commonwealth or of a State or a
Territory.
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(10) A person incurs, by complying with a relevant notice, no liability
for breach of contract, breach of confidence or any other civil
wrong.
Division 4--Regulatory information notices and general
regulatory information orders
Subdivision 1--Interpretation
43--Definitions
In this Division--
contributing service has the meaning given by section 44;
scheme pipeline service provider means--
(a) a covered pipeline service provider; or
(b) a service provider who provides or intends to provide
pipeline services by means of an international pipeline to
which a price regulation exemption applies;
related provider means a person who supplies a contributing
service to a scheme pipeline service provider.
44--Meaning of contributing service
(1) A contributing service is a service that the AER, in accordance with
this section, decides is a service that contributes in a material way
to the provision of a pipeline service by a scheme pipeline service
provider.
(2) In deciding whether a service is a service that contributes in a
material way to the provision of a pipeline service by a scheme
pipeline service provider, the AER must have regard to--
(a) the nature and kind of the service;
(b) when the service was first supplied;
(c) the nature and extent of the contribution of the service
relative to--
(i) the pipeline service; and
(ii) all other services supplied by the scheme
pipeline service provider;
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(d) whether the service was previously supplied--
(i) by the scheme pipeline service provider; or
(ii) directly or indirectly by an associate of the
scheme pipeline service provider;
(e) whether the service, together with other services,
contributes in a material way to the provision of pipeline
services;
(f) any other matter specified under the Rules.
45--Meaning of general regulatory information order
A general regulatory information order is an order made by the
AER in accordance with this Division that requires each scheme
pipeline service provider of a specified class, or each related
provider of a specified class, to do either or both of the following:
(a) provide to the AER the information specified in the order;
(b) prepare, maintain or keep information specified in the
notice in a manner and form specified in the order.
46--Meaning of regulatory information notice
A regulatory information notice is a notice prepared and served by
the AER in accordance with this Division that requires the scheme
pipeline service provider, or a related provider, named in the notice
to do either or both of the following:
(a) provide to the AER the information specified in the
notice;
(b) prepare, maintain or keep information specified in the
notice in a manner and form specified in the notice.
47--Division does not limit operation of information
gathering powers under Division 3
This Division does not limit the operation of Division 3.
Subdivision 2--Serving and making of regulatory
information instruments
48--Service and making of regulatory information
instrument
(1) Subject to this Division, the AER, if it considers it reasonably
necessary for the performance or exercise of its functions or powers
under this Law or the Rules, may--
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(a) serve a regulatory information notice on a scheme
pipeline service provider or a related provider; or
(b) make a general regulatory information order.
(2) In considering whether it is reasonably necessary to serve a
regulatory information notice, or make a general regulatory
information order, the AER must have regard to--
(a) the matter to be addressed by--
(i) the service of the regulatory information notice;
or
(ii) the making of the general regulatory
information order; and
(b) the likely costs that may be incurred by an efficient
scheme pipeline service provider or efficient related
provider in complying with the notice or order.
Note--
The AER must also exercise its powers under this section in a
manner that will or is likely to contribute to the achievement of the
national gas objective: see section 28.
(3) A regulatory information notice must not be served, or a general
regulatory information order must not be made, solely for the
purpose of--
(a) investigating breaches or possible breaches of provisions
of this Law, the Regulations or the Rules, including
offences against this Law; or
(b) instituting and conducting proceedings in relation to
breaches of provisions of this Law, the Regulations or the
Rules, including offences against this Law; or
(c) instituting and conducting appeals from decisions in
proceedings referred to in paragraph (b); or
(d) collecting information for the preparation of a service
provider performance report; or
(e) any application for review of a decision of the AER under
Chapter 8 Part 5.
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49--Additional matters to be considered for related
provider regulatory information instruments
(1) This section applies if the AER is intending to--
(a) serve a regulatory information notice on a related
provider; or
(b) make a general regulatory information order that will
apply to a class of related providers.
(2) In addition to the matters set out in section 48(2), the AER, in
considering whether it is reasonably necessary to serve the
regulatory information notice, or make the general regulatory
information order, must have regard to--
(a) whether the scheme pipeline service provider being
supplied a contributing service by the related provider or
related providers to which the intended regulatory
information instrument will apply can--
(i) provide the information to be specified in that
instrument; or
(ii) prepare, maintain or keep the information to be
specified in the particular manner and form to
be specified in that instrument; and
(b) the extent to which the related provider or related
providers to which the intended regulatory information
instrument will apply is, or are, supplying a contributing
service on a genuinely competitive basis; and
(c) the nature of any ownership or control between--
(i) the scheme pipeline service provider being
supplied a contributing service by a related
provider to which the intended regulatory
information instrument will apply; and
(ii) that related provider; and
(d) the nature of any ownership or control as between
different related providers supplying the contributing
service to the scheme pipeline service provider; and
(e) any other matter the AER considers relevant.
(3) For the purposes of subsection (2)(b), in considering whether a
contributing service is being supplied on a genuinely competitive
basis, the AER may take into account--
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(a) whether there is effective competition in the market for
the supply of the contributing service; and
(b) whether the related provider supplies the contributing
service to a scheme pipeline service provider under a
contract, arrangement or understanding entered into with
that scheme pipeline service provider following a
competitive process for the awarding of the right to enter
into that contract, arrangement or understanding
involving persons who were not associates of the scheme
pipeline service provider.
50--AER must consult before publishing a general
regulatory information order
The AER must, in accordance with the Rules, consult with the
public on the general regulatory information order it intends to
make before it makes that order.
Note--
See also section 65 about what the AER must and may do after receiving
submissions.
51--Publication requirements for general regulatory
information orders
(1) A general regulatory information order made under section 48(1)(b)
must be published on the AER's website as soon as practicable after
it is made.
(2) Notice of the making of a general regulatory information order
must be published in a newspaper circulating generally throughout
Australia as soon as practicable after it is made.
52--Opportunity to be heard before regulatory information
notice is served
(1) The AER, before serving a regulatory information notice, must--
(a) notify, in writing, the scheme pipeline service provider,
or the related provider, on whom the AER intends to
serve the regulatory information notice of its intention to
do so; and
(b) give the scheme pipeline service provider, or the related
provider, a draft of the regulatory information notice it
intends to serve.
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(2) If the regulatory information notice to be served is an urgent notice,
the AER must, in a notice under subsection (1)--
(a) identify the regulatory information notice to be served as
an urgent notice; and
(b) give its reasons, in writing, why the regulatory
information notice to be served is an urgent notice.
(3) A regulatory information notice is an urgent notice if--
(a) under the notice the AER will require the scheme pipeline
service provider or related provider to provide
information to the AER; and
(b) that requirement has arisen because the AER considers it
must deal with or address a particular matter or thing in
order for it to make an AER economic regulatory
decision; and
(c) the AER considers that, having regard to the time within
which it must make that AER economic regulatory
decision, the time within which the AER requires the
information is of the essence.
(4) A notice under subsection (1) must--
(a) invite the scheme pipeline service provider, or the related
provider, to make written representations to the AER as
to whether the AER should serve the regulatory
information notice on them; and
(b) specify the period within which the scheme pipeline
service provider, or the related provider, may make the
representations.
(5) The period that must be specified in accordance with subsection (4)
must be--
(a) in the case of an urgent notice to be served--a period of
not less than 5 business days and not more than 10
business days calculated from the date of the notice under
subsection (1);
(b) in all other cases--a period of at least 20 business days
calculated from the date of the notice under
subsection (1).
(6) The AER must consider the written representations made in
accordance with a notice under subsection (1) before making its
decision in accordance with this Division to serve the regulatory
information notice.
