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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
National Gas Access (Western Australia)
Bill 2008
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
4. Crown bound 2
5. Application to coastal waters 3
6. Extra-territorial operation 3
6A. Extension to certain pipelines for hauling gas other
than natural gas 3
6B. Interpretation Act 1984 does not apply 4
Part 2 -- National Gas Access
(Western Australia) Law and its
regulations
7. National Gas Access (Western Australia) Law 5
7A. Amendments to Schedule to South Australian Act 5
7B. Regulations making consequential modifications 6
8. National Gas Access (Western Australia)
Regulations 6
9. Terms used in National Gas Access (Western
Australia) Law and its regulations 6
Part 3 -- Regulations for the
National Gas Access (Western
Australia) Law
10. Making regulations 9
11. Regulations may deal with transitional matters 10
294--1 page i
National Gas Access (Western Australia) Bill 2008
Contents
Part 4 -- Cross vesting of functions
and powers
12. Conferral of powers on Commonwealth Minister
and Commonwealth bodies to act in this State 12
13. Conferral of powers on Ministers of other
participating States and Territories to act in this
State 12
14. Conferral of functions or powers on State bodies 12
Part 5 -- General
15. Exemption from taxes 13
16. Actions in relation to cross boundary pipelines 13
17. Conferral of functions and powers on
Commonwealth bodies 14
Part 6 -- Other local provisions
Division 1 -- Economic Regulation Authority
18. Expertise of Director of Energy Safety to be used 16
Division 2 -- Miscellaneous
19. Transitional provisions for Kalgoorlie to Kambalda
pipeline 16
20. Regulations 16
21. Review of Act 17
Part 7 -- Various Acts amended
Division 1 -- This Act amended when Offshore
Petroleum Act 2006 (Commonwealth)
commences
22. The Act amended 19
23. Section 9 amended 19
Division 2 -- Gas Pipelines Access (Western
Australia) Act 1998
24. The Act amended 19
25. Long title replaced 19
26. Preamble deleted 20
27. Section 1 amended 20
28. Sections 2 to 4 repealed 20
29. Section 5 amended 20
30. Sections 6 to 8 repealed 20
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National Gas Access (Western Australia) Bill 2008
Contents
31. Parts 2 to 5 repealed 20
32. Heading to Part 6 replaced 20
Part 6 -- Review board and arbitrator
33. Part 6 Division 1 repealed 20
34. Heading to Part 6 Division 2 replaced 21
Division 2 -- Review board
35. Section 49 amended 21
36. Heading to Part 6 Division 2 Subdivision 2
replaced 21
Subdivision 2 -- Western Australian Electricity
Review Board established
37. Section 50 amended 21
38. Section 57 amended 22
39. Section 59 amended 22
40. Section 61 amended 22
41. Heading to Part 6 Division 3 Subdivision 2
amended 22
42. Section 62 amended 22
43. Section 73 amended 22
44. Section 74 amended 23
45. Section 76 amended 23
46. Section 77 amended 24
47. Section 81 amended 24
48. Section 82 amended 24
49. Section 87 repealed 24
50. Section 88 repealed 24
51. Parts 7 and 8 repealed 24
52. Schedules repealed 25
Division 3 -- Other Acts amended
53. Constitution Acts Amendment Act 1899 amended 25
54. Economic Regulation Authority Act 2003 amended 25
55. Electricity Industry Act 2004 amended 26
56. Energy Coordination Act 1994 amended 28
57. Financial Management Act 2006 amended 29
58. Freedom of Information Act 1992 amended 29
59. Parliamentary Commissioner Act 1971 amended 30
60. Petroleum Pipelines Act 1969 30
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National Gas Access (Western Australia) Bill 2008
Contents
Schedule 1 -- Some modifications to
National Gas Law as in Schedule
to South Australian Act
1. Purpose of this Schedule 31
2. Meaning of "underlying National Gas Law" 31
3. Section 1 of underlying National Gas Law
modified 31
4. Section 2 modified 31
5. Section 2A inserted 33
2A. Meaning of AER modified 33
6. Chapter 1 Part 1A inserted 34
Part 1A -- Postponement of Natural Gas Services
Bulletin Board provisions
20A. Minister may fix day on which provisions
apply 34
7. Section 29 amended 34
8. Section 30 amended 34
9. Chapter 2 Part 1A inserted 35
Part 1A -- Functions and powers of WA arbitrator
68A. Manner in which WA arbitrator must
perform or exercise certain functions or
powers 35
10. Section 181A inserted 36
181A. Providing information for certain disputes 36
11. Section 231 modified 37
12. Section 240 modified 37
13. Schedule 1 modified 38
14. Schedule 2 modified 38
27A. WA modifications of clause 27 38
50. Attempts and incitement 39
15. Schedule 3 modified 40
Note -- Western Australian National
Gas Access Law text
Chapter 1 -- Preliminary
Part 1 -- Citation and interpretation
1. Citation 41
2. Definitions 41
2A. Meaning of AER modified 60
3. Meaning of civil penalty provision 61
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National Gas Access (Western Australia) Bill 2008
Contents
4. Meaning of conduct provision 62
5. Meaning of prospective user 62
6. Meaning of regulatory obligation or requirement 63
12. Commissioning of a pipeline 67
13. Pipeline classification criterion 67
14. Jurisdictional determination criteria--cross
boundary distribution pipelines 68
15. Pipeline coverage criteria 68
16. Form of regulation factors 69
17. Effect of separate and consolidated access
arrangements in certain cases 70
18. Certain extensions to, or expansion of the capacity
of, pipelines to be taken to be part of a covered
pipeline 71
19. Expansions of and extensions to covered pipeline
by which light regulation services are provided 71
20. Interpretation generally 71
Part 1A -- Postponement of Natural Gas
Services Bulletin Board provisions
20A. Minister may fix day on which provisions apply 72
Part 2 -- Participating jurisdictions
21. Participating jurisdictions 72
22. Ministers of participating jurisdictions 72
Part 3 -- National gas objective and principles
Division 1 -- National gas objective
23. National gas objective 73
Division 2 -- Revenue and pricing principles
24. Revenue and pricing principles 73
Division 3 -- MCE policy principles
25. MCE statements of policy principles 74
Part 4 -- Operation and effect of National Gas
Rules
26. National Gas Rules to have force of law 75
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National Gas Access (Western Australia) Bill 2008
Contents
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 76
28. Manner in which AER must perform or exercise
AER economic regulatory functions or powers 77
29. Delegations 77
30. Confidentiality 78
Division 2 -- Search warrants
31. Definitions 79
32. Authorised person 79
33. Identity cards 79
34. Return of identity cards 80
35. Search warrant 80
36. Announcement of entry and details of warrant to
be given to occupier or other person at premises 81
37. Immediate entry permitted in certain cases 82
38. Copies of seized documents 82
39. Retention and return of seized documents or things 82
40. Extension of period of retention of documents or
things seized 83
41. Obstruction of persons authorised to enter 84
Division 3 -- General information gathering powers
42. Power to obtain information and documents in
relation to performance and exercise of functions
and powers 85
Division 4 -- Regulatory information notices and
general regulatory information orders
Subdivision 1 -- Interpretation
43. Definitions 87
44. Meaning of contributing service 87
45. Meaning of general regulatory information order 88
46. Meaning of regulatory information notice 89
47. Division does not limit operation of information
gathering powers under Division 3 89
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National Gas Access (Western Australia) Bill 2008
Contents
Subdivision 2 -- Serving and making of regulatory
information instruments
48. Service and making of regulatory information
instrument 89
49. Additional matters to be considered for related
provider regulatory information instruments 90
50. AER must consult before publishing a general
regulatory information order 92
51. Publication requirements for general regulatory
information orders 92
52. Opportunity to be heard before regulatory
information notice is served 93
Subdivision 3 -- Form and content of regulatory
information instruments
53. Form and content of regulatory information
instrument 94
54. Further provision about the information that may
be described in a regulatory information instrument 95
55. Further provision about manner in which
information must be provided to AER or kept 96
Subdivision 4 -- Compliance with regulatory
information instruments
56. Compliance with regulatory information notice
that is served 97
57. Compliance with general regulatory information
order 97
58. Exemptions from compliance with general
regulatory information order 98
59. Assumptions where there is non-compliance with
regulatory information instrument 98
Subdivision 5 -- General
60. Providing to AER false and misleading
information 99
61. Person cannot rely on duty of confidence to avoid
compliance with regulatory information instrument 99
62. Legal professional privilege not affected 100
63. Protection against self-incrimination 100
Division 5 -- Service provider performance reports
64. Preparation of service provider performance
reports 100
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National Gas Access (Western Australia) Bill 2008
Contents
Division 6 -- Miscellaneous matters
65. Consideration by the AER of submissions or
comments made to it under this Law or the Rules 102
66. Use of information provided under a notice under
Division 3 or a regulatory information instrument 102
67. AER to inform certain persons of decisions not to
investigate breaches, institute proceedings or serve
infringement notices 102
68. AER enforcement guidelines 103
Part 1A -- Functions and powers of
WA arbitrator
68A. Manner in which WA arbitrator must perform or
exercise certain functions or powers 103
Part 2 -- Functions and powers of the
Australian Energy Market Commission
Division 1 -- General
69. Functions and powers of the AEMC 104
70. Delegations 104
71. Confidentiality 105
72. AEMC must have regard to national gas objective 105
73. AEMC must have regard to MCE statements of
policy principles in relation to Rule making and
reviews 105
Division 2 -- Rule making functions and powers of
the AEMC
74. Subject matter for National Gas Rules 105
75. Rules relating to MCE or Ministers of participating
jurisdictions require MCE consent 109
76. AEMC must not make Rules that create criminal
offences or impose civil penalties for breaches 109
77. Documents etc applied, adopted and incorporated
by Rules to be publicly available 109
Division 3 -- Committees, panels and working
groups of the AEMC
78. Establishment of committees, panels and working
groups 110
Division 4 -- MCE directed reviews
79. MCE directions 110
80. Terms of reference 111
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National Gas Access (Western Australia) Bill 2008
Contents
81. Notice of MCE directed review 112
82. Conduct of MCE directed review 112
Division 5 -- Other reviews
83. Rule reviews by the AEMC 113
Division 6 -- Miscellaneous matters
84. AEMC must publish and make available up to date
versions of Rules 114
85. Fees 114
86. Immunity from personal liability of AEMC
officials 114
Part 3 -- Functions and powers of Ministers of
participating jurisdictions
87. Functions and powers of Minister of this
participating jurisdiction under this Law 115
88. Functions and powers of Commonwealth Minister
under this Law 115
Part 4 -- Functions and powers of the NCC
89. Functions and powers of NCC under this Law 115
90. Confidentiality 116
Part 5 -- Functions and powers of Tribunal
91. Functions and powers of Tribunal under this Law 117
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 118
93. Application to be dealt with in accordance with the
Rules 118
94. NCC may defer consideration of application in
certain cases 118
95. NCC coverage recommendation 119
96. NCC must not make coverage recommendation if
tender approval decision becomes irrevocable 120
97. Principles governing the making of a coverage
recommendation 120
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National Gas Access (Western Australia) Bill 2008
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98. Initial classification decision to be made as part of
recommendation 121
99. Relevant Minister's determination on application 122
100. Principles governing the making of a coverage
determination or decision not to do so 123
101. Operation and effect of coverage determination 124
Division 2 -- Coverage revocation determinations
102. Application for a determination that a pipeline no
longer be a covered pipeline 124
103. Application to be dealt with in accordance with the
Rules 124
104. NCC coverage revocation recommendation 125
105. Principles governing the making of a coverage
revocation recommendation 125
106. Relevant Minister's determination on application 126
107. Principles governing the making of a coverage
revocation determination or decision not to do so 127
108. Operation and effect of coverage revocation
determination 128
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 128
110. NCC's decision on light regulation of pipeline
services 129
Subdivision 2 -- Decisions when pipeline is a covered
pipeline
111. Application of Subdivision 129
112. Application 130
113. Application to be dealt with in accordance with the
Rules 130
114. NCC's decision on light regulation of pipeline
services 130
Subdivision 3 -- Operation and effect of light
regulation determinations
115. When light regulation determinations take effect 131
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National Gas Access (Western Australia) Bill 2008
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116. Submission of limited access arrangement for light
regulation services 131
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 132
Subdivision 2 -- On application by persons other
than service providers
118. Application (other than by service provider) for
revocation of light regulation determinations 133
119. Decisions on applications made around time of
applications for coverage revocation
determinations 133
120. NCC decision on application where no application
for a coverage revocation recommendation 135
121. Operation and effect of decision of NCC under this
Division 135
Division 3 -- Principles governing light regulation
determinations
122. Principles governing the making or revoking of
light regulation determinations 136
Division 4 -- Revocation if coverage determination
not made
123. Light regulation determination revoked if coverage
determination not made 137
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 138
Division 6 -- AER reviews into designated pipelines
125. AER reviews 138
Part 3 -- Coverage of pipelines the subject of
tender process
126. Tender approval pipelines deemed to be covered
pipelines 139
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National Gas Access (Western Australia) Bill 2008
Contents
Part 4 -- Coverage following approval of
voluntary access arrangement
127. Certain pipelines become covered pipelines on
approval of voluntary access arrangement 140
Part 5 -- Reclassification of pipelines
128. Service provider may apply for reclassification of
pipeline 141
129. Reclassification decision 141
130. Effect of reclassification decision 142
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 143
132. Submission of full access arrangement or revisions
to applicable full access arrangements 143
133. Preventing or hindering access 144
134. Supply and haulage of natural gas 146
135. Covered pipeline service provider must comply
with queuing requirements 146
136. Covered pipeline service provider providing light
regulation services must not price discriminate 147
Part 2 -- Structural and operational separation
requirements (ring fencing)
Division 1 -- Interpretation
137. Definitions 147
138. Meaning of marketing staff 148
Division 2 -- Minimum ring fencing requirements
139. Carrying on of related businesses prohibited 149
140. Marketing staff and the taking part in related
businesses 149
141. Accounts that must be prepared, maintained and
kept 150
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National Gas Access (Western Australia) Bill 2008
Contents
Division 3 -- Additional ring fencing requirements
142. Division does not limit operation of Division 2 150
143. AER ring fencing determinations 150
144. AER to have regard to likely compliance costs of
additional ring fencing requirements 152
145. Types of ring fencing requirements that may be
specified in an AER ring fencing determination 152
Division 4 -- AER ring fencing exemptions
146. Exemptions from minimum ring fencing
requirements 153
Division 5 -- Associate contracts
147. Service provider must not enter into or give effect
to associate contracts that have anti-competitive
effect 154
148. Service provider must not enter into or give effect
to associate contracts inconsistent with competitive
parity rule 154
Chapter 5 -- Greenfields pipeline
incentives
Part 1 -- Interpretation
149. Definitions 156
150. International pipeline to be a transmission pipeline
for purposes of Chapter 156
Part 2 -- 15-year no-coverage determinations
151. Application for 15-year no-coverage determination
for proposed pipeline 157
152. Application to be dealt with in accordance with the
Rules 158
153. No-coverage recommendation 158
154. Principles governing the making of a no-coverage
recommendation 159
155. Initial classification decision to be made as part of
recommendation 159
156. Relevant Minister's determination on application 160
157. Principles governing the making of a 15-year
no-coverage determination or decision not to do so 161
158. Effect of 15-year no-coverage determination 162
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National Gas Access (Western Australia) Bill 2008
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159. Consequences of Minister deciding against making
15-year no-coverage determination for
international pipeline 162
Part 3 -- Price regulation exemptions
Division 1 -- Application for price regulation
exemption
160. Application for price regulation exemption 163
Division 2 -- Recommendations by NCC
161. Application to be dealt with in accordance with the
Rules 164
162. NCC's recommendation 164
163. General principle governing NCC's
recommendation 164
Division 3 -- Making and effect of price regulation
exemption
164. Making of price regulation exemption 165
165. Principles governing the making of a price
regulation exemption 165
166. Conditions applying to a price regulation
exemption 166
167. Effect of price regulation exemption 167
Division 4 -- Limited access arrangements
168. Limited access arrangements for pipeline services
provided by international pipeline to which a price
regulation exemption applies 167
Division 5 -- Other matters
169. Other obligations to which service provider is
subject 168
170. Service provider must not price discriminate in
providing international pipeline services 169
Part 4 -- Extended or modified application of
greenfields pipeline incentive
171. Requirement for conformity between pipeline
description and pipeline as constructed 169
172. Power of relevant Minister to amend pipeline
description 170
Part 5 -- Early termination of greenfields
pipeline incentive
173. Greenfields pipeline incentive may lapse 171
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National Gas Access (Western Australia) Bill 2008
Contents
174. Revocation by consent 171
175. Revocation for misrepresentation 171
176. Revocation for breach of condition to which a
price regulation exemption is subject 171
177. Exhaustive provision for termination of greenfields
pipeline incentive 171
Chapter 6 -- Access disputes
Part 1 -- Interpretation and application
178. Definitions 172
179. Chapter does not limit how disputes about access
may be raised or dealt with 172
180. No price or revenue regulation for access disputes
relating to international pipeline services 172
Part 2 -- Notification of access dispute
181. Notification of access dispute 173
181A. Providing information for certain disputes 173
182. Withdrawal of notification 174
183. Parties to an access dispute 174
Part 3 -- Access determinations
184. Determination of access dispute 175
185. Dispute resolution body may require parties to
mediate, conciliate or engage in an alternative
dispute resolution process 175
186. Dispute resolution body may terminate access
dispute in certain cases 175
187. No access determination if dispute resolution body
considers there is genuine competition 176
188. Restrictions on access determinations 177
189. Access determination must give effect to
applicable access arrangement 178
190. Access determinations and past contributions of
capital to fund installations or the construction of
new facilities 178
191. Rules may allow determination that varies
applicable access arrangement for installation of a
new facility 178
192. Access determinations need not require the
provision of a pipeline service 179
193. Content of access determinations 179
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National Gas Access (Western Australia) Bill 2008
Contents
Part 4 -- Variation of access determinations
194. Variation of access determination 180
Part 5 -- Compliance with access
determinations
195. Compliance with access determination 180
Part 6 -- Access dispute hearing procedure
196. Hearing to be in private 180
197. Right to representation 181
198. Procedure of dispute resolution body 181
199. Particular powers of dispute resolution body in a
hearing 182
200. Disclosure of information 182
201. Power to take evidence on oath or affirmation 183
202. Failing to attend as a witness 183
203. Failing to answer questions etc 183
204. Intimidation etc. 184
205. Party may request dispute resolution body to treat
material as confidential 184
206. Costs 186
207. Outstanding costs are a debt due to party awarded
the costs 187
Part 7 -- Joint access dispute hearings
208. Definition 188
209. Joint dispute hearing 188
210. Consulting the parties 188
211. Constitution and procedure of dispute resolution
body for joint dispute hearings 189
212. Record of proceedings etc 189
Part 8 -- Miscellaneous matters
213. Correction of access determinations for clerical
mistakes etc. 189
214. Reservation of capacity during an access dispute 190
215. Subsequent service providers bound by access
determinations 190
216. Regulations about the costs to be paid by parties to
access dispute 190
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National Gas Access (Western Australia) Bill 2008
Contents
Chapter 7 -- The Natural Gas
Services Bulletin Board
Part 1 -- The Bulletin Board Operator
217. The Bulletin Board operator 191
218. Obligation to establish and maintain the Natural
Gas Services Bulletin Board 191
219. Other functions of the Bulletin Board operator 191
220. Powers of the Bulletin Board operator 192
221. Immunity of the Bulletin Board operator 192
222. Fees for services provided 193
Part 2 -- Bulletin Board information
223. Obligation to give information to the Bulletin
Board operator 193
224. Person cannot rely on duty of confidence to avoid
compliance with obligation 194
225. Giving to Bulletin Board operator false and
misleading information 194
226. Immunity of persons giving information to the
Bulletin Board operator 194
Part 3 -- Protection of information
227. Protection of information by the Bulletin Board
operator 195
228. Protection of information by employees etc of the
Bulletin Board operator 196
Chapter 8 -- Proceedings under the
National Gas Law
Part 1 -- Proceedings generally
229. Instituting civil proceedings under this Law 199
230. Time limit within which proceedings may be
instituted 199
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 200
232. Proceedings for declaration that a person is in
breach of a conduct provision 202
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National Gas Access (Western Australia) Bill 2008
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233. Actions for damages by persons for breach of
conduct provision 203
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 203
235. Breach of a civil penalty provision is not an
offence 204
236. Breaches of civil penalty provisions involving
continuing failure 204
237. Conduct in breach of more than 1 civil penalty
provision 204
238. Persons involved in breach of civil penalty
provision or conduct provision 205
239. Attempt to breach a civil penalty provision 205
240. Civil penalties payable to the Commonwealth 205
Part 4 -- Judicial review of decisions under this
Law, the Regulations and the Rules
241. Definition 206
242. Applications for judicial review of decisions of the
AEMC 206
243. Applications for judicial review of decisions of the
Bulletin Board operator 207
Part 5 -- Merits review and other
non-judicial review
Division 1 -- Interpretation
244. Definitions 207
Division 2 -- Merits review for reviewable
regulatory decisions
245. Applications for review 211
246. Grounds for review 211
247. By when an application must be made 212
248. Tribunal must not grant leave unless serious issue
to be heard and determined 212
249. Leave must be refused if application is about an
error relating to revenue amounts below specified
threshold 213
250. Tribunal must refuse to grant leave if submission
not made or is made late 213
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National Gas Access (Western Australia) Bill 2008
Contents
251. Tribunal may refuse to grant leave to service
provider in certain cases 214
252. Effect of application on operation of reviewable
regulatory decisions 215
253. Intervention by others in a review without leave 215
254. Leave for reviewable regulatory decision process
participants 215
255. Leave for user or consumer intervener 216
256. Interveners may raise new grounds for review 217
257. Parties to a review under this Division 217
258. Matters that parties to a review may and may not
raise in a review 217
259. Tribunal must make determination 218
260. Target time limit for Tribunal for making a
determination under this Division 219
261. Matters to be considered by Tribunal in making
determination 220
262. Assistance from NCC in certain cases 222
Division 3 -- Tribunal review of AER information
disclosure decisions under section 329
263. Application for review 222
264. Exclusion of public in certain cases 223
265. Determination in the review 223
266. Tribunal must be taken to have affirmed decision if
decision not made within time 224
267. Assistance from the AER in certain cases 224
Division 4 -- General
268. Costs in a review 224
269. Amount of costs 226
270. Review of Part 226
Part 6 -- Enforcement of access determinations
271. Enforcement of access determinations 226
272. Consent injunctions 227
273. Interim injunctions 228
274. Factors relevant to granting a restraining injunction 228
275. Factors relevant to granting a mandatory injunction 228
276. Discharge or variation of injunction or other order 228
Part 7 -- Infringement notices
277. Power to serve notice 229
278. Form of notice 229
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National Gas Access (Western Australia) Bill 2008
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279. Infringement penalty 230
280. AER cannot institute proceedings while
infringement notice on foot 230
281. Late payment of penalty 231
282. Withdrawal of notice 231
283. Refund of infringement penalty 232
284. Payment expiates breach of civil penalty provision 232
285. Payment not to have certain consequences 232
286. Conduct in breach of more than 1 civil penalty
provision 232
Part 8 -- Further provision for corporate
liability for breaches of this Law etc.