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Subdivision 3--Form and content of regulatory information
instruments
53--Form and content of regulatory information instrument
(1) A regulatory information instrument--
(a) must specify the information required to be--
(i) provided to the AER;
(ii) prepared, maintained or kept in the particular
manner and form specified in the instrument;
and
(b) may specify the manner and form in which the
information described in the instrument is required to
be--
(i) provided to the AER;
(ii) prepared, maintained or kept; and
(c) must state the reasons of the AER for requiring the
information described in the instrument to be--
(i) provided to the AER;
(ii) prepared, maintained or kept in the particular
manner and form specified in the instrument;
and
(d) in the case of an instrument requiring information to be
provided to the AER, must specify when the information
must be provided.
(2) In the case of a regulatory information notice, the notice must name
the scheme pipeline service provider or the related provider to
whom it applies.
(3) In the case of a general regulatory information order, the order must
specify the class of scheme pipeline service provider, or related
provider, to whom the order applies.
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54--Further provision about the information that may be
described in a regulatory information instrument
Without limiting section 53(1)(a), the information that may be
required to be provided to the AER, or to be prepared, maintained
or kept, may include--
(a) historic, current and forecast information (including
financial information);
(b) information that is or may be derived from other
information in the possession or control of the scheme
pipeline service provider or the related provider to whom
the instrument applies;
(c) information to enable the AER to verify whether the
scheme pipeline service provider to whom the instrument
applies is or has been complying with Chapter 4;
(d) information to enable the AER to verify compliance with
any requirements for the allocation of costs between
natural gas services under--
(i) the Rules; or
(ii) an applicable access arrangement.
55--Further provision about manner in which information
must be provided to AER or kept
Without limiting section 53(1)(b), a regulatory information
instrument may specify the information specified in the
instrument--
(a) be provided to the AER, or prepared, maintained or kept,
on an annual basis or some other basis, including on the
occurrence of a specified event or state of affairs;
(b) be provided to the AER, or prepared, maintained or kept,
in accordance with specified Rules;
(c) be provided to the AER, or prepared, maintained or kept,
in accordance with any document, code, standard, rule,
specification or method formulated, issued, prescribed or
published by the AER or any person, authority or body
whether--
(i) wholly or partially or as amended by the
instrument; or
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(ii) as formulated, issued, prescribed or published
at the time the instrument is served or published
or at any time before the instrument is served or
published; or
(iii) as amended from time to time;
Example--
The AER may require a scheme pipeline
service provider to provide information in a
form and manner that complies with relevant
accounting standards.
(d) be verified by way of statutory declaration by an officer
of the scheme pipeline service provider, or of a related
provider, to whom the instrument applies;
(e) be audited--
(i) by a class of person specified in the instrument
before it is provided to the AER; and
(ii) at the expense of the scheme pipeline service
provider or related provider to whom the
instrument applies.
Subdivision 4--Compliance with regulatory information
instruments
56--Compliance with regulatory information notice that is
served
On being served a regulatory information notice, a person named in
the notice must comply with the notice.
57--Compliance with general regulatory information order
(1) On publication of a general regulatory information order in
accordance with section 51(1), a person who is a member of the
class of person to which a general regulatory information order
applies must comply with the order.
(2) Subsection (1) does not apply to a person who has been given an
exemption under section 58.
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58--Exemptions from compliance with general regulatory
information order
(1) The AER may exempt a person, or a class of person, from
complying with section 57--
(a) unconditionally or on specified conditions; or
(b) wholly or to the extent as is specified in the exemption.
(2) An exemption under this section must be in writing.
59--Assumptions where there is non-compliance with
regulatory information instrument
(1) This section applies if--
(a) under a regulatory information instrument the AER--
(i) requires a scheme pipeline service provider to
provide information to the AER for the purpose
of enabling the AER to make an AER economic
regulatory decision relating to the scheme
pipeline service provider; or
(ii) requires a related provider to provide
information to the AER that is relevant to the
making of an AER economic regulatory
decision relating to a scheme pipeline service
provider; and
(b) the scheme pipeline service provider or related
provider--
(i) does not provide the information to the AER in
accordance with the applicable regulatory
information instrument; or
(ii) provides information that is insufficient (when
compared to what was requested under the
applicable regulatory information instrument).
(2) Without limiting sections 56 and 57 and despite anything to the
contrary in this Law or the Rules, the AER--
(a) may make the AER economic regulatory decision on the
basis of the information the AER has at the time it makes
that decision; and
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(b) in making that decision, may make reasonable
assumptions (including assumptions adverse to the
interests of the scheme pipeline service provider) in
respect of the matters the information required under the
regulatory information instrument would have addressed
had that information been provided as required.
Subdivision 5--General
60--Providing to AER false and misleading information
A person must not, in purported compliance with a regulatory
information instrument requiring the person to provide information
to the AER, provide information to the AER that the person knows
is false or misleading in a material particular.
Maximum penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
61--Person cannot rely on duty of confidence to avoid
compliance with regulatory information instrument
(1) A person must not refuse to comply with a regulatory information
instrument on the ground of any duty of confidence.
(2) A person incurs, by complying with a regulatory information
instrument, no liability for breach of contract, breach of confidence
or any other civil wrong.
62--Legal professional privilege not affected
A regulatory information instrument, and sections 56 and 57, are
not to be taken as requiring a person to--
(a) provide to the AER information that is the subject of
legal professional privilege; or
(b) produce a document to the AER the production of which
would disclose information that is the subject of legal
professional privilege.
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63--Protection against self-incrimination
(1) It is a reasonable excuse for a natural person to whom section 56
applies not to comply with a regulatory information notice served
on the person requiring the person to provide information to the
AER if to do so might tend to incriminate the person, or make the
person liable to a criminal penalty, under a law of this jurisdiction
or another participating jurisdiction.
(2) It is a reasonable excuse for a natural person to whom section 57
applies not to comply with a general regulatory information order
made requiring the person to provide information to the AER if to
do so might tend to incriminate the person, or make the person
liable to a criminal penalty, under a law of this jurisdiction or
another participating jurisdiction.
Division 5--Service provider performance reports
64--Preparation of service provider performance reports
(1) Subject to this section, the AER may prepare a report on the
financial performance or operational performance of 1 or more
scheme pipeline service providers in providing pipeline services by
means of a scheme pipeline.
Note--
The AER may only prepare a report under subsection (1) if the
preparation of the report will or is likely to contribute to the
achievement of the national gas objective: see section 28.
(2) A report prepared under this section may--
(a) deal with the financial or operational performance of the
scheme pipeline service provider in relation to--
(i) complying with pipeline service standards; and
(ii) standards relating to the provision of pipeline
services to users or end users; and
(iii) the profitability of scheme pipeline service
providers in providing pipeline services; and
(b) if the AER considers it appropriate, deal with the
performance of the scheme pipeline service provider in
relation to other matters or things if that performance is
directly related to the performance or exercise by the
AER of an AER economic regulatory function or power.
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(3) A report prepared under this section may include--
(a) information provided to the AER by a person in
compliance with a regulatory information instrument; and
(b) in the case of a report dealing with the financial
performance of 1 or more scheme pipeline service
providers, a comparison of the profitability of the scheme
pipeline service providers to which the report relates from
the provision of pipeline services by them.
(4) Before preparing a report under this section, the AER must, in
accordance with the Rules, consult with the persons or bodies
specified by the Rules.
(5) The AER may publish a report prepared under this section on its
website.
Division 6--Miscellaneous matters
65--Consideration by the AER of submissions or comments
made to it under this Law or the Rules
If, under this Law or the Rules, the AER publishes a notice inviting
submissions in relation to the making of an AER economic
regulatory decision, the AER, in making the decision--
(a) must consider every submission it receives within the
period specified in the notice; and
(b) may, but need not, consider a submission it receives after
the period specified in the notice expires.
66--Use of information provided under a notice under
Division 3 or a regulatory information instrument
The AER may use information provided to it by a person in
compliance with a notice under section 42 or a regulatory
information instrument for any purpose connected with the
performance or exercise of a function or power of the AER under
this Law or the Rules.
67--AER to inform certain persons of decisions not to
investigate breaches, institute proceedings or serve
infringement notices
(1) If the AER is given information by any person in relation to a
breach or a possible breach of this Law, the Regulations or the
Rules by a person but--
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(a) decides not to investigate that breach or possible breach;
or
(b) following an investigation, decides not to--
(i) institute any proceedings under Chapter 8 in
respect of that breach or possible breach; or
(ii) serve an infringement notice in accordance with
Chapter 8 Part 7 in respect of that breach or
possible breach,
the AER must notify that person of that decision in
writing.
(2) This section does not apply if the person gave the information to
the AER anonymously.
68--AER enforcement guidelines
(1) The AER may prepare guidelines about the matters it will have
regard to before--
(a) making an application under section 231; or
(b) serving an infringement notice under section 277.
(2) The AER must publish guidelines prepared under subsection (1) on
its website.
Part 2--Functions and powers of the Australian
Energy Market Commission
Division 1--General
69--Functions and powers of the AEMC
(1) The AEMC has the following functions and powers:
(a) the Rule making functions and powers conferred on it
under this Law and the Regulations;
(b) the market development functions conferred on it under
this Law and the Rules;
(c) any other functions and powers conferred on it under this
Law and the Rules.
(2) The AEMC has power to do all things necessary or convenient to
be done for or in connection with the performance of its functions.
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70--Delegations
Any delegation by the AEMC under section 20 of the Australian
Energy Market Commission Establishment Act 2004 of South
Australia extends to, and has effect for the purposes of, this Law,
the Regulations and the Rules.
71--Confidentiality
Section 24 of the Australian Energy Market Commission
Establishment Act 2004 of South Australia has effect for the
purposes of this Law, the Regulations and the Rules as if it formed
part of this Law.
Note--
See also Chapter 10 Part 2 Division 2.
72--AEMC must have regard to national gas objective
In performing or exercising any function or power under this Law,
the Regulations or the Rules, the AEMC must have regard to the
national gas objective.
73--AEMC must have regard to MCE statements of policy
principles in relation to Rule making and reviews
The AEMC must have regard to any relevant MCE statement of
policy principles--
(a) in making a Rule; or
(b) in conducting a review under section 83.
Division 2--Rule making functions and powers of the
AEMC
74--Subject matter for National Gas Rules
(1) Subject to this Division, the AEMC, in accordance with this Law
and the Regulations, may make Rules, to be known, collectively, as
the "National Gas Rules", for or with respect to--
(a) regulating--
(i) access to pipeline services;
(ii) the provision of pipeline services;
(iii) the collection, use, disclosure, copying,
recording, management and publication of
information in relation to natural gas services;
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(b) any matter or thing contemplated by this Law, or is
necessary or expedient for the purposes of this Law.
Note--
The procedure for the making of a Rule by the AEMC is set out in
Chapter 9 Part 3.
(2) Without limiting subsection (1), the AEMC, in accordance with this
Law and the Regulations, may make Rules for or with respect to
any matter or thing specified in Schedule 1 to this Law.
(3) Rules made by the AEMC in accordance with this Law and the
Regulations may--
(a) be of general or limited application;
(b) vary according to the persons, times, places or
circumstances to which they are expressed to apply;
(c) confer functions or powers on, or leave any matter or
thing to be decided or determined by--
(i) the AER, the AEMC or the Bulletin Board
operator; or
(ii) any panel or committee established by the
AEMC; or
(iii) any other body established, or person
appointed, in accordance with the Rules;
(d) confer rights or impose obligations on any person or a
class of person (other than the AER or the AEMC);
(e) confer a function on the AER, the AEMC or the Bulletin
Board operator to make or issue guidelines, tests,
standards, procedures or any other document (however
described) in accordance with the Rules, including
guidelines, tests, standards, procedures or any other
document (however described) that leave any matter or
thing to be determined by the AER, the AEMC or the
Bulletin Board operator;
(f) empower or require any person (other than a person
referred to in paragraph (e)) or body to make or issue
guidelines, tests, standards, procedures or any other
document (however described) in accordance with the
Rules;
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(g) apply, adopt or incorporate wholly or partially, or as
amended by the Rules, the provisions of any standard,
rule, specification, method or document (however
described) formulated, issued, prescribed or published by
any person, authority or body whether--
(i) as formulated, issued, prescribed or published
at the time the Rules are made or at any time
before the Rules are made; or
(ii) as amended from time to time;
(h) confer a power of direction on the AER, the AEMC or
the Bulletin Board operator to require a person conferred
a right, or on whom an obligation is imposed, under the
Rules to comply with--
(i) a guideline, test, standard, procedure or other
document (however described) referred to in
paragraph (e) or (f); or
(ii) a standard, rule, specification, method or
document (however described) referred to in
paragraph (g);
(i) if this section authorises or requires Rules that regulate
any matter or thing, prohibit that matter or thing or any
aspect of that matter of thing;
(j) provide for the review of, or a right of appeal against, a
decision or determination made under the Rules and for
that purpose, confer jurisdiction on the Court;
(k) require a form prescribed by or under the Rules, or
information or documents included in, attached to or
given with the form, to be verified by statutory
declaration;
(l) in a specified case or class of case, exempt a person or
body performing or exercising a function or power, or
conferred a right, or on whom an obligation is imposed,
under the Rules or a class of any such person or body
from complying with a provision, or a part of a provision,
of the Rules;
(m) provide for the modification or variation of a provision of
the Rules (with or without substitution of a provision of
the Rules or a part of a provision of the Rules) as it
applies to a person or body performing or exercising a
function or power, or conferred a right, or on whom an
obligation is imposed, under the Rules or a class of any
such person or body;
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(n) confer an immunity on, or limit the liability of, any
person or body performing or exercising a function or
power, or conferred a right, or on whom an obligation is
imposed under the Rules;
(o) contain provisions of a savings or transitional nature
consequent on the amendment or revocation of a Rule.
75--Rules relating to MCE or Ministers of participating
jurisdictions require MCE consent
The AEMC must not, without the consent of the MCE, make a
Rule that confers a right or function, or imposes an obligation, on
the MCE or a Minister of a participating jurisdiction.
Note--
The term function is defined in clause 10 of Schedule 2 to this Law to include
"duty".
76--AEMC must not make Rules that create criminal
offences or impose civil penalties for breaches
The AEMC must not make a Rule that--
(a) creates an offence for a breach of a provision of the
Rules; or
(b) provides for a criminal penalty or civil penalty for a
breach of a provision of the Rules.
77--Documents etc applied, adopted and incorporated by
Rules to be publicly available
(1) The AEMC must make publicly available--
(a) every standard, rule, specification, method or document
(however described) formulated, issued, prescribed or
published by any person, authority or body that is
applied, adopted or incorporated by a Rule; and
(b) if a standard, rule, specification, method or document
(however described) formulated, issued, prescribed or
published by any person, authority or body is applied,
adopted or incorporated by a Rule as amended from time
to time--any amendment to that standard, rule,
specification, method or document.
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(2) For the purposes of subsection (1), the AEMC makes a standard,
rule, specification, method or document (however described)
formulated, issued, prescribed or published by any person,
authority or body applied, adopted or incorporated by any Rule
publicly available if the AEMC--
(a) publishes the standard, rule, specification, method or
document on the AEMC's website; or
(b) specifies a place from which the standard, rule,
specification, method or document may be obtained or
purchased (as the case requires).
Division 3--Committees, panels and working groups of the
AEMC
78--Establishment of committees, panels and working
groups
The AEMC may establish committees, panels and working groups
to--
(a) provide advice on specified aspects of the AEMC's
functions; or
(b) undertake any other activity in relation to the AEMC's
functions as is specified by the AEMC.