287. Definition 233
288. Offences and breaches by corporations 233
289. Corporations also in breach if officers and
employees are in breach 233
Chapter 9 -- The making of the
National Gas Rules
Part 1 -- General
Division 1 -- Interpretation
290. Definitions 234
Division 2 -- Rule making tests
291. Application of national gas objective 236
292. AEMC must take into account form of regulation
factors in certain cases 236
293. AEMC must take into account revenue and pricing
principles in certain cases 237
Part 2 -- Initial National Gas Rules
294. South Australian Minister to make initial National
Gas Rules 237
Part 3 -- Procedure for the making of a Rule by
the AEMC
295. Initiation of making of a Rule 238
296. AEMC may make more preferable Rule in certain
cases 239
297. AEMC may make Rules that are consequential to a
Rule request 239
298. Content of requests for a Rule 239
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National Gas Access (Western Australia) Bill 2008
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299. Waiver of fee for Rule requests 240
300. Consolidation of 2 or more Rule requests 240
301. Initial consideration of request for Rule 240
302. AEMC may request further information from Rule
proponent in certain cases 242
303. Notice of proposed Rule 242
304. Publication of non-controversial or urgent final
Rule determination 243
305. "Fast track" Rules where previous public
consultation by gas market regulatory body or an
AEMC review 244
306. Right to make written submissions and comments 246
307. AEMC may hold public hearings before draft Rule
determination 246
308. Draft Rule determination 246
309. Right to make written submissions and comments
in relation to draft Rule determination 248
310. Pre-final Rule determination hearing may be held 248
311. Final Rule determination 249
312. Further draft Rule determination may be made
where proposed Rule is a proposed more
preferable Rule 251
313. Making of Rule 251
314. Operation and commencement of Rule 251
315. Rule that is made to be published on website and
made available to the public 252
316. Evidence of the National Gas Rules 252
Part 4 -- Miscellaneous provisions relating to
rule making by the AEMC
317. Extension of periods of time in Rule making
procedure 252
318. AEMC may extend period of time for making of
final Rule determination for further consultation 253
319. AEMC may publish written submissions and
comments unless confidential 254
320. AEMC must publicly report on Rules not made
within 12 months of public notification of requests 255
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National Gas Access (Western Australia) Bill 2008
Contents
Chapter 10 -- General
Part 1 -- Provisions relating to applicable
access arrangements
321. Protection of certain pre-existing contractual rights 256
322. Service provider may enter into agreement for
access different from applicable access
arrangement 257
323. Applicable access arrangements continue to apply
regardless of who provides pipeline service 257
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 257
325. Disclosure with prior written consent is authorised 258
326. Disclosure for purposes of court and tribunal
proceedings and to accord natural justice 258
327. Disclosure of information given to the AER with
confidential information omitted 258
328. Disclosure of information given in confidence does
not identify anyone 259
329. Disclosure of confidential information authorised
if detriment does not outweigh public benefit 259
Division 2 -- Disclosure of confidential information
held by relevant Ministers, NCC and AEMC
330. Definitions 262
331. Confidentiality of information received for scheme
procedure purpose and for making of scheme
decision 263
Part 3 -- Miscellaneous
332. Failure to make a decision under this Law or the
Rules within time does not invalidate the decision 265
333. Withdrawal of applications relating to coverage or
reclassification 265
334. Notification of Ministers of participating
jurisdictions of receipt of application 266
335. Relevant Minister may request NCC to give
information or assistance 266
336. Savings and transitionals 267
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National Gas Access (Western Australia) Bill 2008
Contents
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 278
Part 2 -- General
2. Law to be construed not to exceed legislative
power of Legislature 278
3. Vacant provision 279
4. Material that is, and is not, part of Law 280
5. References to particular Acts and to enactments 280
6. References taken to be included in Act or Law
citation etc 281
7. Interpretation best achieving Law's purpose 281
8. Use of extrinsic material in interpretation 282
9. Compliance with forms 284
Part 3 -- Terms and references
10. Definitions 284
11. Provisions relating to defined terms and gender
and number 289
12. Meaning of may and must etc 289
13. Words and expressions used in statutory
instruments 289
14. References to Minister 290
15. Production of records kept in computers etc 291
16. References to this jurisdiction to be implied 291
17. References to officers and holders of offices 292
18. Reference to certain provisions of Law 292
Part 4 -- Functions and powers
19. Performance of statutory functions 293
20. Power to make instrument or decision includes
power to amend or repeal 294
21. Matters for which statutory instruments may make
provision 294
22. Presumption of validity and power to make 295
page xxiii
National Gas Access (Western Australia) Bill 2008
Contents
23. Appointments may be made by name or office 296
24. Acting appointments 296
25. Powers of appointment imply certain incidental
powers 298
26. Delegation 299
27. Exercise of powers between enactment and
commencement 300
27A. WA modifications of clause 27 303
Part 5 -- Distance and time
28. Matters relating to distance and time 304
Part 6 -- Service of documents
29. Service of documents and meaning of service by
post etc 305
30. Meaning of service by post etc 306
Part 7 -- Evidentiary matters
Division 1 -- Publication on websites
31. Definitions 306
32. Publication of decisions on websites 307
Division 2 -- Evidentiary certificates
33. Definitions 307
34. Evidentiary certificates--AER 308
35. Evidentiary certificates--AEMC 310
36. Evidentiary certificates--NCC 310
37. Evidentiary certificates--relevant Minister and
Commonwealth Minister 311
38. Evidentiary certificates--Bulletin Board operator 311
Part 8 -- Commencement of this Law and
statutory instruments
39. Time of commencement of this Law or a provision
of this Law 312
40. Time of commencement of a Rule 312
Part 9 -- Effect of repeal, amendment or
expiration
41. Time of Law, the Regulations or Rules ceasing to
have effect 312
42. Repealed Law, Regulation or Rule provisions not
revived 313
43. Saving of operation of repealed Law, Regulation or
Rule provisions 313
page xxiv
National Gas Access (Western Australia) Bill 2008
Contents
44. Continuance of repealed provisions 314
45. Law and amending Acts to be read as one 314
Part 10 -- Offences under this Law
46. Penalty at foot of provision 314
47. Penalty other than at foot of provision 315
48. Indictable offences and summary offences 315
49. Double jeopardy 316
50. Attempts and incitement 317
Part 11 -- Instruments under this Law
51. Schedule applies to statutory instruments 317
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 317
53. Invalid Rules 319
Schedule 3 -- Savings and
transitionals
Part 1 -- General
1. Definitions 320
2. Schedule subject to jurisdictional transitional
arrangements in jurisdictional legislation 323
Part 2 -- General savings provision
3. Saving of operation of old access law and Gas
Code 323
Part 3 -- Classification and coverage of
pipelines
4. Pending applications for the classification of
pipelines lapse 324
5. Old scheme coverage determinations 324
6. Old scheme covered transmission pipelines 324
7. Old scheme covered distribution pipelines 324
8. Pending coverage applications under old scheme
(before NCC recommendation) 325
9. Pending relevant Minister decisions in relation to
coverage under old scheme 325
10. Pending relevant Minister decisions in relation to
coverage that are reviewed under old scheme 326
page xxv
National Gas Access (Western Australia) Bill 2008
Contents
11. Pending old scheme coverage determinations
where no applications for review under old scheme 328
12. Pending old scheme coverage determinations
where applications for review under old scheme on
foot 328
13. Pending old scheme no-coverage determinations
where no applications for review under old scheme 329
14. Pending old scheme no-coverage determinations
where applications for review under old scheme on
foot 330
15. Pending coverage revocation applications under
old scheme (before NCC recommendation) 331
16. Pending relevant Minister decisions in relation to
coverage revocation under old scheme 331
17. Pending relevant Minister decisions in relation to
coverage revocation that are reviewed under old
scheme 332
18. Pending old scheme coverage revocation
determinations where no applications for review
under old scheme 334
19. Pending old scheme coverage revocation
determinations where applications for review
under old scheme on foot 335
20. Pending old scheme coverage non-revocation
determinations where no applications for review
under old scheme 336
21. Pending old scheme coverage non-revocation
determinations where applications for review
under old scheme on foot 337
22. Binding no-coverage determinations 338
23. Pending applications for binding no-coverage
determinations (before NCC recommendation) 338
24. Pending relevant Minister decisions for binding
no-coverage determinations under old scheme 339
25. Pending relevant Minister decisions in relation to
binding no-coverage determinations that are
reviewed under old scheme 340
Part 4 -- Access arrangements
26. Current access arrangements (other than old
scheme limited access arrangements) 341
page xxvi
National Gas Access (Western Australia) Bill 2008
Contents
27. Old scheme limited access arrangements 342
28. Access arrangements submitted but not approved
or rejected before repeal of old scheme 342
29. Access arrangement revisions submitted but not
approved or rejected before repeal of old scheme 343
30. Certain provisions of the Gas Code to continue to
apply to current and proposed access arrangements 344
31. Certain decisions relating to certain access
arrangements are reviewable regulatory decisions
for purposes of Chapter 8 Part 5 of the Law 345
32. Limited access arrangements submitted but not
approved before repeal of old scheme 346
33. Extensions and expansions policies 347
34. Queuing policies 347
Part 5 -- Price regulation exemptions
35. Old scheme price regulation exemptions 347
36. Pending applications for price regulation
exemptions 348
37. Pending Commonwealth Minister decisions for
price regulation exemptions 348
Part 6 -- Structural and operational separation
(ring fencing)
38. Definitions 349
39. Compliance with certain old scheme ring fencing
requirements sufficient compliance for 6 month
period 350
40. Existing waivers of ring fencing obligations 350
41. Additional ring fencing obligations 351
Part 7 -- Access disputes
42. Non-finalised access disputes 351
Part 8 -- Investigations and proceedings
43. Investigations into breaches and possible breaches
of the old access law or Gas Code 352
44. AER may conduct investigations into breaches or
possible breaches of Gas Pipelines Access Law not
investigated by a relevant Regulator 353
45. AER may bring proceedings in relation to breaches
of old access law and Gas Code 353
page xxvii
National Gas Access (Western Australia) Bill 2008
Contents
Part 9 -- Associate contracts
46. Pending associate contract approvals that are
approved after commencement day 354
47. Pending associate contracts approvals that are not
approved 354
48. Approved associate contracts 356
Part 10 -- Other
49. Pending and final tender approval requests lapse 356
50. Decisions approving final approval requests 356
51. Rights under certain change of law provisions in
agreements or deeds not to be triggered 357
52. References to relevant Regulator in access
arrangements 357
53. Old scheme classifications and scheme participant
determinations 357
Defined Terms
page xxviii
Western Australia
LEGISLATIVE ASSEMBLY
National Gas Access (Western Australia) Bill
2008
A Bill for
An Act to establish a framework to enable third parties to gain
access to certain gas pipeline services; to amend the Gas Pipelines
Access (Western Australia) Act 1998 and various other Acts; and for
other purposes.
The Parliament of Western Australia enacts as follows:
page 1
National Gas Access (Western Australia) Bill 2008
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the National Gas Access (Western Australia) Act 2008.
2. Commencement
5 This Act comes into operation as follows:
(a) sections 1 and 2 -- on the day on which this Act
receives the Royal Assent;
(b) the rest of the Act -- on a day fixed by proclamation,
and different days may be fixed for different provisions.
10 3. Terms used in this Act
(1) In this Act --
"National Gas Access (Western Australia) Law" means the
provisions applying because of section 7;
"National Gas Access (Western Australia) Regulations"
15 means the provisions applying because of section 8;
"South Australian Act" means the National Gas (South
Australia) Act 2008 of South Australia as amended from
time to time.
(2) Words and expressions used in the National Gas Access
20 (Western Australia) Law (whether or not defined in
section 9(1)) 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.
25 4. Crown bound
This Act, the National Gas Access (Western Australia) Law and
the National Gas Access (Western Australia) Regulations bind
the Crown in right of the State and, so far as the legislative
power of the Parliament permits, the Crown in all its other
30 capacities.
page 2
National Gas Access (Western Australia) Bill 2008
Preliminary Part 1
s. 5
5. Application to coastal waters
(1) This Act, the National Gas Access (Western Australia) Law and
the National Gas Access (Western Australia) Regulations apply
in the coastal waters of this State as if the coastal waters were
5 within the limits of the State.
(2) In this section --
"adjacent area in respect of the State" means the adjacent
area of this jurisdiction under the National Gas Access
(Western Australia) Law (as defined in section 9(1) of this
10 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
15 It is the intention of the Parliament that this Act, the National
Gas Access (Western Australia) Law and the National Gas
Access (Western Australia) Regulations should, so far as
possible, operate to the full extent of the extra-territorial
legislative power of the State.
20 6A. Extension to certain pipelines for hauling gas other than
natural gas
(1) The National Gas Access (Western Australia) Law and the
National Gas Access (Western Australia) Regulations apply to a
pipeline for hauling gas other than natural gas if the pipeline
25 constitutes or is part of a system for which a licence is in force
under Part 2A of the Energy Coordination Act 1994.
(2) Subsection (1) has effect --
(a) despite the provisions of the National Gas Access
(Western Australia) Law and the National Gas Access
30 (Western Australia) Regulations; and
(b) as if, for the purposes of that subsection, a reference in
that Law and those Regulations to natural gas were
page 3
National Gas Access (Western Australia) Bill 2008
Part 1 Preliminary
s. 6B
amended to include a reference to gas other than natural
gas.
(3) In this section --
"gas other than natural gas" means substances which --
5 (a) are in a gaseous state at standard temperature and
pressure; and
(b) consist of --
(i) naturally occurring hydrocarbons; or
(ii) a naturally occurring or manufactured mixture
10 of hydrocarbons and non hydrocarbons, the
principal constituent of which is propane,
propene, butanes, butenes or a mixture of all
or any of those substances or kinds of
substances.
15 6B. Interpretation Act 1984 does not apply
(1) The Interpretation Act 1984 does not apply to the National Gas
Access (Western Australia) Law, to regulations under Part 3, or
to Rules under the National Gas Access (Western Australia)
Law.
20 (2) Despite subsection (1), section 25 of the Interpretation Act 1984
applies to the making of regulations under Part 3.
page 4
National Gas Access (Western Australia) Bill 2008
National Gas Access (Western Australia) Law and its Part 2
regulations
s. 7
Part 2 -- National Gas Access (Western Australia)
Law and its regulations
7. National Gas Access (Western Australia) Law
(1) The Western Australian National Gas Access Law text --
5 (a) applies as a law of Western Australia; and
(b) as so applying may be referred to as the National Gas
Access (Western Australia) Law.
(2) In subsection (1) --
"Western Australian National Gas Access Law text" means
10 the text that results from modifying the National Gas Law,
as set out in the South Australian Act Schedule for the time
being in force, to give effect to section 7A(3) and (4),
Schedule 1, and any regulations made under section 7B.
7A. Amendments to Schedule to South Australian Act
15 (1) This section applies if, after the day on which the South
Australian Act receives the Royal Assent, the Parliament of
South Australia enacts a provision to make an amendment to the
Schedule to the South Australian Act as in force from time to
time (an "SA Schedule amendment").
20 (2) The Minister may by order declare that an SA Schedule
amendment is relevant to the Western Australian National Gas
Access Law text.
(3) If the Minister has not declared that an SA Schedule amendment
is relevant, the Western Australian National Gas Access Law
25 text remains as if the amendment had not been made.
(4) If the Minister has declared that an SA Schedule amendment is
relevant, the Western Australian National Gas Access Law text
remains, until the beginning of the day fixed by subsection (5),
as if the amendment had not been made.
page 5
National Gas Access (Western Australia) Bill 2008
Part 2 National Gas Access (Western Australia) Law and its
regulations
s. 7B
(5) The day fixed is the day on which the order is published in the
Government Gazette unless a later day is specified in the order,
in which case it is the day specified.
(6) Subsection (4) does not give an SA Schedule amendment any
5 earlier effect in this State than it has in South Australia.
7B. Regulations making consequential modifications
The Governor may make regulations under this section to make
modifications that are necessary or expedient to deal with
consequences of giving effect to section 7A(3) or (4) or
10 Schedule 1.
8. National Gas Access (Western Australia) Regulations
The regulations in force for the time being under Part 3 --
(a) apply as regulations in force for the purposes of the
National Gas Access (Western Australia) Law; and
15 (b) as so applying may be referred to as the National Gas
Access (Western Australia) Regulations.
9. Terms used in National Gas Access (Western Australia)
Law and its regulations
(1) In the National Gas Access (Western Australia) Law and the
20 National Gas Access (Western 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
25 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;
30 "Court" means the Supreme Court of Western Australia;
page 6
National Gas Access (Western Australia) Bill 2008
National Gas Access (Western Australia) Law and its Part 2
regulations
s. 9
"designated Minister" means the Minister to whom the
administration of this Act has been committed;
"dispute resolution body" means --
(a) in relation to an ERA pipeline, the WA arbitrator;
5 (b) in relation to any other pipeline, the Australian
Energy Regulator established by section 44AE of the
Trade Practices Act 1974 of the Commonwealth;
"ERA pipeline" means a pipeline other than --
(a) an international pipeline; or
10 (b) any other pipeline for which section 2 of the National
Gas Access (Western Australia) Law defines the
"relevant Minister" to mean a person other than the
Minister responsible for the administration of
this Act;
15 "Legislature of this jurisdiction" means the Parliament of
Western Australia;
"National Gas Law" or "this Law" means the National Gas
Access (Western Australia) Law;
"regulator" means --
20 (a) in relation to an ERA pipeline, the ERA;
(b) in relation to any other pipeline, the Australian
Energy Regulator established by section 44AE of the
Trade Practices Act 1974 of the Commonwealth;
"this jurisdiction" means the State of Western Australia;
25 "WA arbitrator" means the Western Australian Gas Disputes
Arbitrator under Part 6 Division 3 of the Energy
Arbitration and Review Act 1998.
(2) A pipeline that is an offshore Western Australian pipeline as
defined in section 3(1) of the Australian Energy Market
30 Act 2004 of the Commonwealth is to be regarded as being
situated wholly within Western Australia for the purpose of
determining who is the relevant Minister under the National Gas
Access (Western Australia) Law.
page 7
National Gas Access (Western Australia) Bill 2008
Part 2 National Gas Access (Western Australia) Law and its
regulations
s. 9
(3) The Acts Interpretation Act 1915, and other Acts, of South
Australia do not apply to the National Gas Law as set out in the
Schedule to the South Australian Act in its application, with
modifications, as a law of Western Australia.
page 8
National Gas Access (Western Australia) Bill 2008
Regulations for the National Gas Access (Western Australia) Part 3
Law
s. 10
Part 3 -- Regulations for the National Gas Access
(Western Australia) Law
10. Making regulations
(1) The Governor acting with the advice and consent of the
5 Executive Council may make regulations contemplated by, or
necessary or expedient for giving effect to, the National Gas
Access (Western Australia) Law.
(2) Without limiting subsection (1), the regulations may prescribe
fees in respect of any matter under the National Gas Access
10 (Western Australia) 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
15 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
20 pipelines to be designated pipelines for the purposes of the
definition of "designated pipeline" in section 2 of the National
Gas Access (Western Australia) Law, the Governor cannot
make another regulation that prescribes any other pipeline to be
a designated pipeline.