Division 4--MCE directed reviews
79--MCE directions
(1) The MCE may give a written direction to the AEMC that the
AEMC conduct a review into--
(a) any matter relating to a market for gas (including services
provided in a market for gas); or
(b) any matter relating to access to pipelines or to pipeline
services provided by means of pipelines; or
(c) the operation and effectiveness of the Rules; or
(d) any matter relating to the Rules; or
(e) the effectiveness of competition in a market for gas for
the purpose of giving advice about whether to retain,
remove or reintroduce price controls on prices for retail
gas services.
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(2) A direction given to the AEMC under this section is binding on the
AEMC and must be complied with despite anything to the contrary
in the Rules.
(3) A direction given under this section must be published in the South
Australian Government Gazette.
(4) The AEMC must cause a direction given under this section to be
published on its website.
80--Terms of reference
(1) The terms of reference of a MCE directed review will be as
specified in the direction given by the MCE.
Example--
The terms of reference may require a MCE directed review to be
conducted--
(a) about a specific matter within a specified time; or
(b) whenever a specified event occurs; or
(c) on an annual basis.
(2) Without limiting subsection (1), the MCE may in its direction to
the AEMC do 1 or more of the following:
(a) require the AEMC to give a report on a MCE directed
review to the MCE within a specified period;
(b) require the AEMC to make the report on a MCE directed
review publicly available or available to specified persons
or bodies;
(c) require the AEMC to make a draft report publicly
available or available to specified persons or bodies
during a MCE directed review;
(d) require the AEMC to consider specified matters in the
conduct of a MCE directed review;
(e) require the AEMC to have specified objectives in the
conduct of a MCE directed review which need not be
limited by the national gas objective;
(f) require the AEMC to assess a particular matter in relation
to services provided in a market for gas against specified
criteria or a specified methodology;
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(g) require the AEMC--
(i) to assess a particular matter in relation to
services provided in a market for gas; and
(ii) to develop appropriate and relevant criteria, or
an appropriate and relevant methodology, for
the purpose of the required assessment;
(h) give the AEMC other specific directions in respect of the
conduct of a MCE directed review.
81--Notice of MCE directed review
(1) The AEMC must publish notice of a MCE directed review on its
website and in a newspaper circulating generally throughout
Australia.
(2) The AEMC must publish a further such notice if a term of reference
or a requirement or direction relating to the MCE directed review is
varied.
82--Conduct of MCE directed review
Subject to any requirement or direction of the MCE, a MCE
directed review--
(a) may be conducted in such manner as the AEMC
considers appropriate; and
(b) may (but need not) involve public hearings.
Division 5--Other reviews
83--Rule reviews by the AEMC
(1) The AEMC may conduct a review into--
(a) the operation and effectiveness of the Rules; or
(b) any matter relating to the Rules.
(2) A review--
(a) may be conducted in such manner as the AEMC
considers appropriate; and
(b) may (but need not) involve public hearings.
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(3) During the course of a review, the AEMC may--
(a) consult with any person or body that it considers
appropriate;
(b) establish working groups to assist it in relation to any
aspect, or any matter or thing that is the subject of, the
review;
(c) commission reports by other persons on its behalf on any
aspect, or matter or thing that is the subject of, the
review;
(d) publish discussion papers or draft reports.
(4) At the completion of a review, the AEMC must--
(a) give a copy of the report to the MCE; and
(b) publish a report or a version of a report from which
confidential information has been omitted in accordance
with section 331.
Division 6--Miscellaneous matters
84--AEMC must publish and make available up to date
versions of Rules
The AEMC must, at all times--
(a) maintain, on its website, a copy of the National Gas
Rules, as in force from time to time; and
(b) make copies of the National Gas Rules, as in force from
time to time, available to the public for inspection at its
offices during business hours.
85--Fees
(1) The AEMC may charge a fee specified, or a fee calculated in
accordance with a formula or methodology specified, in the
Regulations for services provided by it in performing or exercising
any of its functions or powers under this Law, the Regulations or
the Rules.
(2) The fee must not be such as to amount to taxation.
86--Immunity from personal liability of AEMC officials
(1) No personal liability attaches to an AEMC official for an act or
omission in good faith in the performance or exercise, or purported
performance or exercise of a function or power under this Law, the
Regulations or the Rules.
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(2) A liability that would, but for subsection (1), lie against an AEMC
official lies instead against the AEMC.
(3) In this section--
AEMC official means--
(a) a member of the AEMC;
(b) the chief executive of the AEMC;
(c) a member of staff appointed by the AEMC.
Part 3--Functions and powers of Ministers of
participating jurisdictions
87--Functions and powers of Minister of this participating
jurisdiction under this Law
(1) The Minister of this participating jurisdiction has the functions and
powers conferred on him or her under this Law, the Regulations or
the Rules.
(2) The Minister of this participating jurisdiction has power to do all
things necessary or convenient to be done for or in connection with
the performance of his or her functions.
(3) In this section--
Minister of this participating jurisdiction means the Minister that
administers the Act of this jurisdiction that applies this Law as a
law of this jurisdiction.
88--Functions and powers of Commonwealth Minister
under this Law
(1) The Commonwealth Minister has the functions and powers
conferred on him or her under this Law, the Regulations or the
Rules.
(2) The Commonwealth Minister has power to do all things necessary
or convenient to be done for or in connection with the performance
of his or her functions.
Part 4--Functions and powers of the NCC
89--Functions and powers of NCC under this Law
(1) The NCC has the functions and powers conferred on it under this
Law, the Regulations or the Rules.
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(2) The NCC has power to do all things necessary or convenient to be
done for or in connection with the performance of its functions.
90--Confidentiality
(1) The NCC must take all reasonable measures to protect from
unauthorised use or disclosure information given to it in confidence
in, or in connection with, the performance of its functions or the
exercise of its powers under this Law, the Regulations or the Rules.
(2) For the purposes of subsection (1), the disclosure of information as
required or permitted by this Law, a law of the Commonwealth, a
State or Territory is taken to be authorised use and disclosure of the
information.
(3) Disclosing information to 1 of the following is authorised use and
disclosure of the information:
(a) the ACCC;
(b) the AER;
(c) the ERA;
(d) the AEMC;
(e) any staff or consultant assisting a body mentioned in
paragraph (a) to (d) in performing its functions or
exercising its powers;
(f) any other person or body prescribed by the Regulations
for the purpose of this paragraph.
(4) A person or body to whom information is disclosed under
subsection (3) may use the information for any purpose connected
with the performance of the functions, or the exercise of the
powers, of the person or body.
(5) The NCC may impose conditions to be complied with in relation to
information disclosed under subsection (3).
(6) For the purposes of subsection (1), the use or disclosure of
information by a person for the purposes of performing the
person's functions, or exercising the person's powers, as--
(a) a Councillor or a person referred to in section 29M of the
Trade Practices Act 1974 of the Commonwealth; or
(b) a person who is authorised to perform or exercise a
function or power of, or on behalf of, the NCC,
is taken to be authorised use and disclosure of the information.
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(7) Regulations made for the purposes of this section may specify uses
of information and disclosures of information that are authorised
uses and authorised disclosures for the purposes of this section.
(8) Nothing in any of the above subsections limits--
(a) anything else in any of those subsections; or
(b) what may otherwise constitute, for the purposes of
subsection (1), authorised use or disclosure of
information.
(9) In this section--
Councillor has the same meaning as in the Trade Practices Act
1974 of the Commonwealth.
Note--
See also Chapter 10 Part 2 Division 2.
Part 5--Functions and powers of Tribunal
91--Functions and powers of Tribunal under this Law
(1) The Tribunal has the functions and powers conferred on it under
Chapter 8 Part 5 and any Regulations made for the purposes of that
Division.