25 (5) Regulations under this Part may be made only on the unanimous
recommendation of the Ministers of the participating
jurisdictions.
(6) Regulations under this Part have to be published in the
Government Gazette.
page 9
National Gas Access (Western Australia) Bill 2008
Part 3 Regulations for the National Gas Access (Western Australia)
Law
s. 11
11. Regulations may deal with transitional matters
(1) Without limiting the generality of section 10, the regulations
may deal with matters of a transitional nature relating to the
transition from the application of provisions of the Gas
5 Pipelines Access Law to the application of provisions of the
National Gas Access (Western Australia) 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
10 day on which the regulations containing the provision are made,
not being a time earlier than the commencement of this section.
(3) If a provision of the regulations 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 published in the
15 Government Gazette, 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 Gas
20 Pipelines Access Law or the National Gas Access
(Western Australia) Law) existing before the day of
publication of those regulations; or
(b) to impose liabilities on any person (other than liabilities
imposed on a Minister of a participating jurisdiction or
25 an entity involved in the administration of the Gas
Pipelines Access Law or the National Gas Access
(Western Australia) Law) in respect of anything done or
omitted to be done before the day of publication of those
regulations.
30 (4) In this section --
"Gas Pipelines Access Law" has the meaning that the term had
under section 3(1) of the Gas Pipelines Access (Western
Australia) Act 1998 before the commencement of this
section;
page 10
National Gas Access (Western Australia) Bill 2008
Regulations for the National Gas Access (Western Australia) Part 3
Law
s. 11
"matters of a transitional nature" includes matters of an
application or savings nature;
"National Gas Access (Western Australia) Law" means the
provisions applying from time to time because of section 7,
5 and it includes Rules made and in force under those
provisions from time to time.
page 11
National Gas Access (Western Australia) Bill 2008
Part 4 Cross vesting of functions and powers
s. 12
Part 4 -- Cross vesting of functions and powers
12. Conferral of powers on Commonwealth Minister and
Commonwealth bodies to act in this State
(1) The Commonwealth Minister and the Commonwealth bodies
5 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 subsection (1) --
10 "Commonwealth bodies" means any of the following:
(a) the AER;
(b) the NCC;
(c) the Tribunal.
13. Conferral of powers on Ministers of other participating
15 States and Territories to act in this State
The Minister of another 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
20 jurisdiction.
14. Conferral of functions or powers on State bodies
If the national gas legislation of another participating
jurisdiction confers a function or power on the Minister or
another agency or instrumentality of this State constituted by a
25 law of this State, the Minister or the other agency or
instrumentality --
(a) may perform that function or exercise that power; and
(b) may do all things necessary or expedient to be done in
connection with the performance or exercise of that
30 function or power.
page 12
National Gas Access (Western Australia) Bill 2008
General Part 5
s. 15
Part 5 -- General
15. 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 matter.
10 (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
15 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
20 (b) that the Minister and the Treasurer declare from time
to time, by order notice of which is published in the
Government Gazette, to be an exempt matter for the
purposes of this section.
16. Actions in relation to cross boundary pipelines
25 (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 that term has in that
30 legislation in relation to action taken by, or in relation
to, a relevant Minister,
page 13
National Gas Access (Western Australia) Bill 2008
Part 5 General
s. 17
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
5 meaning that term has in that other legislation; or
(d) by the Court within the meaning that term has in that
other legislation,
as the case requires.
(2) Despite subsection (1), no proceeding for judicial review or for
10 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
15 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
20 (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 --
25 "cross boundary pipeline" means --
(a) a cross boundary transmission pipeline; or
(b) a cross boundary distribution pipeline.
17. Conferral of functions and powers on Commonwealth
bodies
30 (1) Clause 2 of Schedule 2 to the National Gas Access (Western
Australia) Law has effect in relation to the operation of any
page 14
National Gas Access (Western Australia) Bill 2008
General Part 5
s. 17
provision of this Act, or any regulation forming part of the
National Gas Access (Western Australia) Regulations, as if the
provision or regulation formed part of the National Gas Access
(Western Australia) Law.
5 (2) Subsection (1) does not limit the effect that a provision or
regulation would validly have apart from the subsection.
page 15
National Gas Access (Western Australia) Bill 2008
Part 6 Other local provisions
Division 1 Economic Regulation Authority
s. 18
Part 6 -- Other local provisions
Division 1 -- Economic Regulation Authority
18. Expertise of Director of Energy Safety to be used
In performing its functions under this Act the ERA is to make
5 appropriate use of the expertise of the Director of Energy Safety
under the Energy Coordination Act 1994 in relation to safety or
technical standards in the gas supply industry.
Division 2 -- Miscellaneous
19. Transitional provisions for Kalgoorlie to Kambalda pipeline
10 (1) This section applies to the pipeline to which licence PL27,
granted under the Petroleum Pipelines Act 1969, applies.
(2) A service provider has a period of 6 months after the day on
which section 31 comes into operation (the "transitional
period") within which to --
15 (a) submit to the ERA an access arrangement; or
(b) apply for a determination that the pipeline be no longer a
covered pipeline; or
(c) apply under section 112 of the National Gas Access
(Western Australia) Law for a light regulation
20 determination.
(3) Despite section 111(b) of the National Gas Access (Western
Australia) Law, an application may be made in accordance with
subsection (2)(c), even though there is no applicable access
arrangement for the pipeline, and Chapter 3 Part 2 Division 1
25 Subdivision 1 of that Law applies to the application.
20. Regulations
(1) Without limiting the power to make regulations under Part 3,
the Governor acting with the advice and consent of the
page 16
National Gas Access (Western Australia) Bill 2008
Other local provisions Part 6
Miscellaneous Division 2
s. 21
Executive Council may make other regulations contemplated
by, or necessary or expedient for giving effect to, this Act.
(2) Regulations under subsection (1) may make provision for and in
relation to the imposition and payment of fees and charges in
5 connection with the performance of functions the arbitrator has
under this Act, to the extent that the costs connected with
performing those functions are not covered by fees under the
National Gas Access (Western Australia) Regulations.
(3) If it is inappropriate to prescribe a set fee or charge in
10 connection with the performance of a particular function the
regulations may provide for the method of calculating the fee or
charge, including calculation according to the cost of
performing that function.
(4) Despite the National Gas Access (Western Australia) Law or
15 Rules made under that Law, regulations under subsection (1)
may make provision for further matters to affect the setting of a
reference tariff for a reference service provided by means of a
distribution pipeline to the extent that the service is used for the
supply of natural gas to an end user prescribed by the
20 regulations to be a small use customer for the purposes of this
subsection.
(5) Regulations under subsection (1) may prescribe a period ending
not later than 31 December 2031 as a period during which the
fixed principle referred to in clause 7.13(a)(ii) of the Revised
25 Access Arrangement for the Dampier to Bunbury Natural Gas
Pipeline dated 21 November 2006 applies despite anything in
the National Gas Access (Western Australia) Law or Rules
made under that Law, and during a period prescribed the fixed
principle applies accordingly.
30 21. Review of Act
(1) The Minister is to cause a review to be carried out of the
operation and effectiveness of this Act as soon as is practicable
after the review day described in subsection (2) and, in the
page 17
National Gas Access (Western Australia) Bill 2008
Part 6 Other local provisions
Division 2 Miscellaneous
s. 21
course of that review, consideration is to be given, and regard is
to be had, to --
(a) the effectiveness of the operations of the ERA and the
WA arbitrator; and
5 (b) the need for the continuation of section 20(4) and (5);
and
(c) any other matters that appear to the Minister to be
relevant to the operation and effectiveness of this Act.
(2) The review day is 1 July 2013 unless, before that day a licence
10 is granted under the Petroleum Pipelines Act 1969 for a pipeline
that is to be partly in the jurisdictional area of this State and
partly in the jurisdictional area of the Northern Territory or
South Australia, in which case the review day is the day on
which the licence is granted.
15 (3) The Minister is to prepare a report based on the review and, as
soon as is practicable after the report is prepared, and in any
event not more than 12 months after the review day described in
subsection (2), cause it to be laid before each House of
Parliament.
page 18
National Gas Access (Western Australia) Bill 2008
Various Acts amended Part 7
This Act amended when Offshore Petroleum Act 2006 Division 1
(Commonwealth) commences
s. 22
Part 7 -- Various Acts amended
Division 1 -- This Act amended when Offshore Petroleum
Act 2006 (Commonwealth) commences
22. The Act amended
5 The amendments in this Division are to this Act.
23. Section 9 amended
Section 9(1) is amended by deleting the definitions of "adjacent
area of this jurisdiction" and "adjacent area of another
participating jurisdiction" and inserting instead --
10 "
"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
15 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
20 the Commonwealth;
".
Division 2 -- Gas Pipelines Access (Western Australia) Act 1998
24. The Act amended
The amendments in this Division are to the Gas Pipelines
25 Access (Western Australia) Act 1998.
25. Long title replaced
The long title is deleted and the following long title is inserted
instead --
"
30 An Act to provide for a review board and for an official who
may arbitrate certain disputes, and for related purposes.
".
page 19
National Gas Access (Western Australia) Bill 2008
Part 7 Various Acts amended
Division 2 Gas Pipelines Access (Western Australia) Act 1998
s. 26
26. Preamble deleted
The preamble is deleted.
27. Section 1 amended
Section 1 is amended by deleting "Gas Pipelines Access
5 (Western Australia)" and inserting instead --
" Energy Arbitration and Review ".
28. Sections 2 to 4 repealed
Sections 2 to 4 are repealed.
29. Section 5 amended
10 Section 5 is amended by deleting "bind" and all of the section
before it and inserting instead --
" This Act binds ".
30. Sections 6 to 8 repealed
Sections 6 to 8 are repealed.
15 31. Parts 2 to 5 repealed
Parts 2 to 5 are repealed.
32. Heading to Part 6 replaced
The heading to Part 6 is deleted and the following heading is
inserted instead --
20 "
Part 6 -- Review board and arbitrator
".
33. Part 6 Division 1 repealed
Part 6 Division 1 is repealed.
page 20
National Gas Access (Western Australia) Bill 2008
Various Acts amended Part 7
Gas Pipelines Access (Western Australia) Act 1998 Division 2
s. 34
34. Heading to Part 6 Division 2 replaced
The heading to Part 6 Division 2 is deleted and the following
heading is inserted instead --
"
5 Division 2 -- Review board
".
35. Section 49 amended
Section 49 is amended in the definition of "Board" by deleting
"Western Australian Gas Review Board" and inserting
10 instead --
" Western Australian Electricity Review Board ".
36. Heading to Part 6 Division 2 Subdivision 2 replaced
The heading to Part 6 Division 2 Subdivision 2 is deleted and
the following heading is inserted instead --
15 "
Subdivision 2 -- Western Australian Electricity Review
Board established
".
37. Section 50 amended
20 (1) Section 50(1) is amended by deleting "Western Australian Gas
Review Board" and inserting instead --
" Western Australian Electricity Review Board ".
(2) Section 50 is amended by inserting after subsection (1) --
"
25 (2A) The Board has functions under the Electricity Industry
Act 2004.
".
page 21
National Gas Access (Western Australia) Bill 2008
Part 7 Various Acts amended
Division 2 Gas Pipelines Access (Western Australia) Act 1998
s. 38
38. Section 57 amended
Section 57(1) is amended by deleting "the Gas Pipelines Access
(Western Australia) Law and".
39. Section 59 amended
5 Section 59(4) is amended by deleting "Subject to the Gas
Pipelines Access (Western Australia) Law, a" and inserting
instead --
" A ".
40. Section 61 amended
10 Section 61 is amended in the definition of "arbitrator" by
deleting "Gas" and inserting instead --
" Energy ".
41. Heading to Part 6 Division 3 Subdivision 2 amended
The heading to Part 6 Division 3 Subdivision 2 is amended by
15 deleting "Gas" and inserting instead --
" Energy ".
42. Section 62 amended
Section 62(1) is amended by deleting "Gas" and inserting
instead --
20 " Energy ".
43. Section 73 amended
Section 73(1) is amended as follows:
(a) by deleting paragraphs (a) and (c) and inserting
instead --
25 "
(a) by or under the National Gas Access (Western
Australia) Act 2008; or
page 22
National Gas Access (Western Australia) Bill 2008
Various Acts amended Part 7
Gas Pipelines Access (Western Australia) Act 1998 Division 2
s. 44
(b) by or under the Electricity Industry Act 2004.
";
(b) by deleting "and" after paragraph (d) and inserting
instead --
5 " or ".
44. Section 74 amended
After section 74(2) the following subsections are inserted --
"
(3) Regulations referred to in subsection (1) may make
10 provision for and in relation to the imposition and
payment of fees and charges in connection with the
performance of functions the arbitrator has under those
regulations.
(4) If it is inappropriate to prescribe a set fee or charge in
15 connection with the performance of a particular
function the regulations may provide for the method of
calculating the fee or charge, including calculation
according to the cost of performing that function.
".
20 45. Section 76 amended
Section 76 is amended as follows:
(a) by deleting "under the Code" and inserting instead --
"
in performing functions referred to in section 73(1)
25 ";
(b) by deleting "local Regulator as defined in section 11."
and inserting instead --
"
Economic Regulation Authority established by the
30 Economic Regulation Authority Act 2003.
".
page 23
National Gas Access (Western Australia) Bill 2008
Part 7 Various Acts amended
Division 2 Gas Pipelines Access (Western Australia) Act 1998
s. 46
46. Section 77 amended
Section 77 is amended by deleting "provided for by the Gas
Pipelines Access (Western Australia) Law and the regulations"
and inserting instead --
5 " involved in performing the arbitrator's functions ".
47. Section 81 amended
Section 81 is amended by deleting "under this Act".
48. Section 82 amended
(1) Section 82(2) is amended by inserting after "called" --
10 "
the "Western Australian Energy Disputes Arbitrator
Account", and it is to be a continuation of the account
formerly called
".
15 (2) Section 82(3)(a)(ii) is deleted and the following subparagraph is
inserted instead --
"
(ii) fees and charges payable to the
arbitrator or the Board in connection
20 with the performance of the functions of
the arbitrator or the Board;
".
49. Section 87 repealed
Section 87 is repealed.
25 50. Section 88 repealed
Section 88 is repealed.
51. Parts 7 and 8 repealed
Parts 7 and 8 are repealed.
page 24
National Gas Access (Western Australia) Bill 2008
Various Acts amended Part 7
Other Acts amended Division 3
s. 52
52. Schedules repealed
Schedule 1 and its Appendix and Schedules 2 and 3 are
repealed.
Division 3 -- Other Acts amended
5 53. Constitution Acts Amendment Act 1899 amended
(1) The amendments in this section are to the Constitution Acts
Amendment Act 1899.
(2) Schedule V Part 1 Division 1 is amended in the item for the
Western Australian Gas Disputes Arbitrator as follows:
10 (a) by deleting "Gas Disputes" and inserting instead --
" Energy Disputes ";
(b) by deleting "Gas Pipelines Access (Western Australia)"
and inserting instead --
" Energy Arbitration and Review ".
15 54. Economic Regulation Authority Act 2003 amended
(1) The amendments in this section are to the Economic Regulation
Authority Act 2003.
(2) Section 25 is amended as follows:
(a) by deleting paragraph (c) and inserting instead --
20 "
(c) the functions it is given by or under the
National Gas Access (Western Australia) Act
2008; and
";
25 (b) by inserting after each of paragraphs (a), (b), and (d) --
" and ".
page 25
National Gas Access (Western Australia) Bill 2008
Part 7 Various Acts amended
Division 3 Other Acts amended
s. 55
(3) Section 28(3)(b) is amended by deleting "referred to in
section 36(1) of the Gas Pipelines Access (Western Australia)
Act 1998 or" and inserting instead --
"
5 given by or under the National Gas Access
(Western Australia) Act 2008 or referred to in
".
(4) Section 28(5)(b) is amended by deleting "Gas Pipelines Access
(Western Australia) Act 1998, must send a copy of the direction
10 to the Code Registrar within the meaning of that Act." and
inserting instead --
"
National Gas Access (Western Australia) Act
2008, must send a copy of the direction to the
15 Australian Energy Market Commission
established by section 5 of the Australian
Energy Market Commission Establishment
Act 2004 of South Australia.
".
20 (5) Section 32(1) is amended by deleting "Gas Pipelines Access
(Western Australia) Law" and inserting instead --
" National Gas Access (Western Australia) Law ".
55. Electricity Industry Act 2004 amended
(1) The amendments in this section are to the Electricity Industry
25 Act 2004.
(2) Section 3 is amended in the definition of "arbitrator" and in the
definition of "Board" by deleting "Gas Pipelines Access
(Western Australia) Act 1998" and inserting instead --
" Energy Arbitration and Review Act 1998 ".
30 (3) Section 113 is repealed.
page 26
National Gas Access (Western Australia) Bill 2008
Various Acts amended Part 7
Other Acts amended Division 3
s. 55
(4) Section 125(2)(b) is deleted and the following paragraph is
inserted instead --
"
(b) make other provisions that it is necessary or
5 convenient to make,
".
(5) After section 125(2) the following subsection is inserted --
"
(3A) Regulations that, immediately before the day on which
10 the National Gas Access (Western Australia) Act 2008
section 55(4) comes into operation, apply provisions of
the Gas Pipelines Access (Western Australia) Act 1998
continue to have the effect they had immediately
before that day until the contrary intention appears
15 from a regulation made after that day.
".
(6) Section 130(1) is amended in the definition of "gas pipelines
access provisions" by inserting before the full stop --
"
20 as in force immediately before the day on which
the National Gas Access (Western Australia) Act
2008 section 52 repealed it
".
(7) Section 130(8) is amended by deleting "Gas Pipelines Access
25 (Western Australia)" and inserting instead --
" Energy Arbitration and Review ".
(8) Section 130(9) is repealed and the following subsection is
inserted instead --
"
30 (9) For proceedings to which subsection (8) extends the
provisions described in that subsection, section 57(1)
and section 59(4) of those provisions apply only to the
page 27
National Gas Access (Western Australia) Bill 2008
Part 7 Various Acts amended
Division 3 Other Acts amended
s. 56
extent that it is consistent with the Code for them to
apply.
".
(9) Section 133(1) is amended by inserting before "in connection
5 with" --
"
in relation to the imposition and payment of fees and
charges in connection with any matter under this Act,
including
10 ".
56. Energy Coordination Act 1994 amended
(1) The amendments in this section are to the Energy Coordination
Act 1994.
(2) Section 11J is repealed.
15 (3) Section 11M(5) is amended by deleting paragraph (a) and "or"
after it and inserting instead --
"
(a) the National Gas Access (Western Australia)
Law; or
20 ".
(4) Section 11V(2) is repealed and the following subsection is
inserted instead --
"
(2) A licence does not have effect to the extent that it
25 would be inconsistent with the National Gas Access
(Western Australia) Law.
".
(5) Section 11ZAC(4)(b) is deleted and the following paragraph is
inserted instead --
30 "
(b) an access arrangement under the National Gas
Access (Western Australia) Law.
".
page 28
National Gas Access (Western Australia) Bill 2008
Various Acts amended Part 7
Other Acts amended Division 3
s. 57
(6) Schedule 1A is amended in paragraph (a) by deleting "Gas
Pipelines Access (Western Australia) Law" and inserting
instead --
" National Gas Access (Western Australia) Law ".
5 57. Financial Management Act 2006 amended
(1) The amendments in this section are to the Financial
Management Act 2006.
(2) Schedule 1 is amended in the item "Western Australian Gas
Disputes Arbitrator" by deleting "Gas" and inserting instead --
10 " Energy ".
58. Freedom of Information Act 1992 amended
(1) The amendments in this section are to the Freedom of
Information Act 1992.
(2) The Glossary clause 7A(1) is repealed and the following
15 subclause is inserted instead --
"
(1) In this clause --
"access regulation functions" means the functions given
by or under the National Gas Access (Western
20 Australia) Act 2008;
"arbitrator" has the meaning given in the Energy
Arbitration and Review Act 1998 section 61;
"Authority" means the Economic Regulation Authority
established by the Economic Regulation Authority
25 Act 2003;
"Board" has the meaning given in the Energy Arbitration
and Review Act 1998 section 49.
".
page 29
National Gas Access (Western Australia) Bill 2008
Part 7 Various Acts amended
Division 3 Other Acts amended
s. 59
59. Parliamentary Commissioner Act 1971 amended
(1) The amendments in this section are to the Parliamentary
Commissioner Act 1971.
(2) Schedule 1 is amended by deleting "referred to in section 36(1)
5 of the Gas Pipelines Access (Western Australia) Act 1998 and"
and inserting instead --
"
given by or under the National Gas Access
(Western Australia) Act 2008 or referred to in
10 ".
60. Petroleum Pipelines Act 1969
(1) The amendment in this section is to the Petroleum Pipelines
Act 1969.