(2) The Tribunal has power to do all things necessary or convenient to
be done for or in connection with the performance of its functions.
Chapter 3--Coverage and classification of pipelines
Part 1--Coverage of pipelines
Division 1--Coverage determinations
92--Application for recommendation that a pipeline be a
covered pipeline
(1) Any person may apply for a determination that a pipeline be a
covered pipeline (a coverage determination).
(2) An application for a coverage determination--
(a) is to be made to the NCC in accordance with the Rules;
and
(b) must contain the information required by the Rules; and
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(c) must be accompanied by the fee prescribed by the
Regulations (if any).
93--Application to be dealt with in accordance with the
Rules
Subject to section 94, on receiving an application under section 92
the NCC must deal with it in accordance with the Rules.
94--NCC may defer consideration of application in certain
cases
(1) This section applies if an application under section 92 is made in
relation to a proposed pipeline after--
(a) an application has been made to the AER under the Rules
for the approval, by the AER, of the tender process for
the construction and operation of the proposed pipeline as
a competitive tender process; or
(b) a tender approval decision has been made in respect of
the tender process for the construction and operation of
the proposed pipeline.
(2) The NCC may defer consideration of whether to make a
recommendation in respect of the application until--
(a) the application for the approval, by the AER, of the
tender process for the construction and operation of the
proposed pipeline as a competitive tender process has
been rejected by the AER under the Rules; or
(b) the tender approval decision--
(i) has been revoked under the Rules; or
(ii) has lapsed as provided under the Rules.
95--NCC coverage recommendation
(1) Subject to sections 94 and 96, the NCC must recommend to the
relevant Minister that the pipeline the subject of the application--
(a) be a covered pipeline; or
(b) not be a covered pipeline.
Note--
See also Chapter 3 Part 2 Division 1 Subdivision 1.
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(2) A recommendation under this section must--
(a) be made in accordance with this Law and the Rules; and
(b) be made within the time specified by the Rules; and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the Rules.
(3) A recommendation under this section may recommend an outcome
different from the outcome sought in the application under
section 92.
Example--
An applicant may apply for a determination that the whole of a
pipeline be a covered pipeline. The NCC may recommend that only
a part of the pipeline the subject of the application be covered or
may recommend that the pipeline not be covered.
(4) A recommendation under this section must be delivered to the
relevant Minister without delay.
96--NCC must not make coverage recommendation if
tender approval decision becomes irrevocable
Despite anything to the contrary in this Division, the NCC--
(a) must not make a recommendation under section 95 if the
pipeline is the subject of a tender approval decision
that--
(i) has not lapsed as provided under the Rules; or
(ii) is not revoked under the Rules; and
(b) must, for the purposes of paragraph (a), treat the
application as having never been made.
97--Principles governing the making of a coverage
recommendation
(1) In making a coverage recommendation, the NCC--
(a) must give effect to the pipeline coverage criteria; and
(b) in deciding whether or not the pipeline coverage criteria
are satisfied must have regard to the national gas
objective.
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(2) The NCC gives effect to the pipeline coverage criteria as follows:
(a) if the NCC is satisfied that all the pipeline coverage
criteria are satisfied in relation to the pipeline--the
recommendation must be in favour of the pipeline being a
covered pipeline;
(b) if the NCC is not satisfied that all the pipeline coverage
criteria are satisfied in relation to the pipeline--the
recommendation must be against the pipeline being a
covered pipeline.
98--Initial classification decision to be made as part of
recommendation
(1) The NCC must, as part of a coverage recommendation, classify the
pipeline the subject of an application under section 92 as a
transmission pipeline or a distribution pipeline (an initial
classification decision). In doing so, the NCC must apply the
pipeline classification criterion.
(2) The NCC must as part of an initial classification decision--
(a) if it classifies the pipeline the subject of the application as
a transmission pipeline--determine whether the
transmission pipeline is also a cross boundary
transmission pipeline;
(b) if it classifies the pipeline the subject of the application as
a distribution pipeline--determine whether the
distribution pipeline is also a cross boundary distribution
pipeline.
(3) The NCC must also determine, as part of an initial classification
decision, the participating jurisdiction with which the pipeline the
subject of the application under section 92 is most closely
connected if the NCC determines the pipeline is also a cross
boundary distribution pipeline. In doing so, the NCC must apply
the pipeline classification criterion.
99--Relevant Minister's determination on application
(1) On receiving a coverage recommendation, the relevant Minister
must decide whether to make a coverage determination in respect
of the pipeline to which the recommendation relates.
(2) The relevant Minister must use his or her best endeavours to make
the decision within 20 business days after receiving the coverage
recommendation.
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(3) If the relevant Minister is unable to make the decision within the
period specified under subsection (2), he or she must make the
decision as soon as reasonably practicable after the end of the
specified period.
(4) The relevant Minister, for the purpose of making the decision, may
request submissions or comments in relation to an application
under section 92.
(5) A coverage determination or a decision not to make a coverage
determination must--
(a) be made in accordance with this Law and the Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
(6) In the case of a coverage determination, the determination must
specify the date the determination takes effect.
(7) A coverage determination may have an outcome different to the
outcome--
(a) sought in the application under section 92; or
(b) of the coverage recommendation.
Example--
An applicant may apply for a determination that the whole of a
pipeline be a covered pipeline. The NCC may recommend that only
a part of the pipeline the subject of the application be covered. The
relevant Minister may determine that different parts of the pipeline
to those recommended by the NCC be covered.
100--Principles governing the making of a coverage
determination or decision not to do so
(1) In deciding whether to make a coverage determination under this
Division, the relevant Minister--
(a) must give effect to the pipeline coverage criteria; and
(b) in deciding whether or not the pipeline coverage criteria
are satisfied in relation to the pipeline--
(i) must have regard to the national gas objective;
and
(ii) must have regard to the coverage
recommendation; and
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(iii) must take into account any submissions or
comments he or she receives on a request under
section 99(4); and
(iv) may take into account any relevant submissions
and comments made to the NCC by the public
under the Rules in relation to the application.
(2) The relevant Minister gives effect to the pipeline coverage criteria
as follows:
(a) if the relevant Minister is satisfied that all the pipeline
coverage criteria are satisfied in relation to the pipeline--
the Minister must make a coverage determination;
(b) if the relevant Minister is not satisfied that all the pipeline
coverage criteria are satisfied in relation to the pipeline--
the Minister must not make a coverage determination.
101--Operation and effect of coverage determination
The pipeline the subject of a coverage determination becomes a
covered pipeline--
(a) when the coverage determination takes effect; and
(b) continues to be a covered pipeline while the coverage
determination remains in effect.
Division 2--Coverage revocation determinations
102--Application for a determination that a pipeline no
longer be a covered pipeline
(1) Any person may apply for a determination that a covered pipeline
no longer be a covered pipeline (a coverage revocation
determination).
(2) An application for a coverage revocation determination--
(a) is to be made to the NCC in accordance with the Rules;
and
(b) must contain the information required by the Rules; and
(c) must be accompanied by the fee prescribed by the
Regulations (if any).
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103--Application to be dealt with in accordance with the
Rules
On receiving an application under section 102, the NCC must deal
with it in accordance with the Rules.
104--NCC coverage revocation recommendation
(1) The NCC must make a recommendation to the relevant Minister as
to whether the covered pipeline the subject of the application
should continue to be a covered pipeline.
Note--
See also section 119.
(2) A recommendation under this section must--
(a) be made in accordance with this Law and the Rules; and
(b) be made within the time specified by the Rules; and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the Rules.
(3) A recommendation under this section may recommend an outcome
different from the outcome sought in the application under
section 102.
Example--
A service provider may apply for a determination that revokes the
coverage of the covered pipeline by means of which the provider
provides pipeline services. The NCC may recommend that the
coverage of the covered pipeline be only partly revoked or not be
revoked.