(2) Section 5A is repealed.
page 30
National Gas Access (Western Australia) Bill 2008
Some modifications to National Gas Law as in Schedule to Schedule 1
South Australian Act
cl. 1
Schedule 1 -- Some modifications to National Gas Law as
in Schedule to South Australian Act
[s. 7(2)]
1. Purpose of this Schedule
5 This Schedule describes modifications to the National Gas Law, as set
out in the South Australian Act Schedule for the time being in force,
that, together with other modifications described in the definition of
"Western Australian National Gas Access Law text" in section 7(2) of
this Act, result in the text that section 7(1) applies as the National Gas
10 Access (Western Australia) Law.
2. Meaning of "underlying National Gas Law"
In this Schedule, unless a contrary intention appears --
"underlying National Gas Law" means the National Gas Law, as set
out in the South Australian Act Schedule for the time being in
15 force.
3. Section 1 of underlying National Gas Law modified
Section 1 of the underlying National Gas Law is modified by inserting
after "National Gas" --
" Access ".
20 4. Section 2 modified
(1) Section 2 of the underlying National Gas Law is modified as follows:
(a) in the definition of "AER" by inserting after
"Commonwealth" --
"
25 except if section 2A requires the term to be given a
different meaning
";
(b) in the definition of "Gas Code" by deleting "in force from
time to time before the commencement of section 20 of the
page 31
National Gas Access (Western Australia) Bill 2008
Schedule 1 Some modifications to National Gas Law as in Schedule to
South Australian Act
cl. 4
National Gas (South Australia) Act 2008 of South Australia;"
and inserting instead --
"
amended and applying from time to time before
5 the commencement of section 31 of the National
Gas Access (Western Australia) Act 2008 as a law
of Western Australia;
".
(2) Section 2 of the underlying National Gas Law is modified by deleting
10 the definition of "dispute resolution body" and inserting instead --
"
"dispute resolution body" has the meaning given to
that term in section 9(1) of the National Gas
Access (Western Australia) Act 2008;
15 ".
(3) Section 2 of the underlying National Gas Law is modified by deleting
the definition of "old access law" and inserting instead --
"
"old access law" means Schedule 1 to the Gas
20 Pipelines Access (Western Australia) Act 1998 as
in force from time to time before the
commencement of section 31 of the National Gas
Access (Western Australia) Act 2008;
".
25 (4) Section 2 of the underlying National Gas Law is modified by deleting
the definition of "Regulations" and inserting instead --
"
"Regulations" means the regulations made under
Part 3 of the National Gas Access (Western
30 Australia) Act 2008 that apply as a law of this
jurisdiction;
".
page 32
National Gas Access (Western Australia) Bill 2008
Some modifications to National Gas Law as in Schedule to Schedule 1
South Australian Act
cl. 5
(5) Section 2 of the underlying National Gas Law is modified by inserting
in their appropriate alphabetical positions the following definitions --
"
"regulator" has the meaning given to that term in
5 section 9(1) of the National Gas Access (Western
Australia) Act 2008;
"WA arbitrator" has the meaning given to that term
in section 9(1) of the National Gas Access
(Western Australia) Act 2008.
10 ".
5. Section 2A inserted
The underlying National Gas Law is modified by inserting after
section 2 the following section --
"
15 2A. Meaning of AER modified
(1) In this Law, other than in the definition of "AER" in
section 2, a reference to the AER is to be read as a
reference to the regulator (whether the ERA or the
AER) except to the extent that subsection (2) gives a
20 different meaning.
(2) To the extent to which a reference to the AER is
capable of being read as a reference to the Australian
Energy Regulator established by section 44AE of the
Trade Practices Act 1974 of the Commonwealth acting
25 as the disputes resolution body, the term is to be read
as having or including that meaning.
".
page 33
National Gas Access (Western Australia) Bill 2008
Schedule 1 Some modifications to National Gas Law as in Schedule to
South Australian Act
cl. 6
6. Chapter 1 Part 1A inserted
The underlying National Gas Law is modified by inserting after
Chapter 1 Part 1 the following Part --
"
5 Part 1A -- Postponement of Natural Gas Services
Bulletin Board provisions
20A. Minister may fix day on which provisions apply
To the extent that a provision of this Law relates to the
Natural Gas Services Bulletin Board, the provision
10 does not apply before a day is fixed by the Minister, by
an order notice of which is published in the
Government Gazette, as the day on and after which
provisions of this Law relating to the Natural Gas
Services Bulletin Board apply.
15 ".
7. Section 29 amended
The underlying National Gas Law is modified in section 29 by
inserting after "Commonwealth" --
"
20 or by the ERA under section 29 of the Economic
Regulation Authority Act 2003
".
8. Section 30 amended
The underlying National Gas Law is modified in section 30 as
25 follows:
(a) before "Section 44AAF" at the beginning of the section the
subsection designation "(1)" is inserted;
(b) at the end of the section the following subsection is
inserted --
30 "
(2) Without limiting section 2A, that section also applies to
section 44AAF as adopted by subsection (1) and, when
page 34
National Gas Access (Western Australia) Bill 2008
Some modifications to National Gas Law as in Schedule to Schedule 1
South Australian Act
cl. 9
the adopted section is read as if a reference in it to the
AER were a reference to the ERA, it is further
modified as follows:
(a) subsection (3)(c) of the adopted section is to be
5 read as if it were --
"
(c) the Australian Energy Regulator established
by section 44AE of the Trade Practices
Act 1974 of the Commonwealth;
10 ";
(b) subsection (6)(a)(i) of the adopted section is to
be read as if it were --
"
(i) an ERA member, a person assisting the
15 ERA in the performance of its functions
or a delegate of the ERA;
".
".
9. Chapter 2 Part 1A inserted
20 The underlying National Gas Law is modified by inserting after
Chapter 2 Part 1 the following Part --
"
Part 1A -- Functions and powers of WA arbitrator
68A. Manner in which WA arbitrator must perform or
25 exercise certain functions or powers
(1) The WA arbitrator must, in performing or exercising a
function or power that relates to an access
determination, perform or exercise that function or
power in a manner that will or is likely to contribute to
30 the achievement of the national gas objective.
page 35
National Gas Access (Western Australia) Bill 2008
Schedule 1 Some modifications to National Gas Law as in Schedule to
South Australian Act
cl. 10
(2) In addition, the WA arbitrator --
(a) must take into account the revenue and pricing
principles when making an access
determination relating to a rate or charge for a
5 pipeline service; and
(b) may take into account the revenue and pricing
principles when performing or exercising any
other function or power that relates to an access
determination, if the WA arbitrator considers it
10 appropriate to do so.
(3) For the purposes of subsection (2)(a), a reference to a
reference service in the revenue and pricing principles
must be read as a reference to a pipeline service.
".
15 10. Section 181A inserted
The underlying National Gas Law is modified by inserting after
section 181 the following section --
"
181A. Providing information for certain disputes
20 (1) If the dispute resolution body for a dispute notified
under section 181(1) is the WA arbitrator --
(a) the WA arbitrator is to inform the ERA that
notification of the dispute has been received;
and
25 (b) the WA arbitrator may request the ERA to give
the WA arbitrator any information in the ERA's
possession that is relevant to the dispute.
(2) The ERA is to give the WA arbitrator the information
requested, whether or not it is confidential and whether
30 or not it came into the ERA's possession for the
purposes of resolving the dispute.
page 36
National Gas Access (Western Australia) Bill 2008
Some modifications to National Gas Law as in Schedule to Schedule 1
South Australian Act
cl. 11
(3) If the ERA gives the WA arbitrator information that is
confidential, the ERA is to identify the nature and
extent of the confidentiality and the WA arbitrator is to
treat the information accordingly.
5 ".
11. Section 231 modified
Section 231 of the underlying National Gas Law is modified as
follows:
(a) after subsection (1) the following subsection is inserted --
10 "
(1A) When subsection (1) is read as if a reference in it to the
AER were a reference to the ERA, the subsection is to
be read as if "on behalf of the Commonwealth" had
been deleted.
15 ";
(b) after subsection (3) the following subsection is inserted --
"
(3A) When subsection (3) is read as if a reference in it to the
AER were a reference to the ERA, the subsection is to
20 be read as if "on behalf of the Commonwealth" had
been deleted.
".
12. Section 240 modified
Section 240 of the underlying National Gas Law is modified by
25 deleting "Commonwealth." and inserting instead --
"
State of Western Australia except if the order is made
on an application by the AER on behalf of the
Commonwealth, in which case it is payable to the
30 Commonwealth.
".
page 37
National Gas Access (Western Australia) Bill 2008
Schedule 1 Some modifications to National Gas Law as in Schedule to
South Australian Act
cl. 13
13. Schedule 1 modified
Schedule 1 item 82 of the underlying National Gas Law is modified
by deleting "section 20 of the National Gas (South Australia)
Act 2008 of South Australia." and inserting instead --
5 "
section 31 of the National Gas Access (Western Australia)
Act 2008 of Western Australia.
".
14. Schedule 2 modified
10 (1) Schedule 2 of the underlying National Gas Law is modified by
inserting after clause 27 the following clause --
"
27A. WA modifications of clause 27
(1) Clause 27 applies to a conferral of power by this Law before
15 the commencement of a provision of the Schedule to the
National Gas (South Australia) Act 2008 of South Australia
(the "South Australian Act Schedule") --
(a) as if references in clause 27(1) to the enactment and
commencement of this Law referred, respectively,
20 to the enactment and commencement of the South
Australian Act Schedule; and
(b) as if references in clause 27(5) and (6) to the
commencement of the relevant empowering
provision referred to the commencement of the
25 South Australian Act Schedule.
(2) Clause 27 applies to a conferral of power by this Law to the
extent that the power derives from an amendment to the
South Australian Act Schedule after that Schedule
commences --
30 (a) as if references in clause 27(2), (5) and (6) to the
commencement of the empowering provision
referred to the time when the Western Australian
National Gas Access Law text, as defined in
section 7(2) of the National Gas Access (Western
page 38
National Gas Access (Western Australia) Bill 2008
Some modifications to National Gas Law as in Schedule to Schedule 1
South Australian Act
cl. 14
Australia) Act 2008, is affected by the amendment
to the South Australian Act Schedule; and
(b) as if the reference in clause 27(3) to additional
power that would be conferred had an Act of South
5 Australia commenced referred to additional power
that would be conferred had the Western Australian
National Gas Access Law text been already affected
by the amendment; and
(c) as if clause 27(7) had been omitted.
10 ".
(2) Schedule 2 of the underlying National Gas Law is modified in
clause 34 as follows:
(a) before "In" at the beginning of the clause the
subclause designation "(1)" is inserted;
15 (b) at the end of the clause the following subclause is inserted --
"
(2) When subclause (1) is read as if a reference in it to the AER
were a reference to the ERA, the subclause is to be read as if
"an AER member, or an SES employee or acting SES
20 employee assisting the AER as mentioned in section 44AAC
of the Trade Practices Act 1974 of the Commonwealth" had
been deleted and the following had been inserted instead--
" a member of the ERA ".
".
25 (3) Schedule 2 of the underlying National Gas Law is modified by
deleting clause 50 and inserting instead --
"
50. Attempts and incitement
Section 555A(1) and (2) of The Criminal Code apply in
30 relation to a simple offence under this Law as if it were a
simple offence under The Criminal Code.
".
page 39
National Gas Access (Western Australia) Bill 2008
Schedule 1 Some modifications to National Gas Law as in Schedule to
South Australian Act
cl. 15
15. Schedule 3 modified
(1) Schedule 3 of the underlying National Gas Law is modified in
clause 1, in the definition of "commencement day", by deleting
"section 20 of the new application Act" and inserting instead --
5 "
section 31 of the National Gas Access (Western Australia)
Act 2008
".
(2) Schedule 3 of the underlying National Gas Law is modified in
10 clause 45(3)(b) by deleting "Gas Pipelines Access (South Australia)
Regulations 1999 were not revoked." and inserting instead --
"
Gas Pipelines Access (Western Australia)
Regulations 2000 were not repealed.
15 ".
page 40
National Gas Access (Western Australia) Bill 2008
Western Australian National Gas Access Law text Note
Preliminary Chapter 1
Citation and interpretation Part 1
s. 1
Note -- Western Australian National Gas Access Law text
[This note is not part of the Act. It shows the text that results from
modifying, according to the proposed Schedule 1, the National Gas
Law as set out in the proposed South Australian Act Schedule.]
Chapter 1 -- Preliminary
Part 1 -- Citation and interpretation
1. Citation
This law may be cited as the National Gas Access 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 except if section 2A requires the term to
be given a different meaning;
AER economic regulatory decision means a decision
(however described) of the AER under this Law or the
page 41
National Gas Access (Western Australia) Bill 2008
Note Western Australian National Gas Access Law text
Chapter 1 Preliminary
Part 1 Citation and interpretation
s. 2
Rules performing or exercising an AER economic
regulatory function or power;
AER economic regulatory function or power means a
function or power performed or exercised by the AER
under this Law or the Rules that relates to the economic
regulation of pipeline services provided by a service
provider--
(a) by means of; or
(b) in connection with,
a scheme pipeline and includes a function or power
performed or exercised by the AER under this Law or the
Rules that relates to--
(c) the preparation of a service provider performance
report;
(d) a ring fencing decision;
(e) an applicable access arrangement decision;
(f) an access determination (if the AER is the dispute
resolution body);
AER ring fencing determination means a determination of
the AER under section 143(1);
applicable access arrangement means a limited access
arrangement or full access arrangement that has taken
effect after being approved or made by the AER under the
Rules and includes an applicable access arrangement as
varied--
(a) under the Rules; or
(b) by an access determination as provided by this
Law or the Rules;
applicable access arrangement decision means--
(a) a full access arrangement decision; or
(b) a limited access arrangement decision;
page 42
National Gas Access (Western Australia) Bill 2008
Western Australian National Gas Access Law text Note
Preliminary Chapter 1
Citation and interpretation Part 1
s. 2
approved associate contract means an associate contract
approved by the AER under an associate contract decision;
associate in relation to a person has the same meaning it
would have under Division 2 of Part 1.2 of the
Corporations Act 2001 of the Commonwealth if
sections 13, 16(2) and 17 did not form part of that Act;
associate contract means--
(a) a contract, arrangement or understanding between
a service provider and an associate of the service
provider in connection with the provision of an
associate pipeline service; or
(b) a contract, arrangement or understanding between
a service provider and any person in connection
with the provision of an associate pipeline
service--
(i) that provides a direct or indirect benefit to
an associate; and
(ii) that is not at arm's length;
associate contract decision means a decision of the AER
under the Rules that approves or does not approve an
associate contract for the purposes of Chapter 4 Part 2
Division 5;
associate pipeline service means a pipeline service
provided by means of a pipeline other than a pipeline to
which a 15-year no coverage determination applies;
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;
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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;
(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
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(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 has the meaning given to that term
in section 9(1) of the National Gas Access (Western
Australia) Act 2008;
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;
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extension and expansion requirements means--
(a) the requirements contained in an access
arrangement that, in accordance with the Rules,
specify--
(i) the circumstances when an extension to,
or expansion of the capacity of, a covered
pipeline is to be treated as forming part of
the covered pipeline; and
(ii) whether the pipeline services provided or
to be provided by means of, or in
connection with, spare capacity arising
out of an extension to, or expansion of the
capacity of, a covered pipeline will be
subject to the applicable access
arrangement applying to the pipeline
services to which that arrangement
applies; and
(iii) whether an extension to, or expansion of
the capacity of, a covered pipeline will
affect a reference tariff, and if so, the
effect on the reference tariff; and
(b) any other requirements specified by the Rules as
extension and expansion requirements;
Note--
See also sections 18 and 19.
final Rule determination means a determination of the
AEMC under section 311;
foreign company has the same meaning as in the
Corporations Act 2001 of the Commonwealth;
foreign source means--
(a) a source beyond the outer limits of all of the
following:
(i) the adjacent area of this jurisdiction;
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(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
(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;
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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 amended and applying from time to time
before the commencement of section 31 of the National
Gas Access (Western Australia) Act 2008 as a law of
Western 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;
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;
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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
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(b) a decision of the Commonwealth Minister under
section 164;
national gas legislation means--
(a) the National Gas (South Australia) Act 2008 of
South Australia and Regulations in force under
that Act; and
(b) the National Gas (South Australia) Law; and
(c) the National Gas Access (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);
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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;
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
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(c) a no-coverage recommendation; or
(d) a price regulation exemption recommendation; or
(e) a reclassification decision; or
(f) a light regulation determination; or
(g) a decision of the NCC under Chapter 3 Part 2
Division 2 to revoke a light regulation
determination; or
(h) a decision of the NCC not to make a decision
referred to in paragraph (f) or (g); or
(i) advice under section 172;
new facility means an extension to, or expansion of the
capacity of, a covered pipeline which is to be treated as
part of the covered pipeline--
(a) in accordance with the extension and expansion
requirements contained in an applicable access
arrangement applying to the pipeline services
provided by means of that covered pipeline; or
(b) under this Law;
Note--
See also sections 18 and 19.
no-coverage recommendation means a recommendation of
the NCC under Chapter 5 Part 2;
non scheme pipeline user means a person who--
(a) is a party to a contract with a service provider
under which the service provider provides or
intends to provide a pipeline service to that person
by means of a pipeline that is not a scheme
pipeline; or
(b) has a right under an access determination to be
provided with a pipeline service by means of a
pipeline that is not a scheme pipeline;
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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 (Western Australia) Act 1998 as in force from time
to time before the commencement of section 31 of the
National Gas Access (Western Australia) Act 2008;
old scheme classification or determination means a
classification or determination under section 10 or 11 of
the old access law in force at any time before the repeal of
the old access law;
old scheme distribution pipeline means a pipeline that
was, at any time before the repeal of the old access law--
(a) a distribution pipeline as defined in that law; and
(b) a covered pipeline as defined in the Gas Code;
old scheme transmission pipeline means a pipeline that
was, at any time before the repeal of the old access law--
(a) a transmission pipeline as defined in that law; and
(b) a covered pipeline as defined in the Gas Code;
participating jurisdiction means a jurisdiction that is a
participating jurisdiction by reason of section 21;
pipeline means--
(a) a pipe or system of pipes for the haulage of natural
gas, and any tanks, reservoirs, machinery or
equipment directly attached to that pipe or system
of pipes; or
(b) a proposed pipe or system of pipes for the haulage
of natural gas, and any proposed tanks, reservoirs,
machinery or equipment proposed to be directly
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attached to the proposed pipe or system of pipes;
or
(c) a part of a pipe or system of pipes or proposed
pipe or system of pipes referred to in paragraph (a)
or (b),
but does not include--
(d) unless paragraph (e) applies, anything upstream of
a prescribed exit flange on a pipeline conveying
natural gas from a prescribed gas processing plant;
or
(e) if a connection point upstream of an exit flange on
such a pipeline is prescribed, anything upstream of
that point; or
(f) a gathering system operated as part of an upstream
producing operation; or
(g) any tanks, reservoirs, machinery or equipment
used to remove or add components to or change
natural gas (other than odourisation facilities) such
as a gas processing plant; or
(h) anything downstream of a point on a pipeline from
which a person takes natural gas for consumption
purposes;
pipeline classification criterion has the meaning given by
section 13;
pipeline coverage criteria has the meaning given by
section 15;
pipeline reliability standard means a standard imposed by
or under an Act of a participating jurisdiction, or any
instrument made or issued under or for the purposes of that
Act, relating to the reliable haulage of natural gas in that
jurisdiction;
pipeline safety duty means a duty or requirement under an
Act of a participating jurisdiction, or any instrument made
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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;
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price regulation exemption recommendation means a
recommendation of the NCC under section 162;
processable gas means a substance that--
(a) is in a gaseous state at standard temperature and
pressure; and
(b) consists of naturally occurring hydrocarbons, or a
naturally occurring mixture of hydrocarbons and
non-hydrocarbons, the principal constituent of
which is methane;
producer means a person who carries on a business of
producing natural gas;
prospective user has the meaning given by section 5;
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 Access (Western Australia) Act 2008 that
apply as a law of this jurisdiction;
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regulator has the meaning given to that term in
section 9(1) of the National Gas Access (Western
Australia) Act 2008;
regulatory information instrument means--
(a) a general regulatory information order; or
(b) a regulatory information notice;
regulatory information notice has the meaning given by
section 46;
regulatory obligation or requirement has the meaning
given by section 6;
regulatory payment has the meaning given by section 7;
relevant Minister means if, in a coverage recommendation,
no-coverage recommendation, classification decision under
the Rules or reclassification decision, the NCC determines
the pipeline is--
(a) a cross boundary transmission pipeline--the
Commonwealth Minister;
(b) a transmission pipeline situated wholly within a
participating jurisdiction--the designated
Minister;
Note--
The term designated Minister is defined in the
Act of this jurisdiction that applies this Law as a
law of this jurisdiction.
(c) a distribution pipeline situated wholly within a
participating jurisdiction--the Minister of the
participating jurisdiction;
(d) a cross boundary distribution pipeline--the
Minister of the participating jurisdiction
determined by the NCC in the recommendation as
being the participating jurisdiction with which the
cross boundary distribution pipeline is most
closely connected;
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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;
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;
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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;
WA arbitrator has the meaning given to that term in
section 9(1) of the National Gas Access (Western
Australia) Act 2008.
2A. Meaning of AER modified
(1) In this Law, other than in the definition of "AER" in
section 2, a reference to the AER is to be read as a
reference to the regulator (whether the ERA or the AER)
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except to the extent that subsection (2) gives a different
meaning.
(2) To the extent to which a reference to the AER is capable of
being read as a reference to the Australian Energy Regulator
established by section 44AE of the Trade Practices Act 1974
of the Commonwealth acting as the disputes resolution body,
the term is to be read as having or including that meaning.
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
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Item Provision
15 Section 169(3)
16 Section 170
17 Section 195
18 Section 223
19 Section 225
20 Section 227
21 Section 228
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.
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(2) To avoid doubt, a user is also a prospective user if the user
seeks or wishes to be provided with a pipeline service by
means of a scheme pipeline other than a pipeline service
already provided to them under--
(a) a contract; or
(b) an access determination.
6. Meaning of regulatory obligation or requirement
(1) A regulatory obligation or requirement is--
(a) in relation to the provision of a pipeline service by
a service provider--
(i) a pipeline safety duty; or
(ii) a pipeline reliability standard; or
(iii) a pipeline service standard; or
(b) an obligation or requirement under--
(i) this Law or the Rules; or
(ii) an Act of a participating jurisdiction, or
any instrument made or issued under or
for the purposes of that Act, that levies or
imposes a tax or other levy that is payable
by a service provider; or
(iii) an Act of a participating jurisdiction, or
any instrument made or issued under or
for the purposes of that Act, that regulates
the use of land in a participating
jurisdiction by a service provider; or
(iv) an Act of a participating jurisdiction or
any instrument made or issued under or
for the purposes of that Act that relates to
the protection of the environment; or
(v) an Act of a participating jurisdiction, or
any instrument made or issued under or
for the purposes of that Act (other than
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national gas legislation or an Act of a
participating jurisdiction or an Act or
instrument referred to in
subparagraphs (ii) to (iv)), that materially
affects the provision, by a service
provider, of pipeline services to which an
applicable access arrangement applies.
(2) A regulatory obligation or requirement does not include an
obligation or requirement to pay a fine, penalty or
compensation--
(a) for a breach of--
(i) a pipeline safety duty; or
(ii) a pipeline reliability standard; or
(iii) a pipeline service standard; or
(b) under this Law or the Rules or an Act or an
instrument referred to in subsection (1)(b)(ii) to
(v).
Note--
See also section 24(2)(b).
7. Meaning of regulatory payment
A regulatory payment is a sum that a service provider had
been required or allowed to pay to a user or an end user for
a breach of, as the case requires--
(a) a pipeline reliability standard; or
(b) a pipeline service standard,
because it was efficient for the service provider (in terms of
the service provider's overall business) to pay that sum.
Note--
See also section 24(2)(b).
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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.
(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
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(b) under this Law or the Rules a service provider is
required or allowed to do a thing.
(2) A service provider of the service provider group (the
complying service provider) may do that thing on behalf of
the other service providers of the service provider group if
the complying service provider has the written permission
of all of the service providers of that group to do that thing
on behalf of the service provider group.
(3) Unless this Law or the Rules otherwise provide, on the
doing of a thing referred to in subsection (2) by a
complying service provider, the service providers of the
service provider group on whose behalf the complying
service provider does that thing, must, for the purposes of
this Law and the Rules, each be taken to have done the
thing done by the complying service provider.
(4) This section does not apply to a thing required or allowed
to be done under section 131 or Chapter 4 Part 2.
(5) In this section--
controlling pipeline activity means own, control or
operate.
11. Local agents of foreign service providers
(1) This section applies if--
(a) a service provider is a foreign company; and
(b) the service provider has, under the Corporations
Act 2001 of the Commonwealth, appointed a local
agent within the meaning of that Act.
(2) The local agent--
(a) is answerable for the doing of all acts, matters and
things the service provider is required by or under
this Law to do; and
(b) is personally liable to a penalty imposed on the
service provider for a breach of a provision of this
Law or the Rules if a court hearing the matter is
satisfied that the local agent should be so liable.
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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;
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(b) that it would be uneconomic for anyone to develop
another pipeline to provide the pipeline services
provided by means of the pipeline;
(c) that access (or increased access) to the pipeline
services provided by means of the pipeline can be
provided without undue risk to human health or
safety;
(d) that access (or increased access) to the pipeline
services provided by means of the pipeline would
not be contrary to the public interest.
16. Form of regulation factors
The form of regulation factors are--
(a) the presence and extent of any barriers to entry in
a market for pipeline services;
(b) the presence and extent of any network
externalities (that is, interdependencies) between a
natural gas service provided by a service provider
and any other natural gas service provided by the
service provider;
(c) the presence and extent of any network
externalities (that is, interdependencies) between a
natural gas service provided by a service provider
and any other service provided by the service
provider in any other market;
(d) the extent to which any market power possessed
by a service provider is, or is likely to be,
mitigated by any countervailing market power
possessed by a user or prospective user;
(e) the presence and extent of any substitute, and the
elasticity of demand, in a market for a pipeline
service in which a service provider provides that
service;
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(f) the presence and extent of any substitute for, and
the elasticity of demand in a market for, electricity
or gas (as the case may be);
(g) the extent to which there is information available
to a prospective user or user, and whether that
information is adequate, to enable the prospective
user or user to negotiate on an informed basis with
a service provider for the provision of a pipeline
service to them by the service provider.
17. Effect of separate and consolidated access arrangements in
certain cases
(1) This section applies despite anything to the contrary in this
Law.
(2) If, under this Law and the Rules, separate access
arrangements are approved in an applicable access
arrangement decision for pipeline services provided, or to
be provided, by means of different parts of a covered
pipeline, each part of the covered pipeline--
(a) by which pipeline services are provided; and
(b) to which each separate applicable access
arrangement applies,
must to be taken to be a separate covered pipeline for the
purposes of this Law.
(3) If under this Law and the Rules, a single access
arrangement is approved in an applicable access
arrangement decision for pipeline services provided, or to
be provided, by means of 2 or more covered pipelines,
those pipelines must be taken to be a single covered
pipeline for the purposes of this Law.
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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 1A Postponement of Natural Gas Services Bulletin Board
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s. 20A
Part 1A -- Postponement of Natural Gas Services Bulletin
Board provisions
20A. Minister may fix day on which provisions apply
To the extent that a provision of this Law relates to the
Natural Gas Services Bulletin Board, the provision does
not apply before a day is fixed by the Minister, by an order
notice of which is published in the Government Gazette, as
the day on and after which provisions of this Law relating
to the Natural Gas Services Bulletin Board apply.
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
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National gas objective and principles Part 3
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of those jurisdictions that substantially correspond
to Part 2 of the National Gas (South Australia)
Act 2008 of South Australia.
Part 3 -- National gas objective and principles
Division 1 -- National gas objective
23. National gas objective
The objective of this Law is to promote efficient
investment in, and efficient operation and use of, natural
gas services for the long term interests of consumers of
natural gas with respect to price, quality, safety, reliability
and security of supply of natural gas.
Division 2 -- Revenue and pricing principles
24. Revenue and pricing principles
(1) The revenue and pricing principles are the principles set
out in subsections (2) to (7).
(2) A service provider should be provided with a reasonable
opportunity to recover at least the efficient costs the service
provider incurs in--
(a) providing reference services; and
(b) complying with a regulatory obligation or
requirement or making a regulatory payment.
(3) A service provider should be provided with effective
incentives in order to promote economic efficiency with
respect to reference services the service provider provides.
The economic efficiency that should be promoted
includes--
(a) efficient investment in, or in connection with, a
pipeline with which the service provider provides
reference services; and
(b) the efficient provision of pipeline services; and
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(c) the efficient use of the pipeline.
(4) Regard should be had to the capital base with respect to a
pipeline adopted--
(a) in any previous--
(i) full access arrangement decision; or
(ii) decision of a relevant Regulator under
section 2 of the Gas Code;
(b) in the Rules.
(5) A reference tariff should allow for a return commensurate
with the regulatory and commercial risks involved in
providing the reference service to which that tariff relates.
(6) Regard should be had to the economic costs and risks of
the potential for under and over investment by a service
provider in a pipeline with which the service provider
provides pipeline services.
(7) Regard should be had to the economic costs and risks of
the potential for under and over utilisation of a pipeline
with which a service provider provides pipeline services.
Division 3 -- MCE policy principles
25. MCE statements of policy principles
(1) Subject to this section, the MCE may issue a statement of
policy principles in relation to any matters that are relevant
to the exercise and performance by the AEMC of its
functions and powers in--
(a) making a Rule; or
(b) conducting a review under section 83.
(2) Before issuing a statement of policy principles, the MCE
must be satisfied that the statement is consistent with the
national gas objective.
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(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.
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Part 1 Functions and powers of the Australian Energy Regulator
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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
(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
(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
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(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".
29. Delegations
Any delegation by the AER under section 44AAH of the
Trade Practices Act 1974 of the Commonwealth or by the
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ERA under section 29 of the Economic Regulation Authority
Act 2003 extends to, and has effect for the purposes of, this
Law, the Regulations and the Rules.
30. Confidentiality
(1) 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.
(2) Without limiting section 2A, that section also applies to
section 44AAF as adopted by subsection (1) and, when the
adopted section is read as if a reference in it to the AER were
a reference to the ERA, it is further modified as follows:
(a) subsection (3)(c) of the adopted section is to be read
as if it were --
"
(c) the Australian Energy Regulator established by
section 44AE of the Trade Practices Act 1974
of the Commonwealth;
";
(b) subsection (6)(a)(i) of the adopted section is to be
read as if it were --
"
(i) an ERA member, a person assisting the
ERA in the performance of its functions
or a delegate of the ERA;
".
Note--
See also Chapter 10 Part 2 Division 1.
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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;
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(c) to search for and seize a thing named or described
in the warrant and which the person believes on
reasonable grounds to be connected with the
breach or possible breach of the relevant
provision;
(d) to inspect, examine or record an image of anything
in the place;
(e) to take extracts from, and make copies of, any
documents in the place;
(f) to take into the place such equipment and
materials as the person requires for exercising the
powers.
(3) A search warrant issued under this section must state--
(a) the purpose for which the search is required and
the nature of the suspected breach of the relevant
provision; and
(b) any conditions to which the warrant is subject; and
(c) whether entry is authorised to be made at any time
of the day or night or during stated hours of the
day or night; and
(d) a day, not later than 7 days after the issue of the
warrant, on which the warrant ceases to have
effect.
(4) Except as provided by this Law, the rules to be observed
with respect to search warrants mentioned in any relevant
laws of this jurisdiction extend and apply to warrants under
this section.
36. Announcement of entry and details of warrant to be given to
occupier or other person at premises
(1) This section applies if the occupier or another person who
apparently represents the occupier is present at premises
when a search warrant is being executed.
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(2) The authorised person executing the warrant must--
(a) identify himself or herself to that person; and
(b) announce that he or she is authorised by the
warrant to enter the place; and
(c) before using force to enter, give the person an
opportunity to allow entry; and
(d) give the person a copy of the warrant.
(3) The authorised person executing the warrant is not entitled
to exercise any powers under the warrant in relation to
premises if the authorised person does not comply with
subsection (2).
37. Immediate entry permitted in certain cases
An authorised person executing a warrant need not comply
with section 36 if he or she believes on reasonable grounds
that immediate entry to premises is required to ensure--
(a) the safety of any person; or
(b) that the effective execution of the search warrant is
not frustrated.
38. Copies of seized documents
(1) If an authorised person executing a warrant retains
possession of a document seized from a person in
accordance with the warrant, the authorised person must
give that other person, within 21 days of the seizure, a copy
of the document certified as correct by the authorised
person executing the warrant.
(2) A copy of a document certified under subsection (1) shall
be received in all courts and all tribunals as evidence of
equal validity to the original.
39. Retention and return of seized documents or things
(1) If an authorised person executing a warrant seizes a
document or other thing in accordance with the warrant,
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the authorised person must if he or she is not a person
employed by the AER, give the document or other thing
seized to the AER.
(2) The AER must take reasonable steps to return the
document or thing to the person from whom it was seized
if the reason for its seizure no longer exists.
(3) If the document or thing seized has not been returned
within 3 months after it was seized, the AER must take
reasonable steps to return it unless--
(a) proceedings for the purpose for which the
document or thing was retained have commenced
within that 3 month period and those proceedings
(including any appeal) have not been completed;
or
(b) a magistrate makes an order under section 40
extending the period during which the document
or thing may be retained.
40. Extension of period of retention of documents or things
seized
(1) The AER may apply to a magistrate--
(a) within 3 months after a document or other thing
was seized in accordance with a warrant; or
(b) if an extension has been granted under this section,
before the end of the period of the extension,
for an extension of the period for which the AER may
retain the document or thing but so that the total period of
retention does not exceed 12 months.
(2) An application must be made before proceedings for the
purpose for which the document or thing was retained have
been commenced.
(3) A magistrate may order such an extension if he or she is
satisfied that--
(a) it is in the interests of justice; and
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(b) the total period of retention does not exceed
12 months; and
(c) retention of the document or other thing is
necessary--
(i) for the purposes of an investigation into
whether a breach of a relevant provision
has occurred; or
(ii) to enable evidence of a breach of a
relevant provision to be obtained for the
purposes of a proceeding under this Law.
(4) If proceedings are commenced for the purpose for which
the document or thing was retained at any time before the
expiry of the period specified in an order under this
section, the document or thing may be retained until those
proceedings (including any appeal) have been completed
despite those proceedings being completed after the period
specified in the order.
(5) At least 7 days prior to the hearing of an application under
this section by a magistrate, notice of the application must
be sent to the owner of the document or thing described in
the application.
41. Obstruction of persons authorised to enter
A person must not, without reasonable excuse, obstruct or
hinder an authorised person in the exercise of a power
under a search warrant under this Division.
Maximum penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
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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
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(b) produce a document prepared for the purposes of a
meeting of the Cabinet or a committee of the
Cabinet of the Commonwealth or of a State or a
Territory; or
(c) provide information, or produce a document, that
would disclose the deliberations of the Cabinet or
a committee of the Cabinet of the Commonwealth
or of a State or a Territory.
(10) A person incurs, by complying with a relevant notice, no
liability for breach of contract, breach of confidence or any
other civil wrong.
Division 4 -- Regulatory information notices and general
regulatory information orders
Subdivision 1 -- Interpretation
43. Definitions
In this Division--
contributing service has the meaning given by section 44;
scheme pipeline service provider means--
(a) a covered pipeline service provider; or
(b) a service provider who provides or intends to
provide pipeline services by means of an
international pipeline to which a price regulation
exemption applies;
related provider means a person who supplies a
contributing service to a scheme pipeline service provider.
44. Meaning of contributing service
(1) A contributing service is a service that the AER, in
accordance with this section, decides is a service that
contributes in a material way to the provision of a pipeline
service by a scheme pipeline service provider.
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(2) In deciding whether a service is a service that contributes
in a material way to the provision of a pipeline service by a
scheme pipeline service provider, the AER must have
regard to--
(a) the nature and kind of the service;
(b) when the service was first supplied;
(c) the nature and extent of the contribution of the
service relative to--
(i) the pipeline service; and
(ii) all other services supplied by the scheme
pipeline service provider;
(d) whether the service was previously supplied--
(i) by the scheme pipeline service provider;
or
(ii) directly or indirectly by an associate of
the scheme pipeline service provider;
(e) whether the service, together with other services,
contributes in a material way to the provision of
pipeline services;
(f) any other matter specified under the Rules.
45. Meaning of general regulatory information order
A general regulatory information order is an order made by
the AER in accordance with this Division that requires
each scheme pipeline service provider of a specified class,
or each related provider of a specified class, to do either or
both of the following:
(a) provide to the AER the information specified in
the order;
(b) prepare, maintain or keep information specified in
the notice in a manner and form specified in the
order.
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46. Meaning of regulatory information notice
A regulatory information notice is a notice prepared and
served by the AER in accordance with this Division that
requires the scheme pipeline service provider, or a related
provider, named in the notice to do either or both of the
following:
(a) provide to the AER the information specified in
the notice;
(b) prepare, maintain or keep information specified in
the notice in a manner and form specified in the
notice.
47. Division does not limit operation of information gathering
powers under Division 3
This Division does not limit the operation of Division 3.
Subdivision 2 -- Serving and making of regulatory information
instruments
48. Service and making of regulatory information instrument
(1) Subject to this Division, the AER, if it considers it
reasonably necessary for the performance or exercise of its
functions or powers under this Law or the Rules, may--
(a) serve a regulatory information notice on a scheme
pipeline service provider or a related provider; or
(b) make a general regulatory information order.
(2) In considering whether it is reasonably necessary to serve a
regulatory information notice, or make a general regulatory
information order, the AER must have regard to--
(a) the matter to be addressed by--
(i) the service of the regulatory information
notice; or
(ii) the making of the general regulatory
information order; and
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(b) the likely costs that may be incurred by an
efficient scheme pipeline service provider or
efficient related provider in complying with the
notice or order.
Note--
The AER must also exercise its powers under this section
in a manner that will or is likely to contribute to the
achievement of the national gas objective: see section 28.
(3) A regulatory information notice must not be served, or a
general regulatory information order must not be made,
solely for the purpose of--
(a) investigating breaches or possible breaches of
provisions of this Law, the Regulations or the
Rules, including offences against this Law; or
(b) instituting and conducting proceedings in relation
to breaches of provisions of this Law, the
Regulations or the Rules, including offences
against this Law; or
(c) instituting and conducting appeals from decisions
in proceedings referred to in paragraph (b); or
(d) collecting information for the preparation of a
service provider performance report; or
(e) any application for review of a decision of the
AER under Chapter 8 Part 5.
49. Additional matters to be considered for related provider
regulatory information instruments
(1) This section applies if the AER is intending to--
(a) serve a regulatory information notice on a related
provider; or
(b) make a general regulatory information order that
will apply to a class of related providers.
(2) In addition to the matters set out in section 48(2), the AER,
in considering whether it is reasonably necessary to serve
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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.
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(3) For the purposes of subsection (2)(b), in considering
whether a contributing service is being supplied on a
genuinely competitive basis, the AER may take into
account--
(a) whether there is effective competition in the
market for the supply of the contributing service;
and
(b) whether the related provider supplies the
contributing service to a scheme pipeline service
provider under a contract, arrangement or
understanding entered into with that scheme
pipeline service provider following a competitive
process for the awarding of the right to enter into
that contract, arrangement or understanding
involving persons who were not associates of the
scheme pipeline service provider.
50. AER must consult before publishing a general regulatory
information order
The AER must, in accordance with the Rules, consult with
the public on the general regulatory information order it
intends to make before it makes that order.
Note--
See also section 65 about what the AER must and may do after
receiving submissions.
51. Publication requirements for general regulatory
information orders
(1) A general regulatory information order made under
section 48(1)(b) must be published on the AER's website
as soon as practicable after it is made.
(2) Notice of the making of a general regulatory information
order must be published in a newspaper circulating
generally throughout Australia as soon as practicable after
it is made.
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52. Opportunity to be heard before regulatory information
notice is served
(1) The AER, before serving a regulatory information notice,
must--
(a) notify, in writing, the scheme pipeline service
provider, or the related provider, on whom the
AER intends to serve the regulatory information
notice of its intention to do so; and
(b) give the scheme pipeline service provider, or the
related provider, a draft of the regulatory
information notice it intends to serve.
(2) If the regulatory information notice to be served is an
urgent notice, the AER must, in a notice under
subsection (1)--
(a) identify the regulatory information notice to be
served as an urgent notice; and
(b) give its reasons, in writing, why the regulatory
information notice to be served is an urgent notice.
(3) A regulatory information notice is an urgent notice if--
(a) under the notice the AER will require the scheme
pipeline service provider or related provider to
provide information to the AER; and
(b) that requirement has arisen because the AER
considers it must deal with or address a particular
matter or thing in order for it to make an AER
economic regulatory decision; and
(c) the AER considers that, having regard to the time
within which it must make that AER economic
regulatory decision, the time within which the
AER requires the information is of the essence.
(4) A notice under subsection (1) must--
(a) invite the scheme pipeline service provider, or the
related provider, to make written representations
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to the AER as to whether the AER should serve
the regulatory information notice on them; and
(b) specify the period within which the scheme
pipeline service provider, or the related provider,
may make the representations.
(5) The period that must be specified in accordance with
subsection (4) must be--
(a) in the case of an urgent notice to be served--a
period of not less than 5 business days and not
more than 10 business days calculated from the
date of the notice under subsection (1);
(b) in all other cases--a period of at least 20 business
days calculated from the date of the notice under
subsection (1).
(6) The AER must consider the written representations made
in accordance with a notice under subsection (1) before
making its decision in accordance with this Division to
serve the regulatory information notice.
Subdivision 3 -- Form and content of regulatory
information instruments
53. Form and content of regulatory information instrument
(1) A regulatory information instrument--
(a) must specify the information required to be--
(i) provided to the AER;
(ii) prepared, maintained or kept in the
particular manner and form specified in
the instrument; and
(b) may specify the manner and form in which the
information described in the instrument is required
to be--
(i) provided to the AER;
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(ii) prepared, maintained or kept; and
(c) must state the reasons of the AER for requiring the
information described in the instrument to be--
(i) provided to the AER;
(ii) prepared, maintained or kept in the
particular manner and form specified in
the instrument; and
(d) in the case of an instrument requiring information
to be provided to the AER, must specify when the
information must be provided.