(4) A recommendation under this section must be delivered to the
relevant Minister without delay.
105--Principles governing the making of a coverage
revocation recommendation
(1) In making a coverage revocation recommendation, the NCC--
(a) must give effect to the pipeline coverage criteria; and
(b) in deciding whether or not the pipeline coverage criteria
are satisfied must have regard to the national gas
objective.
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(2) The NCC gives effect to the pipeline coverage criteria as follows:
(a) if the NCC is satisfied that all the pipeline coverage
criteria are satisfied in relation to the pipeline--the
recommendation must be in favour of the pipeline
continuing to be a covered pipeline;
(b) if the NCC is not satisfied that all the pipeline coverage
criteria are satisfied in relation to the pipeline--the
recommendation must be in favour of the pipeline no
longer being a covered pipeline.
106--Relevant Minister's determination on application
(1) On receiving a coverage revocation recommendation, the relevant
Minister must decide whether to make a coverage revocation
determination in respect of the pipeline to which the
recommendation relates.
(2) The relevant Minister must use his or her best endeavours to make
the decision within 20 business days after receiving the coverage
revocation recommendation.
(3) If the relevant Minister is unable to make the decision within the
period specified under subsection (2), he or she must make the
decision as soon as reasonably practicable after the end of the
specified period.
(4) The relevant Minister, for the purpose of making the decision, may
request submissions or comments in relation to an application
under section 102.
(5) A coverage revocation determination or a decision not to make a
coverage revocation determination must--
(a) be made in accordance with this Law and the Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
(6) In the case of a coverage revocation determination, the
determination must specify the date the determination takes effect.
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(7) A coverage revocation determination may have an outcome
different to the outcome--
(a) sought in the application under section 102; or
(b) of the coverage revocation recommendation.
Example--
A service provider may apply for a determination that revokes the
coverage of the covered pipeline by means of which the provider
provides pipeline services. The NCC may recommend that the
coverage of the covered pipeline be only partly revoked. The
relevant Minister may make a determination that revokes coverage
of different parts of the covered pipeline to those parts in relation to
which the NCC recommended coverage be revoked.
107--Principles governing the making of a coverage
revocation determination or decision not to do so
(1) In deciding whether to make a coverage revocation determination
under this Division, the relevant Minister--
(a) must give effect to the pipeline coverage criteria; and
(b) in deciding whether or not the pipeline coverage criteria
are satisfied in relation to the pipeline--
(i) must have regard to the national gas objective;
and
(ii) must have regard to the coverage revocation
recommendation; and
(iii) must take into account any submissions or
comments he or she receives on a request under
section 106(4); and
(iv) may take into account any relevant submissions
and comments made to the NCC by the public
under the Rules in relation to the application.
(2) The relevant Minister gives effect to the pipeline coverage criteria
as follows:
(a) if the relevant Minister is satisfied that all the pipeline
coverage criteria are satisfied in relation to the pipeline--
the Minister must not make a coverage revocation
determination;
(b) if the relevant Minister is not satisfied that all the pipeline
coverage criteria are satisfied in relation to the pipeline--
the Minister must make a coverage revocation
determination.
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108--Operation and effect of coverage revocation
determination
The pipeline the subject of a coverage revocation determination
ceases to be a covered pipeline when the coverage revocation
determination takes effect.
Part 2--Light regulation of covered pipeline
services
Division 1--Making of light regulation determinations
Subdivision 1--Decisions when pipeline is not a covered
pipeline
109--Application of Subdivision
This Subdivision applies if--
(a) an application has been made under section 92 for a
coverage determination; and
(b) the pipeline the subject of the application is not a
designated pipeline.
110--NCC's decision on light regulation of pipeline services
(1) The NCC must decide whether to make a determination that the
pipeline services provided or to be provided by means of the
pipeline are light regulation services (a light regulation
determination).
(2) The NCC must make its decision under subsection (1)--
(a) at the same time as it makes the coverage
recommendation; and
(b) within the time it must make the coverage
recommendation.
(3) A light regulation determination or a decision not to make a light
regulation determination must--
(a) be made in accordance with this Law and the Rules; and
Note--
For example, see section 122.
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(b) be attached to the coverage recommendation; and
(c) contain the information required by the Rules.
Note--
If the NCC makes a light regulation determination, and the relevant Minister
makes the coverage determination, the service provider may submit a limited
access arrangement in respect of the light regulation services to the AER for
approval: see section 116.
Subdivision 2--Decisions when pipeline is a covered pipeline
111--Application of Subdivision
This Subdivision applies if a service provider provides pipelines
services--
(a) by means of a covered pipeline that is not a designated
pipeline; and
(b) to which an applicable access arrangement approved or
made under a full access arrangement decision applies.
112--Application
(1) A service provider may apply to the NCC for a determination that
pipeline services provided by the service provider by means of a
covered pipeline be light regulation services (a light regulation
determination).
(2) An application must--
(a) be in accordance with the Rules; and
(b) contain the information required by the Rules.
(3) An application may only be made in respect of all of the pipeline
services provided by means of the covered pipeline.
113--Application to be dealt with in accordance with the
Rules
On receiving an application under section 112, the NCC must deal
with it in accordance with the Rules.
114--NCC's decision on light regulation of pipeline services
(1) The NCC must decide whether to make a light regulation
determination within--
(a) 4 months after receiving an application under
section 112; or
(b) if the Rules specify a later period, that period.
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(2) A light regulation determination or a decision not to make a light
regulation determination must--
(a) be made in accordance with this Law and the Rules; and
Note--
For example, see section 122.
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
Note--
If the NCC makes a light regulation determination, the service provider may
submit a limited access arrangement in respect of the light regulation services
to the AER for approval: see section 116.
Subdivision 3--Operation and effect of light regulation
determinations
115--When light regulation determinations take effect
(1) A light regulation determination takes effect--
(a) in the case of a light regulation determination made under
Subdivision 1--on the day the relevant coverage
determination takes effect;
(b) in the case of a light regulation determination made under
Subdivision 2--60 business days after the light regulation
determination is made.
(2) A light regulation determination continues in operation until--
(a) it is revoked by operation of section 117(5); or
(b) a decision under section 119(2) or 120 takes effect; or
(c) it is revoked by operation of section 123(2); or
(d) it is revoked by operation of section 124.
116--Submission of limited access arrangement for light
regulation services
(1) A service provider may, in respect of light regulation services the
service provider provides or intends to provide, submit a limited
access arrangement to the AER for approval by the AER under the
Rules.
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(2) If the service provider chooses to submit a limited access
arrangement in accordance with subsection (1), the limited access
arrangement must--
(a) be submitted in accordance with the Rules; and
(b) contain the information required by the Rules.
(3) A service provider must submit to the AER, for approval by the
AER under the Rules, revisions to an applicable access
arrangement that is a limited access arrangement and that applies to
the light regulation services the provider provides--
(a) in accordance with the Rules; and
(b) within the period specified by the Rules.
Division 2--Revocation of light regulation determinations
Subdivision 1--On advice from service providers
117--Advice by service provider that light regulation
services should cease to be light regulation services
(1) A service provider may advise the NCC that it wishes that the
pipeline services it provides cease to be light regulation services.
(2) An advice under subsection (1) must be in writing.
(3) On receiving an advice under subsection (1), the NCC must,
without delay, publish notice of receipt of that advice--
(a) on its website; and
(b) in a newspaper circulating generally throughout
Australia.
(4) On publication of a notice under subsection (3) the service provider
must comply with section 132.
(5) The light regulation determination applying to the pipeline services
is, by force of this section, revoked on the same day that an access
arrangement that applies to the pipeline services provided by that
service provider is, as the case requires, approved or made under a
full access arrangement decision.
(6) On the revocation of the light regulation determination the pipeline
services to which the light regulation determination applied cease
to be light regulation services.