(2) In the case of a regulatory information notice, the notice
must name the scheme pipeline service provider or the
related provider to whom it applies.
(3) In the case of a general regulatory information order, the
order must specify the class of scheme pipeline service
provider, or related provider, to whom the order applies.
54. Further provision about the information that may be
described in a regulatory information instrument
Without limiting section 53(1)(a), the information that may
be required to be provided to the AER, or to be prepared,
maintained or kept, may include--
(a) historic, current and forecast information
(including financial information);
(b) information that is or may be derived from other
information in the possession or control of the
scheme pipeline service provider or the related
provider to whom the instrument applies;
(c) information to enable the AER to verify whether
the scheme pipeline service provider to whom the
instrument applies is or has been complying with
Chapter 4;
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(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
(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;
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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).
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(2) Without limiting sections 56 and 57 and despite anything
to the contrary in this Law or the Rules, the AER--
(a) may make the AER economic regulatory decision
on the basis of the information the AER has at the
time it makes that decision; and
(b) in making that decision, may make reasonable
assumptions (including assumptions adverse to the
interests of the scheme pipeline service provider)
in respect of the matters the information required
under the regulatory information instrument would
have addressed had that information been provided
as required.
Subdivision 5 -- General
60. Providing to AER false and misleading information
A person must not, in purported compliance with a
regulatory information instrument requiring the person to
provide information to the AER, provide information to the
AER that the person knows is false or misleading in a
material particular.
Maximum penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
61. Person cannot rely on duty of confidence to avoid
compliance with regulatory information instrument
(1) A person must not refuse to comply with a regulatory
information instrument on the ground of any duty of
confidence.
(2) A person incurs, by complying with a regulatory
information instrument, no liability for breach of contract,
breach of confidence or any other civil wrong.
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62. Legal professional privilege not affected
A regulatory information instrument, and sections 56 and
57, are not to be taken as requiring a person to--
(a) provide to the AER information that is the subject
of legal professional privilege; or
(b) produce a document to the AER the production of
which would disclose information that is the
subject of legal professional privilege.
63. Protection against self-incrimination
(1) It is a reasonable excuse for a natural person to whom
section 56 applies not to comply with a regulatory
information notice served on the person requiring the
person to provide information to the AER if to do so might
tend to incriminate the person, or make the person liable to
a criminal penalty, under a law of this jurisdiction or
another participating jurisdiction.
(2) It is a reasonable excuse for a natural person to whom
section 57 applies not to comply with a general regulatory
information order made requiring the person to provide
information to the AER if to do so might tend to
incriminate the person, or make the person liable to a
criminal penalty, under a law of this jurisdiction or another
participating jurisdiction.
Division 5 -- Service provider performance reports
64. Preparation of service provider performance reports
(1) Subject to this section, the AER may prepare a report on
the financial performance or operational performance of 1
or more scheme pipeline service providers in providing
pipeline services by means of a scheme pipeline.
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Note--
The AER may only prepare a report under subsection (1)
if the preparation of the report will or is likely to
contribute to the achievement of the national gas
objective: see section 28.
(2) A report prepared under this section may--
(a) deal with the financial or operational performance
of the scheme pipeline service provider in relation
to--
(i) complying with pipeline service
standards; and
(ii) standards relating to the provision of
pipeline services to users or end users;
and
(iii) the profitability of scheme pipeline
service providers in providing pipeline
services; and
(b) if the AER considers it appropriate, deal with the
performance of the scheme pipeline service
provider in relation to other matters or things if
that performance is directly related to the
performance or exercise by the AER of an AER
economic regulatory function or power.
(3) A report prepared under this section may include--
(a) information provided to the AER by a person in
compliance with a regulatory information
instrument; and
(b) in the case of a report dealing with the financial
performance of 1 or more scheme pipeline service
providers, a comparison of the profitability of the
scheme pipeline service providers to which the
report relates from the provision of pipeline
services by them.
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(4) Before preparing a report under this section, the AER must,
in accordance with the Rules, consult with the persons or
bodies specified by the Rules.
(5) The AER may publish a report prepared under this section
on its website.
Division 6 -- Miscellaneous matters
65. Consideration by the AER of submissions or comments
made to it under this Law or the Rules
If, under this Law or the Rules, the AER publishes a notice
inviting submissions in relation to the making of an AER
economic regulatory decision, the AER, in making the
decision--
(a) must consider every submission it receives within
the period specified in the notice; and
(b) may, but need not, consider a submission it
receives after the period specified in the notice
expires.
66. Use of information provided under a notice under Division 3
or a regulatory information instrument
The AER may use information provided to it by a person in
compliance with a notice under section 42 or a regulatory
information instrument for any purpose connected with the
performance or exercise of a function or power of the AER
under this Law or the Rules.
67. AER to inform certain persons of decisions not to investigate
breaches, institute proceedings or serve infringement notices
(1) If the AER is given information by any person in relation
to a breach or a possible breach of this Law, the
Regulations or the Rules by a person but--
(a) decides not to investigate that breach or possible
breach; or
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(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 1A -- Functions and powers of WA arbitrator
68A. Manner in which WA arbitrator must perform or exercise
certain functions or powers
(1) The WA arbitrator must, in performing or exercising a
function or power that relates to an access determination,
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 WA arbitrator--
(a) must take into account the revenue and pricing
principles when making an access determination
relating to a rate or charge for a pipeline service;
and
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(b) may take into account the revenue and pricing
principles when performing or exercising any
other function or power that relates to an access
determination, if the WA arbitrator considers it
appropriate to do so.
(3) For the purposes of subsection (2)(a), a reference to a
reference service in the revenue and pricing principles must
be read as a reference to a pipeline service.
Part 2 -- Functions and powers of the Australian Energy
Market Commission
Division 1 -- General
69. Functions and powers of the AEMC
(1) The AEMC has the following functions and powers:
(a) the Rule making functions and powers conferred
on it under this Law and the Regulations;
(b) the market development functions conferred on it
under this Law and the Rules;
(c) any other functions and powers conferred on it
under this Law and the Rules.
(2) The AEMC has power to do all things necessary or
convenient to be done for or in connection with the
performance of its functions.
70. Delegations
Any delegation by the AEMC under section 20 of the
Australian Energy Market Commission Establishment
Act 2004 of South Australia extends to, and has effect for
the purposes of, this Law, the Regulations and the Rules.
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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;
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(iii) the collection, use, disclosure, copying,
recording, management and publication of
information in relation to natural gas
services;
(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);
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(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;
(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);
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(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;
(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.
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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
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(e) the effectiveness of competition in a market for
gas for the purpose of giving advice about whether
to retain, remove or reintroduce price controls on
prices for retail gas services.
(2) A direction given to the AEMC under this section is
binding on the AEMC and must be complied with despite
anything to the contrary in the Rules.
(3) A direction given under this section must be published in
the South Australian Government Gazette.
(4) The AEMC must cause a direction given under this section
to be published on its website.
80. Terms of reference
(1) The terms of reference of a MCE directed review will be as
specified in the direction given by the MCE.
Example--
The terms of reference may require a MCE directed
review to be conducted--
(a) about a specific matter within a specified time;
or
(b) whenever a specified event occurs; or
(c) on an annual basis.
(2) Without limiting subsection (1), the MCE may in its
direction to the AEMC do 1 or more of the following:
(a) require the AEMC to give a report on a MCE
directed review to the MCE within a specified
period;
(b) require the AEMC to make the report on a MCE
directed review publicly available or available to
specified persons or bodies;
(c) require the AEMC to make a draft report publicly
available or available to specified persons or
bodies during a MCE directed review;
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(d) require the AEMC to consider specified matters in
the conduct of a MCE directed review;
(e) require the AEMC to have specified objectives in
the conduct of a MCE directed review which need
not be limited by the national gas objective;
(f) require the AEMC to assess a particular matter in
relation to services provided in a market for gas
against specified criteria or a specified
methodology;
(g) require the AEMC--
(i) to assess a particular matter in relation to
services provided in a market for gas; and
(ii) to develop appropriate and relevant
criteria, or an appropriate and relevant
methodology, for the purpose of the
required assessment;
(h) give the AEMC other specific directions in respect
of the conduct of a MCE directed review.
81. Notice of MCE directed review
(1) The AEMC must publish notice of a MCE directed review
on its website and in a newspaper circulating generally
throughout Australia.
(2) The AEMC must publish a further such notice if a term of
reference or a requirement or direction relating to the MCE
directed review is varied.
82. Conduct of MCE directed review
Subject to any requirement or direction of the MCE, a
MCE directed review--
(a) may be conducted in such manner as the AEMC
considers appropriate; and
(b) may (but need not) involve public hearings.
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Division 5 -- Other reviews
83. Rule reviews by the AEMC
(1) The AEMC may conduct a review into--
(a) the operation and effectiveness of the Rules; or
(b) any matter relating to the Rules.
(2) A review--
(a) may be conducted in such manner as the AEMC
considers appropriate; and
(b) may (but need not) involve public hearings.
(3) During the course of a review, the AEMC may--
(a) consult with any person or body that it considers
appropriate;
(b) establish working groups to assist it in relation to
any aspect, or any matter or thing that is the
subject of, the review;
(c) commission reports by other persons on its behalf
on any aspect, or matter or thing that is the subject
of, the review;
(d) publish discussion papers or draft reports.
(4) At the completion of a review, the AEMC must--
(a) give a copy of the report to the MCE; and
(b) publish a report or a version of a report from
which confidential information has been omitted
in accordance with section 331.
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Division 6 -- Miscellaneous matters
84. AEMC must publish and make available up to date versions
of Rules
The AEMC must, at all times--
(a) maintain, on its website, a copy of the National
Gas Rules, as in force from time to time; and
(b) make copies of the National Gas Rules, as in force
from time to time, available to the public for
inspection at its offices during business hours.
85. Fees
(1) The AEMC may charge a fee specified, or a fee calculated
in accordance with a formula or methodology specified, in
the Regulations for services provided by it in performing or
exercising any of its functions or powers under this Law,
the Regulations or the Rules.
(2) The fee must not be such as to amount to taxation.
86. Immunity from personal liability of AEMC officials
(1) No personal liability attaches to an AEMC official for an
act or omission in good faith in the performance or
exercise, or purported performance or exercise of a
function or power under this Law, the Regulations or the
Rules.
(2) A liability that would, but for subsection (1), lie against an
AEMC official lies instead against the AEMC.
(3) In this section--
AEMC official means--
(a) a member of the AEMC;
(b) the chief executive of the AEMC;
(c) a member of staff appointed by the AEMC.
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Part 3 -- Functions and powers of Ministers of
participating jurisdictions
87. Functions and powers of Minister of this participating
jurisdiction under this Law
(1) The Minister of this participating jurisdiction has the
functions and powers conferred on him or her under this
Law, the Regulations or the Rules.
(2) The Minister of this participating jurisdiction has power to
do all things necessary or convenient to be done for or in
connection with the performance of his or her functions.
(3) In this section--
Minister of this participating jurisdiction means the
Minister that administers the Act of this jurisdiction that
applies this Law as a law of this jurisdiction.
88. Functions and powers of Commonwealth Minister under
this Law
(1) The Commonwealth Minister has the functions and powers
conferred on him or her under this Law, the Regulations or
the Rules.
(2) The Commonwealth Minister has power to do all things
necessary or convenient to be done for or in connection
with the performance of his or her functions.
Part 4 -- Functions and powers of the NCC
89. Functions and powers of NCC under this Law
(1) The NCC has the functions and powers conferred on it
under this Law, the Regulations or the Rules.
(2) The NCC has power to do all things necessary or
convenient to be done for or in connection with the
performance of its functions.
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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
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(b) a person who is authorised to perform or exercise
a function or power of, or on behalf of, the NCC,
is taken to be authorised use and disclosure of the
information.
(7) Regulations made for the purposes of this section may
specify uses of information and disclosures of information
that are authorised uses and authorised disclosures for the
purposes of this section.
(8) Nothing in any of the above subsections limits--
(a) anything else in any of those subsections; or
(b) what may otherwise constitute, for the purposes of
subsection (1), authorised use or disclosure of
information.
(9) In this section--
Councillor has the same meaning as in the Trade Practices
Act 1974 of the Commonwealth.
Note--
See also Chapter 10 Part 2 Division 2.
Part 5 -- Functions and powers of Tribunal
91. Functions and powers of Tribunal under this Law
(1) The Tribunal has the functions and powers conferred on it
under Chapter 8 Part 5 and any Regulations made for the
purposes of that Division.
(2) The Tribunal has power to do all things necessary or
convenient to be done for or in connection with the
performance of its functions.
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Chapter 3 -- Coverage and classification of pipelines
Part 1 -- Coverage of pipelines
Division 1 -- Coverage determinations
92. Application for recommendation that a pipeline be a
covered pipeline
(1) Any person may apply for a determination that a pipeline
be a covered pipeline (a coverage determination).
(2) An application for a coverage determination--
(a) is to be made to the NCC in accordance with the
Rules; and
(b) must contain the information required by the
Rules; and
(c) must be accompanied by the fee prescribed by the
Regulations (if any).
93. Application to be dealt with in accordance with the Rules
Subject to section 94, on receiving an application under
section 92 the NCC must deal with it in accordance with
the Rules.
94. NCC may defer consideration of application in certain
cases
(1) This section applies if an application under section 92 is
made in relation to a proposed pipeline after--
(a) an application has been made to the AER under
the Rules for the approval, by the AER, of the
tender process for the construction and operation
of the proposed pipeline as a competitive tender
process; or
(b) a tender approval decision has been made in
respect of the tender process for the construction
and operation of the proposed pipeline.
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(2) The NCC may defer consideration of whether to make a
recommendation in respect of the application until--
(a) the application for the approval, by the AER, of
the tender process for the construction and
operation of the proposed pipeline as a
competitive tender process has been rejected by
the AER under the Rules; or
(b) the tender approval decision--
(i) has been revoked under the Rules; or
(ii) has lapsed as provided under the Rules.
95. NCC coverage recommendation
(1) Subject to sections 94 and 96, the NCC must recommend
to the relevant Minister that the pipeline the subject of the
application--
(a) be a covered pipeline; or
(b) not be a covered pipeline.
Note--
See also Chapter 3 Part 2 Division 1 Subdivision 1.
(2) A recommendation under this section must--
(a) be made in accordance with this Law and the
Rules; and
(b) be made within the time specified by the Rules;
and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the
Rules.
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(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.
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99. Relevant Minister's determination on application
(1) On receiving a coverage recommendation, the relevant
Minister must decide whether to make a coverage
determination in respect of the pipeline to which the
recommendation relates.
(2) The relevant Minister must use his or her best endeavours
to make the decision within 20 business days after
receiving the coverage recommendation.
(3) If the relevant Minister is unable to make the decision
within the period specified under subsection (2), he or she
must make the decision as soon as reasonably practicable
after the end of the specified period.
(4) The relevant Minister, for the purpose of making the
decision, may request submissions or comments in relation
to an application under section 92.
(5) A coverage determination or a decision not to make a
coverage determination must--
(a) be made in accordance with this Law and the
Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the
Rules.
(6) In the case of a coverage determination, the determination
must specify the date the determination takes effect.
(7) A coverage determination may have an outcome different
to the outcome--
(a) sought in the application under section 92; or
(b) of the coverage recommendation.
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Example--
An applicant may apply for a determination that the whole
of a pipeline be a covered pipeline. The NCC may
recommend that only a part of the pipeline the subject of
the application be covered. The relevant Minister may
determine that different parts of the pipeline to those
recommended by the NCC be covered.
100. Principles governing the making of a coverage
determination or decision not to do so
(1) In deciding whether to make a coverage determination
under this Division, the relevant Minister--
(a) must give effect to the pipeline coverage criteria;
and
(b) in deciding whether or not the pipeline coverage
criteria are satisfied in relation to the pipeline--
(i) must have regard to the national gas
objective; and
(ii) must have regard to the coverage
recommendation; and
(iii) must take into account any submissions or
comments he or she receives on a request
under section 99(4); and
(iv) may take into account any relevant
submissions and comments made to the
NCC by the public under the Rules in
relation to the application.
(2) The relevant Minister gives effect to the pipeline coverage
criteria as follows:
(a) if the relevant Minister is satisfied that all the
pipeline coverage criteria are satisfied in relation
to the pipeline--the Minister must make a
coverage determination;
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(b) if the relevant Minister is not satisfied that all the
pipeline coverage criteria are satisfied in relation
to the pipeline--the Minister must not make a
coverage determination.
101. Operation and effect of coverage determination
The pipeline the subject of a coverage determination
becomes a covered pipeline--
(a) when the coverage determination takes effect; and
(b) continues to be a covered pipeline while the
coverage determination remains in effect.
Division 2 -- Coverage revocation determinations
102. Application for a determination that a pipeline no longer be
a covered pipeline
(1) Any person may apply for a determination that a covered
pipeline no longer be a covered pipeline (a coverage
revocation determination).
(2) An application for a coverage revocation determination--
(a) is to be made to the NCC in accordance with the
Rules; and
(b) must contain the information required by the
Rules; and
(c) must be accompanied by the fee prescribed by the
Regulations (if any).
103. Application to be dealt with in accordance with the Rules
On receiving an application under section 102, the NCC
must deal with it in accordance with the Rules.
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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
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(b) in deciding whether or not the pipeline coverage
criteria are satisfied must have regard to the
national gas objective.
(2) The NCC gives effect to the pipeline coverage criteria as
follows:
(a) if the NCC is satisfied that all the pipeline
coverage criteria are satisfied in relation to the
pipeline--the recommendation must be in favour
of the pipeline continuing to be a covered pipeline;
(b) if the NCC is not satisfied that all the pipeline
coverage criteria are satisfied in relation to the
pipeline--the recommendation must be in favour
of the pipeline no longer being a covered pipeline.
106. Relevant Minister's determination on application
(1) On receiving a coverage revocation recommendation, the
relevant Minister must decide whether to make a coverage
revocation determination in respect of the pipeline to which
the recommendation relates.
(2) The relevant Minister must use his or her best endeavours
to make the decision within 20 business days after
receiving the coverage revocation recommendation.
(3) If the relevant Minister is unable to make the decision
within the period specified under subsection (2), he or she
must make the decision as soon as reasonably practicable
after the end of the specified period.
(4) The relevant Minister, for the purpose of making the
decision, may request submissions or comments in relation
to an application under section 102.
(5) A coverage revocation determination or a decision not to
make a coverage revocation determination must--
(a) be made in accordance with this Law and the
Rules; and
(b) contain the information required by the Rules; and
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(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the
Rules.
(6) In the case of a coverage revocation determination, the
determination must specify the date the determination takes
effect.
(7) A coverage revocation determination may have an outcome
different to the outcome--
(a) sought in the application under section 102; or
(b) of the coverage revocation recommendation.
Example--
A service provider may apply for a determination that
revokes the coverage of the covered pipeline by means of
which the provider provides pipeline services. The NCC
may recommend that the coverage of the covered pipeline
be only partly revoked. The relevant Minister may make a
determination that revokes coverage of different parts of
the covered pipeline to those parts in relation to which the
NCC recommended coverage be revoked.
107. Principles governing the making of a coverage revocation
determination or decision not to do so
(1) In deciding whether to make a coverage revocation
determination under this Division, the relevant Minister--
(a) must give effect to the pipeline coverage criteria;
and
(b) in deciding whether or not the pipeline coverage
criteria are satisfied in relation to the pipeline--
(i) must have regard to the national gas
objective; and
(ii) must have regard to the coverage
revocation recommendation; and
(iii) must take into account any submissions or
comments he or she receives on a request
under section 106(4); and
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(iv) may take into account any relevant
submissions and comments made to the
NCC by the public under the Rules in
relation to the application.
(2) The relevant Minister gives effect to the pipeline coverage
criteria as follows:
(a) if the relevant Minister is satisfied that all the
pipeline coverage criteria are satisfied in relation
to the pipeline--the Minister must not make a
coverage revocation determination;
(b) if the relevant Minister is not satisfied that all the
pipeline coverage criteria are satisfied in relation
to the pipeline--the Minister must make a
coverage revocation determination.
108. Operation and effect of coverage revocation determination
The pipeline the subject of a coverage revocation
determination ceases to be a covered pipeline when the
coverage revocation determination takes effect.
Part 2 -- Light regulation of covered pipeline services
Division 1 -- Making of light regulation determinations
Subdivision 1 -- Decisions when pipeline is not a covered pipeline
109. Application of Subdivision
This Subdivision applies if--
(a) an application has been made under section 92 for
a coverage determination; and
(b) the pipeline the subject of the application is not a
designated pipeline.
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110. NCC's decision on light regulation of pipeline services
(1) The NCC must decide whether to make a determination
that the pipeline services provided or to be provided by
means of the pipeline are light regulation services (a light
regulation determination).
(2) The NCC must make its decision under subsection (1)--
(a) at the same time as it makes the coverage
recommendation; and
(b) within the time it must make the coverage
recommendation.
(3) A light regulation determination or a decision not to make
a light regulation determination must--
(a) be made in accordance with this Law and the
Rules; and
Note--
For example, see section 122.
(b) be attached to the coverage recommendation; and
(c) contain the information required by the Rules.