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Subdivision 2--On application by persons other than service
providers
118--Application (other than by service provider) for
revocation of light regulation determinations
(1) A person (other than the service provider who provides light
regulation services) may apply to the NCC for the revocation of a
light regulation determination relating to those services.
(2) An application under subsection (1) must--
(a) be in accordance with the Rules; and
(b) contain the information required by the Rules.
119--Decisions on applications made around time of
applications for coverage revocation determinations
(1) This section applies if an application is made under section 118
and--
(a) there is an application for a coverage revocation
determination under section 102 under consideration--
(i) in respect of the covered pipeline by means of
which the light regulation services the subject
of the application under section 118 are
provided; and
(ii) in respect of which the NCC has not made a
coverage revocation recommendation; or
(b) an application for a coverage revocation determination is
made under section 102 in respect of the covered pipeline
by means of which the light regulation services the
subject of the application under section 118 are
provided--
(i) after the application under section 118; but
(ii) before the NCC makes its decision in respect of
the application under section 118.
(2) Despite anything to the contrary in this Part, the NCC must make
its decision in respect of the application under this section.
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(3) On receiving the application under section 118, the NCC must
decide whether to revoke the light regulation determination.
(4) The NCC must make its decision under subsection (3)--
(a) at the same time as it makes the coverage revocation
recommendation; and
(b) within the time it must make the coverage revocation
recommendation.
(5) A decision under subsection (3) must--
(a) be made in accordance with this Law and the Rules; and
Note--
For example, see section 122.
(b) be attached to the coverage revocation recommendation;
and
(c) contain the information required by the Rules.
120--NCC decision on application where no application for
a coverage revocation recommendation
(1) This section applies if--
(a) an application is made under section 118; and
(b) no application for a coverage revocation determination in
respect of the covered pipeline (by means of which the
light regulation services the subject of the application
under section 118) are provided is made before the NCC
makes its decision in respect of the application under
section 118.
(2) Subject to this section, on receiving an application under
section 118 the NCC must deal with it in accordance with the
Rules.
(3) The NCC must decide whether to revoke a light regulation
determination within--
(a) 4 months after receiving an application under
section 118; or
(b) if the Rules specify a later period, that period.
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(4) A decision under this section must--
(a) be made in accordance with this Law and the Rules; and
Note--
For example, see section 122.
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
121--Operation and effect of decision of NCC under this
Division
(1) Subject to section 124, on the making of a decision under
section 119(2) or 120 revoking a light regulation determination, the
service provider must comply with section 132.
(2) However, the decision under section 119(2) or 120 revoking a light
regulation determination does not take effect until an access
arrangement that applies to the pipeline services provided by that
service provider is approved or made under a full access
arrangement decision.
(3) The effect of a decision under section 119(2) or 120 revoking a
light regulation determination is that the pipeline services to which
the light regulation determination applied cease to be light
regulation services.
Division 3--Principles governing light regulation
determinations
122--Principles governing the making or revoking of light
regulation determinations
(1) In deciding whether to make a light regulation determination under
Division 1 or to revoke a light regulation determination under
Division 2, the NCC must consider--
(a) the likely effectiveness of the forms of regulation
provided for under this Law and the Rules to regulate the
provision of the pipeline services (the subject of the
application) to promote access to pipeline services; and
(b) the effect of the forms of regulation provided for under
this Law and the Rules on--
(i) the likely costs that may be incurred by an
efficient service provider; and
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(ii) the likely costs that may be incurred by
efficient users and efficient prospective users;
and
(iii) the likely costs of end users.
Note--
The forms of regulation provided for under this Law and the Rules
to regulate the provision of the pipeline services by means of a
covered pipeline are--
(a) making a light regulation determination so that those
services become light regulation services;
(b) not making a light regulation determination so that those
services are regulated under a full access arrangement
decision that approves or makes the applicable access
arrangement that applies to those services.
(2) In doing so, the NCC--
(a) must have regard to the national gas objective; and
(b) must have regard to the form of regulation factors; and
(c) may have regard to any other matters it considers
relevant.
Division 4--Revocation if coverage determination not made
123--Light regulation determination revoked if coverage
determination not made
(1) This section applies if--
(a) a light regulation determination has been made in respect
of pipeline services; but
(b) the pipeline by means of which those services will be
provided does not become a covered pipeline because the
relevant Minister, contrary to a coverage recommendation
recommending coverage, makes a decision not to make a
coverage determination.
(2) The light regulation determination is, by force of this section,
revoked on the same day as the relevant Minister's decision not to
make a coverage determination takes effect.
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Division 5--Effect of pipeline ceasing to be covered pipeline
124--Light regulation services cease to be such services on
cessation of coverage of pipeline
If a pipeline by means of which light regulation services are
provided ceases to be a covered pipeline because of a coverage
revocation determination--
(a) the light regulation determination applying to the light
regulation services provided by means of that pipeline is,
by force of this section, revoked on the same day the
coverage revocation determination takes effect; and
(b) to avoid doubt, the light regulation services to which that
determination applied cease to be light regulation services
on the same day.
Division 6--AER reviews into designated pipelines
125--AER reviews
(1) The MCE may request the AER to conduct a review into, and
report to it as to, whether a pipeline should continue to be a
designated pipeline.
(2) A service provider that provides pipeline services by means of a
designated pipeline may request the AER to conduct a review into,
and report to the MCE as to, whether that pipeline should continue
to be a designated pipeline.
(3) A request under subsection (1) or (2) must be in writing.
(4) On receiving a request under this section, the AER must conduct a
review as to whether the pipeline the subject of the request should
continue to be a designated pipeline.
(5) In conducting a review under this section, the AER must--
(a) have regard to--
(i) the national gas objective; and
(ii) whether there has been a material change in
competition in a market served by the
designated pipeline; and
(b) consult, in accordance with the Rules, with the public.
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(6) On the completion of a review under this section, the AER must
prepare a report and--
(a) give the report to the MCE; and
(b) publish the report on its website.
(7) The AER must also give a copy of the report to the service provider
that has requested the review.
Part 3--Coverage of pipelines the subject of tender
process
126--Tender approval pipelines deemed to be covered
pipelines
(1) A pipeline to which a tender approval decision relates is deemed to
be a covered pipeline on and from the date the tender approval
decision becomes irrevocable by operation of the Rules.
(2) The pipeline ceases to be a covered pipeline--
(a) if there is an applicable access arrangement that applies to
the pipeline services provided, or that are to be provided
by means of that pipeline--when that arrangement
expires; or
(b) when a coverage revocation determination made in
respect of that pipeline takes effect.
Note--
Under the Rules, the NCC will--
(a) classify the pipeline to be constructed and operated in
accordance with an approved tender process as a cross
boundary transmission pipeline, cross boundary
distribution pipeline, transmission pipeline or
distribution pipeline; and
(b) determine the relevant Minister for the purposes of that
pipeline.
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Part 4--Coverage following approval of voluntary
access arrangement
127--Certain pipelines become covered pipelines on
approval of voluntary access arrangement
(1) This section applies if--
(a) a service provider voluntarily submits to the AER for
approval by the AER, under the Rules, a full access
arrangement that will apply to the pipeline services
provided, or that are to be provided, by means of a
pipeline; and
(b) that pipeline is not a covered pipeline.
(2) The pipeline is deemed to be a covered pipeline on the day the
voluntarily submitted full access arrangement takes effect as an
applicable access arrangement.
(3) The pipeline ceases to be a covered pipeline--
(a) when the applicable access arrangement that applies to
the pipeline services provided, or that are to be provided,
expires; or
(b) when a coverage revocation determination is made in
respect of that pipeline takes effect.
Note--
Under the Rules, the NCC will--
(a) classify the pipeline (by means of which the pipeline
services to which the arrangement relates are provided)
as a cross boundary transmission pipeline, cross
boundary distribution pipeline, transmission pipeline or
distribution pipeline; and
(b) determine the relevant Minister for the purposes of that
pipeline.