Note--
If the NCC makes a light regulation determination, and the relevant
Minister makes the coverage determination, the service provider
may submit a limited access arrangement in respect of the light
regulation services to the AER for approval: see section 116.
Subdivision 2 -- Decisions when pipeline is a covered pipeline
111. Application of Subdivision
This Subdivision applies if a service provider provides
pipelines services--
(a) by means of a covered pipeline that is not a
designated pipeline; and
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(b) to which an applicable access arrangement
approved or made under a full access arrangement
decision applies.
112. Application
(1) A service provider may apply to the NCC for a
determination that pipeline services provided by the service
provider by means of a covered pipeline be light regulation
services (a light regulation determination).
(2) An application must--
(a) be in accordance with the Rules; and
(b) contain the information required by the Rules.
(3) An application may only be made in respect of all of the
pipeline services provided by means of the covered
pipeline.
113. Application to be dealt with in accordance with the Rules
On receiving an application under section 112, the NCC
must deal with it in accordance with the Rules.
114. NCC's decision on light regulation of pipeline services
(1) The NCC must decide whether to make a light regulation
determination within--
(a) 4 months after receiving an application under
section 112; or
(b) if the Rules specify a later period, that period.
(2) A light regulation determination or a decision not to make
a light regulation determination must--
(a) be made in accordance with this Law and the
Rules; and
Note--
For example, see section 122.
(b) contain the information required by the Rules; and
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(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
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services provided by that service provider is, as the case
requires, approved or made under a full access arrangement
decision.
(6) On the revocation of the light regulation determination the
pipeline services to which the light regulation
determination applied cease to be light regulation services.
Subdivision 2 -- On application by persons other than
service providers
118. Application (other than by service provider) for revocation
of light regulation determinations
(1) A person (other than the service provider who provides
light regulation services) may apply to the NCC for the
revocation of a light regulation determination relating to
those services.
(2) An application under subsection (1) must--
(a) be in accordance with the Rules; and
(b) contain the information required by the Rules.
119. Decisions on applications made around time of applications
for coverage revocation determinations
(1) This section applies if an application is made under
section 118 and--
(a) there is an application for a coverage revocation
determination under section 102 under
consideration--
(i) in respect of the covered pipeline by
means of which the light regulation
services the subject of the application
under section 118 are provided; and
(ii) in respect of which the NCC has not made
a coverage revocation recommendation;
or
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(b) an application for a coverage revocation
determination is made under section 102 in respect
of the covered pipeline by means of which the
light regulation services the subject of the
application under section 118 are provided--
(i) after the application under section 118;
but
(ii) before the NCC makes its decision in
respect of the application under
section 118.
(2) Despite anything to the contrary in this Part, the NCC must
make its decision in respect of the application under this
section.
(3) On receiving the application under section 118, the NCC
must decide whether to revoke the light regulation
determination.
(4) The NCC must make its decision under subsection (3)--
(a) at the same time as it makes the coverage
revocation recommendation; and
(b) within the time it must make the coverage
revocation recommendation.
(5) A decision under subsection (3) must--
(a) be made in accordance with this Law and the
Rules; and
Note--
For example, see section 122.
(b) be attached to the coverage revocation
recommendation; and
(c) contain the information required by the Rules.
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120. NCC decision on application where no application for a
coverage revocation recommendation
(1) This section applies if--
(a) an application is made under section 118; and
(b) no application for a coverage revocation
determination in respect of the covered pipeline
(by means of which the light regulation services
the subject of the application under section 118)
are provided is made before the NCC makes its
decision in respect of the application under
section 118.
(2) Subject to this section, on receiving an application under
section 118 the NCC must deal with it in accordance with
the Rules.
(3) The NCC must decide whether to revoke a light regulation
determination within--
(a) 4 months after receiving an application under
section 118; or
(b) if the Rules specify a later period, that period.
(4) A decision under this section must--
(a) be made in accordance with this Law and the
Rules; and
Note--
For example, see section 122.
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the
Rules.
121. Operation and effect of decision of NCC under this Division
(1) Subject to section 124, on the making of a decision under
section 119(2) or 120 revoking a light regulation
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determination, the service provider must comply with
section 132.
(2) However, the decision under section 119(2) or 120
revoking a light regulation determination does not take
effect until an access arrangement that applies to the
pipeline services provided by that service provider is
approved or made under a full access arrangement
decision.
(3) The effect of a decision under section 119(2) or 120
revoking a light regulation determination is that the
pipeline services to which the light regulation
determination applied cease to be light regulation services.
Division 3 -- Principles governing light regulation determinations
122. Principles governing the making or revoking of light
regulation determinations
(1) In deciding whether to make a light regulation
determination under Division 1 or to revoke a light
regulation determination under Division 2, the NCC must
consider--
(a) the likely effectiveness of the forms of regulation
provided for under this Law and the Rules to
regulate the provision of the pipeline services (the
subject of the application) to promote access to
pipeline services; and
(b) the effect of the forms of regulation provided for
under this Law and the Rules on--
(i) the likely costs that may be incurred by an
efficient service provider; and
(ii) the likely costs that may be incurred by
efficient users and efficient prospective
users; and
(iii) the likely costs of end users.
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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
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(ii) whether there has been a material change
in competition in a market served by the
designated pipeline; and
(b) consult, in accordance with the Rules, with the
public.
(6) On the completion of a review under this section, the AER
must prepare a report and--
(a) give the report to the MCE; and
(b) publish the report on its website.
(7) The AER must also give a copy of the report to the service
provider that has requested the review.
Part 3 -- Coverage of pipelines the subject of tender process
126. Tender approval pipelines deemed to be covered pipelines
(1) A pipeline to which a tender approval decision relates is
deemed to be a covered pipeline on and from the date the
tender approval decision becomes irrevocable by operation
of the Rules.
(2) The pipeline ceases to be a covered pipeline--
(a) if there is an applicable access arrangement that
applies to the pipeline services provided, or that
are to be provided by means of that pipeline--
when that arrangement expires; or
(b) when a coverage revocation determination made in
respect of that pipeline takes effect.
Note--
Under the Rules, the NCC will--
(a) classify the pipeline to be constructed and
operated in accordance with an approved tender
process as a cross boundary transmission
pipeline, cross boundary distribution pipeline,
transmission pipeline or distribution pipeline;
and
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(b) determine the relevant Minister for the purposes
of that pipeline.
Part 4 -- Coverage following approval of voluntary
access arrangement
127. Certain pipelines become covered pipelines on approval of
voluntary access arrangement
(1) This section applies if--
(a) a service provider voluntarily submits to the AER
for approval by the AER, under the Rules, a full
access arrangement that will apply to the pipeline
services provided, or that are to be provided, by
means of a pipeline; and
(b) that pipeline is not a covered pipeline.
(2) The pipeline is deemed to be a covered pipeline on the day
the voluntarily submitted full access arrangement takes
effect as an applicable access arrangement.
(3) The pipeline ceases to be a covered pipeline--
(a) when the applicable access arrangement that
applies to the pipeline services provided, or that
are to be provided, expires; or
(b) when a coverage revocation determination is made
in respect of that pipeline takes effect.
Note--
Under the Rules, the NCC will--
(a) classify the pipeline (by means of which the pipeline
services to which the arrangement relates are provided) as
a cross boundary transmission pipeline, cross boundary
distribution pipeline, transmission pipeline or distribution
pipeline; and
(b) determine the relevant Minister for the purposes of that
pipeline.
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Part 5 -- Reclassification of pipelines
128. Service provider may apply for reclassification of pipeline
(1) A service provider may, in respect of a pipeline by means
of which the service provider provides pipeline services,
apply to the NCC for the pipeline to be reclassified as--
(a) if the pipeline is a transmission pipeline--a
distribution pipeline; or
(b) if the pipeline is a distribution pipeline--a
transmission pipeline.
(2) The application must be accompanied by the fee prescribed
by the Regulations (if any).
129. Reclassification decision
(1) The NCC must make a decision (a reclassification
decision) within--
(a) 4 months after receiving an application under
section 128; or
(b) if the Rules specify a later period, that period.
(2) A reclassification decision must--
(a) be made in accordance with this Law and the
Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the
Rules.
(3) In making a reclassification decision, the NCC must have
regard to--
(a) the national gas objective; and
(b) the pipeline classification criterion.
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(4) The NCC must also as part of the reclassification
decision--
(a) if it reclassifies the pipeline the subject of the
application as a transmission pipeline--determine
whether the transmission pipeline is also a cross
boundary transmission pipeline;
(b) if it reclassifies the pipeline the subject of the
application as a distribution pipeline--determine
whether the distribution pipeline is also a cross
boundary distribution pipeline.
(5) If, under subsection (4), the NCC determines that a
pipeline reclassified as a distribution pipeline is also a
cross boundary distribution pipeline, the NCC must
determine the participating jurisdiction with which the
cross boundary distribution pipeline is most closely
connected. In doing so, the NCC must have regard to the
jurisdictional determination criteria.
130. Effect of reclassification decision
On the making of a reclassification decision--
(a) the pipeline is, in accordance with the decision,
reclassified as either a transmission pipeline or
distribution pipeline; and
(b) the relevant Minister in respect of the pipeline is
the relevant Minister as provided under this Law.
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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
A covered pipeline service provider must not provide a
pipeline service by means of a covered pipeline unless the
service provider is--
(a) a legal entity registered under the Corporations
Act 2001 of the Commonwealth; or
(b) a foreign company; or
(c) a corporation established by or under a law of this
jurisdiction or another participating jurisdiction,
whether or not that corporation has been
established for a public purpose; or
(d) the Crown in right of this jurisdiction or another
participating jurisdiction; or
(e) a person referred to in paragraph (a) to (d) and that
person provides a pipeline service by means of a
covered pipeline together with another person
referred to in paragraph (a) to (d).
132. Submission of full access arrangement or revisions to
applicable full access arrangements
(1) A covered pipeline service provider must submit to the
AER, for approval by the AER under the Rules, a full
access arrangement or revisions to an applicable access
arrangement that is a full access arrangement, in respect of
the pipeline services the provider provides or intends to
provide--
(a) in the circumstances specified by the Rules; and
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(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.
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Example--
An example of conduct which may be prohibited if the requisite
purpose is established is refusing to supply, or limiting or disrupting
the supply of, a pipeline service to a user or prospective user for
technical or safety reasons without reasonable grounds.
134. Supply and haulage of natural gas
(1) If a producer states terms and conditions (whether or not
including the price) (the first terms) on which the producer
offers to supply natural gas through a covered pipeline that
is in operation at the time of the offer to a person at a place
other than the exit flange of the producer's processing
plant, the producer must, on request by the person, state
terms and conditions (including the price, if the price was
included in the first terms) (the second terms) on which the
producer will supply natural gas to the person at the exit
flange.
(2) If there is a difference in the price stated in the first terms
and the second terms, the producer must include in the
second terms a statement of the reasons for the difference.
(3) If the producer offers to supply natural gas to a person at a
place other than the exit flange of the producer's
processing plant, the producer must, on request, offer to
supply the gas at the exit flange on the terms and
conditions (including price) stated in accordance with this
section.
135. Covered pipeline service provider must comply with
queuing requirements
A covered pipeline service provider must comply with the
queuing requirements of an applicable access arrangement.
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136. Covered pipeline service provider providing light regulation
services must not price discriminate
(1) A covered pipeline service provider must not engage in
price discrimination when providing light regulation
services.
(2) Subsection (1) does not apply if the covered pipeline
service provider engages in price discrimination that is
conducive to efficient service provision.
Part 2 -- Structural and operational separation requirements
(ring fencing)
Division 1 -- Interpretation
137. Definitions
In this Part--
additional ring fencing requirement has the meaning
given by section 143(1);
compliance date means the date that is 6 months after the
date a pipeline becomes a covered pipeline;
marketing staff has the meaning given by section 138;
related business means the business of producing,
purchasing or selling natural gas or processable gas, but
does not include purchasing or selling of natural gas or
processable gas to the extent necessary--
(a) for the safe and reliable operation of a covered
pipeline; or
(b) to enable a service provider to provide balancing
services in connection with a covered pipeline.
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138. Meaning of marketing staff
(1) A person is marketing staff of--
(a) a covered pipeline service provider, if the
person--
(i) is an officer, employee, consultant or
independent contractor or agent of the
covered pipeline service provider; and
(ii) is directly involved in the sale, marketing
or advertising of pipeline services
(whether or not the person is also
involved in other activities);
(b) an associate of a covered pipeline service provider,
if the person--
(i) is an officer, employee, consultant or
independent contractor or agent of the
associate; and
(ii) is directly involved in the sale, marketing
or advertising of pipeline services
(whether or not the person is also
involved in other activities).
(2) A person is not marketing staff of a covered pipeline
service provider, or an associate of a covered pipeline
service provider, if--
(a) the person's function or role (as an officer,
employee, consultant or independent contractor or
agent of a covered pipeline service provider, or an
associate of a covered pipeline service provider) is
only to provide technical, administrative, legal and
accounting services to that provider or associate;
or
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(b) the sale, marketing or advertising of pipeline
services is only an incidental part of the person's
function or role (as an officer, employee,
consultant or independent contractor or agent of a
covered pipeline service provider, or an associate
of a covered pipeline service provider).
Example--
A person in the position of general manager of marketing of a
covered pipeline service provider or an associate of a covered
pipeline service provider would be marketing staff whereas a person
in the position of chief executive officer, or chief financial officer,
of a covered pipeline service provider or an associate of a covered
pipeline service provider would not be marketing staff.
Division 2 -- Minimum ring fencing requirements
139. Carrying on of related businesses prohibited
On and after the compliance date, a covered pipeline
service provider must not carry on a related business.
140. Marketing staff and the taking part in related businesses
(1) On and after the compliance date, a covered pipeline
service provider must ensure that none of its marketing
staff are officers, employees, consultants, independent
contractors or agents of an associate of the covered pipeline
service provider that takes part in a related business.
(2) On and after the compliance date, a covered pipeline
service provider must ensure that none of its officers,
employees, consultants, independent contractors or agents
are marketing staff of an associate of the covered pipeline
service provider that takes part in a related business.
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141. Accounts that must be prepared, maintained and kept
On and after the compliance date, a covered pipeline
service provider must prepare, maintain and keep--
(a) separate accounts in respect of pipeline services
provided by means of every covered pipeline
owned, operated or controlled by the covered
pipeline service provider; and
(b) a consolidated set of accounts in respect of the
whole of the business of the covered pipeline
service provider.
Division 3 -- Additional ring fencing requirements
142. Division does not limit operation of Division 2
This Division does not limit Division 2.
143. AER ring fencing determinations
(1) Subject to this Division and subject to and in accordance
with the Rules, the AER may make a determination
requiring a covered pipeline service provider or associate
of a covered pipeline service provider named in the
determination to do, or refrain from doing, a thing
specified in the determination (an additional ring fencing
requirement).
(2) In specifying an additional ring fencing requirement the
AER must have regard to the following principles:
(a) in the case where 1 part of the business of a
covered pipeline service provider (business
unit A) is providing pipeline services to another
part of the business of the covered pipeline service
provider (business unit B), the covered pipeline
service provider must ensure that business unit A
provides the pipeline services to business unit B as
if business unit B were a separate unrelated entity;
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(b) in the case where a covered pipeline service
provider is providing pipeline services to an
associate of the service provider, the covered
pipeline service provider must ensure that those
services are provided as if the associate of the
covered pipeline service provider were a separate
unrelated entity;
(c) users and prospective users should have sufficient
information in order to understand whether a
covered pipeline service provider is complying
with paragraph (a) or (b).
(3) The AER must--
(a) notify, in writing, the covered pipeline service
provider or associate named in the AER ring
fencing determination of the making of that
determination; and
(b) give the covered pipeline service provider or
associate a copy of the AER ring fencing
determination.
(4) An AER ring fencing determination must specify the date
on and after which the covered pipeline service provider or
associate of a covered pipeline service provider must do, or
refrain from doing, a thing specified in the determination (a
notified compliance date).
(5) A notified compliance date must not be a date that is earlier
than 10 business days after the date the covered pipeline
service provider or associate of a covered pipeline service
provider is given a copy of the AER ring fencing
determination.
(6) A covered pipeline service provider or associate of a
covered pipeline service provider must comply with every
additional ring fencing requirement specified in an AER
ring fencing determination on and after the notified
compliance date.
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144. AER to have regard to likely compliance costs of additional
ring fencing requirements
In making an AER ring fencing determination the AER
must have regard to the likely costs that may be incurred
by, as the case requires--
(a) an efficient covered pipeline service provider; or
(b) an efficient associate of a covered pipeline service
provider,
in complying with an additional ring fencing requirement
specified in the determination.
145. Types of ring fencing requirements that may be specified in
an AER ring fencing determination
Without limiting what may be specified as an additional
ring fencing requirement, the AER, in an AER ring fencing
determination, may require a covered pipeline service
provider to--
(a) ensure that its business and business activities are
conducted, structured and arranged in the
particular manner specified;
Example 1--
An AER ring fencing determination may require
the covered pipeline service provider to ensure
that persons employed or engaged by the
covered pipeline service provider in relation to
the provision of pipeline services are not also
associates, or employed by associates, of the
covered pipeline service provider that take part
in a related business and how this must be
effected.
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Example 2--
An AER ring fencing determination may require
the covered pipeline service provider to put in
place electronic, physical and procedural
security measures in respect of the offices and
computer systems of the covered pipeline
service provider, and of the offices and
computer systems of its associates, so that
certain specified employees or persons engaged
by the covered pipeline service provider do not
have access to certain specified information.
(b) in a specified manner, disclose, to the AER and to
the public, specified information in a specified
manner about its business operations, structure and
arrangements, and its business activities.
Division 4 -- AER ring fencing exemptions
146. Exemptions from minimum ring fencing requirements
(1) A covered pipeline service provider may, in accordance
with the Rules, apply to the AER for an exemption from--
(a) the requirement under section 139; or
(b) a requirement under section 140; or
(c) the requirement under section 141.
(2) On receiving an application under subsection (1), the AER,
subject to and in accordance with the Rules, may exempt a
covered pipeline service provider from--
(a) the requirement under section 139; or
(b) a requirement under section 140; or
(c) the requirement under section 141.
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s. 147
Division 5 -- Associate contracts
147. Service provider must not enter into or give effect to
associate contracts that have anti-competitive effect
A covered pipeline service provider must not--
(a) enter into an associate contract that has; or
(b) vary an associate contract so that contract, as
varied, has; or
(c) give effect to a provision of an associate contract
that has,
the purpose, or would have or be likely to have the effect,
of substantially lessening competition in a market for
natural gas services unless--
(d) that associate contract is an approved associate
contract; or
(e) that provision is contained in an approved
associate contract.
148. Service provider must not enter into or give effect to
associate contracts inconsistent with competitive parity rule
(1) A covered pipeline service provider must not--
(a) enter into an associate contract that is; or
(b) vary an associate contract so that contract, as
varied, is; or
(c) give effect to a provision of an associate contract
that is,
inconsistent with the competitive parity rule unless--
(d) that associate contract is an approved associated
contract; or
(e) that provision is contained in an approved
associate contract.
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(2) For the purposes of subsection (1), and any Rules made for
the purposes of that subsection, the competitive parity rule
is the rule that a covered pipeline service provider must
ensure that any pipeline services that the covered pipeline
service provider provides to an associate of the covered
pipeline service provider are provided to that associate as if
that associate were a separate unrelated entity.
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Part 1 Interpretation
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Chapter 5 -- Greenfields pipeline incentives
Part 1 -- Interpretation
149. Definitions
In this Chapter--
excluded infrastructure, in relation to a pipeline, means
tanks, reservoirs, machinery, equipment or other
infrastructure that forms part of the pipeline but is
classified by the Rules as excluded infrastructure for the
purposes of this Law;
greenfields pipeline project means a project for the
construction of--
(a) a pipeline that is to be structurally separate from
any existing pipeline (whether or not it is to
traverse a route different from the route of an
existing pipeline); or
(b) a major extension to an existing pipeline that is not
a covered pipeline; or
(c) a major extension to a covered pipeline by means
of which light regulation services are provided if
that extension is exempted by the AER under
section 19.
150. International pipeline to be a transmission pipeline for
purposes of Chapter
An international pipeline is, for the purposes of this
Chapter, a transmission pipeline.
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Part 2 -- 15-year no-coverage determinations
151. Application for 15-year no-coverage determination for
proposed pipeline
(1) If a greenfields pipeline project is proposed, or has
commenced, the service provider may, before the pipeline
is commissioned, apply for a determination (a 15-year
no-coverage determination) exempting the pipeline from
being a covered pipeline.
(2) If a price regulation exemption has been granted for an
international pipeline, an application for a 15-year
no-coverage determination for the pipeline may be made
by the service provider--
(a) before the pipeline is commissioned; or
(b) after the pipeline is commissioned but before the
term of the price regulation exemption comes to an
end.
(3) An application for a 15-year no-coverage determination--
(a) is to be made to the NCC; and
(b) must include a description of the pipeline that
meets the requirements specified by the Rules; and
(c) must contain the information required by the
Rules; and
(d) need not describe, or include details of, excluded
infrastructure; and
(e) must be accompanied by the fee prescribed by the
Regulations (if any).