Part 5--Reclassification of pipelines
128--Service provider may apply for reclassification of
pipeline
(1) A service provider may, in respect of a pipeline by means of which
the service provider provides pipeline services, apply to the NCC
for the pipeline to be reclassified as--
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(a) if the pipeline is a transmission pipeline--a distribution
pipeline; or
(b) if the pipeline is a distribution pipeline--a transmission
pipeline.
(2) The application must be accompanied by the fee prescribed by the
Regulations (if any).
129--Reclassification decision
(1) The NCC must make a decision (a reclassification decision)
within--
(a) 4 months after receiving an application under
section 128; or
(b) if the Rules specify a later period, that period.
(2) A reclassification decision must--
(a) be made in accordance with this Law and the Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
(3) In making a reclassification decision, the NCC must have regard
to--
(a) the national gas objective; and
(b) the pipeline classification criterion.
(4) The NCC must also as part of the reclassification decision--
(a) if it reclassifies the pipeline the subject of the application
as a transmission pipeline--determine whether the
transmission pipeline is also a cross boundary
transmission pipeline;
(b) if it reclassifies the pipeline the subject of the application
as a distribution pipeline--determine whether the
distribution pipeline is also a cross boundary distribution
pipeline.
(5) If, under subsection (4), the NCC determines that a pipeline
reclassified as a distribution pipeline is also a cross boundary
distribution pipeline, the NCC must determine the participating
jurisdiction with which the cross boundary distribution pipeline is
most closely connected. In doing so, the NCC must have regard to
the jurisdictional determination criteria.
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130--Effect of reclassification decision
On the making of a reclassification decision--
(a) the pipeline is, in accordance with the decision,
reclassified as either a transmission pipeline or
distribution pipeline; and
(b) the relevant Minister in respect of the pipeline is the
relevant Minister as provided under this Law.
Chapter 4--General requirements for provision of
covered pipeline services
Part 1--General duties for provision of pipeline
services by covered pipelines
131--Service provider must be legal entity of a specified
kind to provide pipeline services by covered pipeline
A covered pipeline service provider must not provide a pipeline
service by means of a covered pipeline unless the service provider
is--
(a) a legal entity registered under the Corporations Act 2001
of the Commonwealth; or
(b) a foreign company; or
(c) a corporation established by or under a law of this
jurisdiction or another participating jurisdiction, whether
or not that corporation has been established for a public
purpose; or
(d) the Crown in right of this jurisdiction or another
participating jurisdiction; or
(e) a person referred to in paragraph (a) to (d) and that person
provides a pipeline service by means of a covered
pipeline together with another person referred to in
paragraph (a) to (d).
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132--Submission of full access arrangement or revisions to
applicable full access arrangements
(1) A covered pipeline service provider must submit to the AER, for
approval by the AER under the Rules, a full access arrangement or
revisions to an applicable access arrangement that is a full access
arrangement, in respect of the pipeline services the provider
provides or intends to provide--
(a) in the circumstances specified by the Rules; and
(b) within the period of time specified by the Rules.
(2) Subsection (1) does not apply--
(a) if the pipeline services that are, or are intended to be,
provided by the service provider light regulation services;
or
(b) to the extent the Rules provide subsection (1) is not to
apply.
Note--
A service provider who provides or intends to provide pipeline services by
means of an international pipeline to which a price regulation applies must
submit a limited access arrangement to the AER for approval: see section 168.
133--Preventing or hindering access
(1) A person who is--
(a) a covered pipeline service provider; or
(b) a person who--
(i) is a party to an agreement with a service
provider relating to a pipeline service provided
by means of a covered pipeline; or
(ii) as a result of an access determination is entitled
to a pipeline service provided by means of a
covered pipeline; or
(c) an associate of a service provider or a person referred to
in paragraph (b),
must not engage in conduct for the purpose of preventing or
hindering the access of another person to a pipeline service
provided by means of the covered pipeline.
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(2) For the purposes of subsection (1), a person is deemed to engage in
conduct for a particular purpose if--
(a) the conduct is or was engaged in for that purpose or for a
purpose that includes, or included, that purpose; and
(b) that purpose is or was a substantial purpose.
(3) A person may be taken to have engaged in conduct for the purpose
referred to in subsection (1) even though, after all the evidence has
been considered, the existence of that purpose is ascertainable only
by inference from the conduct of the person or of any other person
or from other relevant circumstances.
(4) Subsection (3) does not limit the manner in which the purpose of a
person may be established for the purpose of subsection (1).
(5) In this section--
(a) a reference to engaging in conduct is a reference to doing
or refusing to do any act, including refusing to supply a
pipeline service or, without reasonable grounds, limiting
or disrupting a pipeline service, or making, or giving
effect to, a provision of, a contract or arrangement,
arriving at, or giving effect to, a provision of, an
understanding or requiring the giving of, or giving, a
covenant;
(b) a reference to refusing to do an act includes a reference
to--
(i) refraining (otherwise than inadvertently) from
doing that act; or
(ii) making it known that that act will not be done.
(6) Subsection (1) does not apply to conduct engaged in in accordance
with an agreement, if the agreement was in force on 30 March
1995.
Example--
An example of conduct which may be prohibited if the requisite purpose is
established is refusing to supply, or limiting or disrupting the supply of, a
pipeline service to a user or prospective user for technical or safety reasons
without reasonable grounds.
134--Supply and haulage of natural gas
(1) If a producer states terms and conditions (whether or not including
the price) (the first terms) on which the producer offers to supply
natural gas through a covered pipeline that is in operation at the
time of the offer to a person at a place other than the exit flange of
the producer's processing plant, the producer must, on request by
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the person, state terms and conditions (including the price, if the
price was included in the first terms) (the second terms) on which
the producer will supply natural gas to the person at the exit flange.
(2) If there is a difference in the price stated in the first terms and the
second terms, the producer must include in the second terms a
statement of the reasons for the difference.
(3) If the producer offers to supply natural gas to a person at a place
other than the exit flange of the producer's processing plant, the
producer must, on request, offer to supply the gas at the exit flange
on the terms and conditions (including price) stated in accordance
with this section.
135--Covered pipeline service provider must comply with
queuing requirements
A covered pipeline service provider must comply with the queuing
requirements of an applicable access arrangement.
136--Covered pipeline service provider providing light
regulation services must not price discriminate
(1) A covered pipeline service provider must not engage in price
discrimination when providing light regulation services.
(2) Subsection (1) does not apply if the covered pipeline service
provider engages in price discrimination that is conducive to
efficient service provision.
Part 2--Structural and operational separation
requirements (ring fencing)
Division 1--Interpretation
137--Definitions
In this Part--
additional ring fencing requirement has the meaning given by
section 143(1);
compliance date means the date that is 6 months after the date a
pipeline becomes a covered pipeline;
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marketing staff has the meaning given by section 138;
related business means the business of producing, purchasing or
selling natural gas or processable gas, but does not include
purchasing or selling of natural gas or processable gas to the extent
necessary--
(a) for the safe and reliable operation of a covered pipeline;
or
(b) to enable a service provider to provide balancing services
in connection with a covered pipeline.
138--Meaning of marketing staff
(1) A person is marketing staff of--
(a) a covered pipeline service provider, if the person--
(i) is an officer, employee, consultant or
independent contractor or agent of the covered
pipeline service provider; and
(ii) is directly involved in the sale, marketing or
advertising of pipeline services (whether or not
the person is also involved in other activities);
(b) an associate of a covered pipeline service provider, if the
person--
(i) is an officer, employee, consultant or
independent contractor or agent of the
associate; and
(ii) is directly involved in the sale, marketing or
advertising of pipeline services (whether or not
the person is also involved in other activities).
(2) A person