(4) In this section--
service provider includes a person that intends to be a
service provider.
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152. Application to be dealt with in accordance with the Rules
On receiving an application under section 151, the NCC
must deal with it in accordance with the Rules.
153. No-coverage recommendation
(1) The NCC must make a recommendation recommending to
the relevant Minister that the pipeline the subject of the
application--
(a) be exempted from being a covered pipeline for a
period of 15 years; or
(b) not be exempted from being a covered pipeline for
a period of 15 years.
(2) A recommendation under this section must--
(a) be made in accordance with this Law and the
Rules; and
(b) be made within the time specified by the Rules;
and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the
Rules.
(3) A recommendation under this section may recommend an
outcome different to the outcome sought in the application
under section 151.
Example--
An applicant may apply for a 15-year no-coverage
determination in relation to the whole pipeline. The NCC
may recommend that only a part of the pipeline the
subject of the application be subject to a 15-year
no-coverage determination.
(4) A recommendation under this section must be delivered to
the relevant Minister without delay.
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154. Principles governing the making of a no-coverage
recommendation
(1) In making a no-coverage recommendation, the NCC--
(a) must give effect to the pipeline coverage criteria;
and
(b) in deciding whether or not the pipeline coverage
criteria are satisfied must have regard to the
national gas objective.
(2) The NCC gives effect to the pipeline coverage criteria as
follows:
(a) if the NCC is satisfied that all the pipeline
coverage criteria are satisfied in relation to the
pipeline the recommendation must be against
making a 15-year no-coverage determination;
(b) if the NCC is not satisfied that all the pipeline
coverage criteria are satisfied in relation to the
pipeline the recommendation must be in favour of
making a 15-year no coverage determination.
155. Initial classification decision to be made as part of
recommendation
(1) If the pipeline the subject of an application under
section 151 is not an international pipeline, the NCC must,
as part of a no-coverage recommendation, classify the
pipeline as a transmission pipeline or a distribution pipeline
(an initial classification decision). In doing so, the NCC
must apply the pipeline classification criterion.
(2) The NCC must as part of an initial classification
decision--
(a) if it classifies the pipeline the subject of the
application as a transmission pipeline--determine
whether the transmission pipeline is also a cross
boundary transmission pipeline; or
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(b) if it classifies the pipeline the subject of the
application as a distribution pipeline--determine
whether the distribution pipeline is also a cross
boundary distribution pipeline.
(3) The NCC must also determine, as part of an initial
classification decision, the participating jurisdiction with
which the pipeline the subject of the application under
section 151 is most closely connected if the NCC
determines the pipeline is also a cross boundary
distribution pipeline. In doing so, the NCC must have
regard to the jurisdictional determination criteria.
156. Relevant Minister's determination on application
(1) On receiving a no-coverage recommendation the relevant
Minister must decide whether or not to make a 15-year
no-coverage determination in respect of the pipeline to
which the recommendation relates.
(2) The relevant Minister must use his or her best endeavours
to make the decision within 30 business days after
receiving the coverage recommendation.
(3) If the relevant Minister is unable to make the decision
within the period specified under subsection (2), he or she
must make the decision as soon as reasonably practicable
after the end of the specified period.
(4) The relevant Minister, for the purpose of making the
decision, may request submissions or comments in relation
to an application under section 151.
(5) A 15-year no-coverage determination or a decision not to
make a 15-year no-coverage determination must--
(a) be made in accordance with this Law and the
Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
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(d) be made publicly available in accordance with the
Rules.
(6) A 15-year no-coverage determination may have an
outcome different to the outcome--
(a) sought in the application under section 151; or
(b) of the no-coverage recommendation.
Example--
An applicant may apply for a 15-year no-coverage
determination in relation to the whole pipeline. The NCC
may recommend that only a part of the pipeline the
subject of the application be subject to a 15-year
no-coverage determination. The relevant Minister may
make a 15-year no-coverage determination that applies to
different parts of the pipeline to those recommended by
the NCC be subject to the determination.
157. Principles governing the making of a 15-year no-coverage
determination or decision not to do so
(1) In deciding whether to make a 15-year no-coverage
determination under this Part, the relevant Minister--
(a) must give effect to the pipeline coverage criteria;
and
(b) in deciding whether or not the pipeline coverage
criteria are satisfied in relation to the pipeline--
(i) must have regard to the national gas
objective; and
(ii) must have regard to the no-coverage
recommendation; and
(iii) must take into account any submissions or
comments he or she receives on a request
under section 156(4); and
(iv) may take into account any relevant
submissions and comments made to the
NCC by the public under the Rules in
relation to the application.
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(2) The relevant Minister gives effect to the pipeline coverage
criteria as follows:
(a) if the Minister is satisfied that all the pipeline
coverage criteria are satisfied in relation to the
pipeline the Minister must not make a 15-year
no-coverage determination;
(b) if the Minister is not satisfied that all the pipeline
coverage criteria are satisfied in relation to the
pipeline the Minister must make a 15-year
no-coverage determination.
158. Effect of 15-year no-coverage determination
(1) A 15-year no-coverage determination--
(a) takes effect on and from the date specified in the
determination; and
(b) continues in operation for a period of 15 years
from the commissioning of the pipeline.
(2) An application for coverage of a pipeline to which a
15-year no-coverage determination applies can be made
before the end of the period for which the determination
remains in operation only if the coverage sought in the
application is to commence from, or after, the end of that
period.
159. Consequences of Minister deciding against making 15-year
no-coverage determination for international pipeline
(1) If--
(a) the Commonwealth Minister decides against
making a 15-year no-coverage determination for
an international pipeline; and
(b) the applicant asks the Commonwealth Minister to
treat the application as an application for a price
regulation exemption,
the Commonwealth Minister may treat the application as
an application for a price regulation exemption under
Chapter 5 Part 3.
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(2) If the Commonwealth Minister decides to treat an
application for a 15-year no-coverage determination as an
application for a price regulation exemption, the
Commonwealth Minister may--
(a) refer the application to the NCC for a
recommendation under Chapter 5 Part 3; or
(b) proceed to determine the application without a
recommendation under Chapter 5 Part 3.
Part 3 -- Price regulation exemptions
Division 1 -- Application for price regulation exemption
160. Application for price regulation exemption
(1) If a greenfields pipeline project for construction of an
international pipeline is proposed, or has commenced, the
service provider may, before the pipeline is commissioned,
apply for a price regulation exemption for the pipeline.
(2) An application for a price regulation exemption--
(a) is to be made to the NCC; and
(b) must include a description of the pipeline that
meets the requirements specified by the Rules; and
(c) must contain the information required by the
Rules; and
(d) need not describe, or include details of, excluded
infrastructure; and
(e) must be accompanied by the fee prescribed by the
Regulations (if any).
(3) In this section--
service provider includes a person that intends to be a
service provider.
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Division 2 -- Recommendations by NCC
161. Application to be dealt with in accordance with the Rules
On receiving an application under section 160, the NCC
must deal with it in accordance with the Rules.
162. NCC's recommendation
(1) The NCC must make a recommendation to the
Commonwealth Minister as to whether the Minister should
grant a price regulation exemption for the pipeline the
subject of the application.
(2) A recommendation under this section must--
(a) be made in accordance with this Law and the
Rules; and
(b) be made within the time specified by the Rules;
and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the
Rules.
(3) A recommendation under this section must be delivered to
the Commonwealth Minister without delay.
163. General principle governing NCC's recommendation
(1) In making its recommendation on an application for a price
regulation exemption, the NCC must weigh the benefits to
the public of granting the exemption against the detriments
to the public.
(2) In doing so, the NCC--
(a) must have regard to the national gas objective with
particular reference to--
(i) the implications of the exemption for
relevant markets (including the effect on
market power); and
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(ii) other possible effects on the public
interest; and
(b) may have regard to any other relevant matter.
Division 3 -- Making and effect of price regulation exemption
164. Making of price regulation exemption
(1) On receiving the NCC's recommendation under
section 162, the Commonwealth Minister must decide
whether to grant a price regulation exemption.
(2) The Commonwealth Minister must use his or her best
endeavours to make the decision within 10 business days
after receiving the NCC's recommendation.
(3) If the Commonwealth Minister is unable to make the
decision within the period specified under subsection (2),
he or she must make the decision as soon as reasonably
practicable after the end of the specified period.
(4) A decision under this section must--
(a) be made in accordance with this Law and the
Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the
Rules.
165. Principles governing the making of a price regulation
exemption
(1) In deciding whether to make a decision to grant a price
regulation exemption, the Commonwealth Minister must
weigh the benefits to the public of granting the exemption
against the detriments to the public.
(2) In doing so, the Commonwealth Minister--
(a) must have regard to the national gas objective with
particular reference to--
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(i) the implications of the exemption for
relevant markets (including the effect on
market power); and
(ii) other possible effects of the exemption on
the public interest; and
(b) must have regard to the NCC's recommendation;
and
(c) may take into account any relevant submissions
and comments made to the NCC by the public
under the Rules in relation to the application; and
(d) may have regard to any other relevant matter.
166. Conditions applying to a price regulation exemption
A price regulation exemption granted under this Part is
subject to the following conditions:
(a) the service provider must publish on its website
prices for the provision of pipeline services by
means of the international pipeline; and
(b) the service provider's limited access arrangement
and the register of spare capacity are to be
accessible on the service provider's website; and
(c) the service provider--
(i) must, as and when required by the AER
or the Commonwealth Minister, provide
information requested by the AER or the
Commonwealth Minister (in a manner
and form determined or approved by the
AER or the Commonwealth Minister) on
access negotiations and the result of
access negotiations; and
(ii) must report annually to the AER and the
Commonwealth Minister (in a manner
and form approved by the AER or the
Commonwealth Minister) on access
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negotiations and the result of access
negotiations.
Note--
See also sections 168 and 169(3).
167. Effect of price regulation exemption
(1) If a price regulation exemption is granted, then for a period
of 15 years from the commissioning of the pipeline, the
services provided by means of the pipeline are not subject
to price or revenue regulation under this Law or the Rules.
(2) A price regulation exemption is, however, ineffective
unless a limited access arrangement, approved by the AER,
is in force in relation to the relevant pipeline.
Note--
See also section 168.
(3) If, while a price regulation exemption remains in force, the
Commonwealth Minister makes a 15-year no-coverage
determination for the pipeline, the 15-year no-coverage
determination supersedes the price regulation exemption
(which is then terminated) and remains in force for the
balance of the period for which the exemption was granted.
(4) An application for coverage of a pipeline to which a price
regulation exemption applies can only be made before the
end of the period of exemption if the coverage sought in
the application is to commence from, or after, the end of
that period.
Division 4 -- Limited access arrangements
168. Limited access arrangements for pipeline services provided
by international pipeline to which a price regulation
exemption applies
(1) A service provider must, within 60 business days after the
grant of a price regulation exemption, submit a limited
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access arrangement to the AER for approval by the AER
under the Rules.
(2) A limited access arrangement must--
(a) be submitted in accordance with the Rules; and
(b) contain the information required by the Rules.
(3) A service provider must submit to the AER, for approval
by the AER under the Rules, revisions to an applicable
access arrangement that is a limited access arrangement
and that applies to the pipeline service to which that
arrangement applies--
(a) in accordance with the Rules; and
(b) within the period specified by the Rules.
Division 5 -- Other matters
169. Other obligations to which service provider is subject
(1) The service provider for a pipeline to which a price
regulation exemption applies is subject to the following
provisions as if the pipeline were a covered pipeline:
(a) Chapter 4 Part 1 (except sections 132 and 136);
and
(b) Chapter 4 Part 2.
(2) The service provider for a pipeline to which a price
regulation exemption applies must comply with any Rules
that--
(a) relate to the facilitation of, and request for access
to, pipeline services provided by means of that
pipeline; and
(b) apply to the service provider or a class of person
of which the service provider is a member.
(3) A service provider must ensure compliance with conditions
to which the price regulation exemption is subject.
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Note--
See also section 160.
170. Service provider must not price discriminate in providing
international pipeline services
(1) A service provider must not, when providing pipeline
services--
(a) by means of an international pipeline to which a
price regulation exemption applies; and
(b) to which a limited access arrangement applies,
engage in price discrimination.
(2) Subsection (1) does not apply if the service provider
engages in price discrimination that is conducive to
efficient service provision.
Part 4 -- Extended or modified application of greenfields
pipeline incentive
171. Requirement for conformity between pipeline description
and pipeline as constructed
(1) Subject to this Part--
(a) a greenfields pipeline incentive applies to the
pipeline as described in the relevant pipeline
description; and
(b) if the pipeline, as constructed, materially differs
from the pipeline as described in the relevant
pipeline description, the incentive does not attach
to the pipeline and the service provider is not
entitled to its benefit.
(2) In determining whether a pipeline, as constructed,
materially differs from the relevant pipeline description,
excluded infrastructure is not to be taken into account.
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(3) In this section--
relevant pipeline description means a description of a
pipeline required to be included in an application under
section 151 or 160.
172. Power of relevant Minister to amend pipeline description
(1) The relevant Minister may, on application by the service
provider for a pipeline for which a greenfields pipeline
incentive has been granted, amend the relevant pipeline
description.
(2) An amendment cannot, however, be made under this
section after the pipeline has been commissioned.
(3) The relevant Minister--
(a) may refer an application for amendment to a
pipeline description to the NCC for advice; and
(b) if the amendment sought involves a substantial
change to the pipeline description as it currently
exists must refer the application to the NCC for
advice.
(4) In giving its advice to the relevant Minister, the NCC must
have regard to the criteria that were relevant to the grant of
the greenfields pipeline incentive.
(5) In deciding whether to make the amendment sought, the
relevant Minister--
(a) must have regard to the criteria that were relevant
to the grant of the greenfields pipeline incentive;
and
(b) if the application has been referred to the NCC for
advice must consider the NCC's advice.
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Part 5 -- Early termination of greenfields pipeline incentive
173. Greenfields pipeline incentive may lapse
(1) A greenfields pipeline incentive lapses if the pipeline for
which it was granted is not commissioned within 3 years
after the incentive was granted.
(2) The Regulations may, in a particular case, extend the
period of 3 years referred to in subsection (1).
174. Revocation by consent
The relevant Minister may, at the request of the service
provider, revoke a greenfields pipeline incentive.
175. Revocation for misrepresentation
The relevant Minister may, on application by the AER,
revoke a greenfields pipeline incentive on the ground
that--
(a) the applicant misrepresented a material fact on the
basis of which the application was granted; or
(b) the applicant failed to disclose material
information that the applicant was required to
disclose under this Chapter.
176. Revocation for breach of condition to which a price
regulation exemption is subject
The Commonwealth Minister, on application by the AER,
may revoke a price regulation exemption on the ground
that the service provider has breached a condition to which
the price regulation exemption is subject.
177. Exhaustive provision for termination of greenfields pipeline
incentive
A greenfields pipeline incentive does not terminate, and
cannot be revoked, before the end of its term except as
provided in this Part.
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Chapter 6 -- Access disputes
Part 1 -- Interpretation and application
178. Definitions
In this Chapter--
access dispute means a dispute between a user or
prospective user and a service provider about 1 or more
aspects of access to a pipeline service provided by means
of a scheme pipeline;
access dispute pipeline means a scheme pipeline used or
that could be used to provide a pipeline service that is the
subject of an access dispute;
dispute hearing means a hearing conducted by the dispute
resolution body for the purpose of making an access
determination;
party, in relation to an access dispute, has the meaning
given by section 183.
179. Chapter does not limit how disputes about access may be
raised or dealt with
This Chapter is not to be taken to limit how a dispute about
access to a pipeline service may be raised or dealt with.
180. No price or revenue regulation for access disputes relating
to international pipeline services
An access dispute notified under this Chapter in relation to
a pipeline service provided by means of an international
pipeline to which a price regulation exemption applies
must not be resolved under this Chapter on terms--
(a) regulating the price at which a service is to be
provided by the service provider; or
(b) limiting the revenue to be derived by the service
provider from the provision of a service.
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Part 2 -- Notification of access dispute
181. Notification of access dispute
(1) Subject to this section, if a prospective user or user is
unable to agree with a service provider about 1 or more
aspects of access to a pipeline service provided or to be
provided by means of a scheme pipeline, the prospective
user, user or service provider may notify the dispute
resolution body, in writing, that an access dispute exists.
Note--
A dispute about access to a light regulation service may be
notified under this section because light regulation
services are pipeline services provided by means of a
covered pipeline (which is a scheme pipeline).
(2) A notification must be accompanied by the fee prescribed
by the Regulations (if any).
(3) On receiving a notification under subsection (1), the
dispute resolution body must notify, in writing, of the
access dispute--
(a) the service provider, if a prospective user or user
(as the case requires) notified the dispute
resolution body of the access dispute under
subsection (1);
(b) the prospective user or user (as the case requires),
if the service provider notified the dispute
resolution body of the access dispute under
subsection (1).
181A. Providing information for certain disputes
(1) If the dispute resolution body for a dispute notified under
section 181(1) is the WA arbitrator --
(a) the WA arbitrator is to inform the ERA that
notification of the dispute has been received; and
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(b) the WA arbitrator may request the ERA to give the
WA arbitrator any information in the ERA's
possession that is relevant to the dispute.
(2) The ERA is to give the WA arbitrator the information
requested, whether or not it is confidential and whether or not
it came into the ERA's possession for the purposes of
resolving the dispute.
(3) If the ERA gives the WA arbitrator information that is
confidential, the ERA is to identify the nature and extent of
the confidentiality and the WA arbitrator is to treat the
information accordingly.
182. Withdrawal of notification
(1) The person who notified the dispute resolution body of an
access dispute under section 181(1) may withdraw that
notification at any time before the dispute resolution body
makes an access determination in respect of that access
dispute.
(2) The notification must be withdrawn by notice in writing.
(3) If the notification is withdrawn, it must be taken, for the
purposes of this Chapter, never to have been given.
183. Parties to an access dispute
The parties to an access dispute are--
(a) the person notifying the dispute resolution body of
an access dispute under section 181(1); and
(b) a person notified by the dispute resolution body
under section 181(3); and
(c) if the dispute resolution body is of the opinion that
the resolution of the access dispute may involve
requiring another person to do something--that
other person; and
(d) any other person who applies in writing to be
made a party and is accepted by the dispute
resolution body as having a sufficient interest.
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Access determinations Part 3
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Part 3 -- Access determinations
184. Determination of access dispute
(1) Unless the dispute resolution body terminates an access
dispute under section 186, the dispute resolution body must
make a determination on access by the prospective user or
user, as the case requires.
(2) In making an access determination the dispute resolution
body must comply with this Chapter and the Rules.
(3) An access determination must--
(a) be in writing; and
(b) include a statement of reasons for making the
determination; and
(c) be given to the parties without delay.
(4) An access determination has effect on and after the date
specified in the determination.
185. Dispute resolution body may require parties to mediate,
conciliate or engage in an alternative dispute resolution
process
(1) The dispute resolution body may require the parties, in
accordance with the Rules, to mediate, conciliate or engage
in another alternative dispute resolution process for the
purpose of resolving the dispute.
(2) A party must comply with a requirement under
subsection (1).
186. Dispute resolution body may terminate access dispute in
certain cases
(1) The dispute resolution body may at any time terminate an
access dispute (without making an access determination) if
the dispute resolution body considers that--
(a) the notification of the access dispute was
vexatious; or
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(b) the subject matter of the dispute is trivial,
misconceived or lacking in substance; or
(c) the party who notified the access dispute had, but
did not avail itself of, an opportunity to engage in
negotiations in good faith with the other party
before that notification; or
(d) a specified dispute termination circumstance has
occurred.
(2) Subject to section 188, the dispute resolution body may
also terminate an access dispute (without making an access
determination) if the dispute resolution body considers that
the aspect of access about which there is a dispute is
expressly or impliedly dealt with under a contract between,
as the case requires--
(a) the prospective user and service provider;
(b) the user and service provider.
(3) In this section--
specified dispute termination circumstance means a
circumstance specified by the Rules as being a
circumstance, the occurrence of which, entitles the dispute
resolution body to terminate an access dispute (without
making an access determination).
187. No access determination if dispute resolution body considers
there is genuine competition
Despite anything to the contrary in this Chapter, the dispute
resolution body may refuse to make an access
determination that requires the service provider to provide
a particular pipeline service to a prospective user or user if
the dispute resolution body considers that the pipeline
service the subject of the access dispute could be provided
on a genuinely competitive basis by a person other than the
service provider or an associate of the service provider.
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188. Restrictions on access determinations
(1) The dispute resolution body must not make an access
determination that would have any of the following effects:
(a) preventing a user obtaining a sufficient amount of
a pipeline service under a contract or previous
access determination to be able to meet the user's
reasonably anticipated requirements, measured at
the time the access dispute was notified;
(b) preventing a prospective user or user from
obtaining, by the exercise of a pre-notification
right, a sufficient amount of a pipeline service to
be able to meet the prospective user's or user's
actual requirements;
(c) depriving a person of a relevant protected
contractual right.
(2) In this section--
pre-notification right means a right under a contract, or
under an access determination, that was in force at the time
when the access dispute was notified under section 181;
relevant exclusivity right means an express contractual
right that arose on or after 30 March 1995 that--
(a) prevents a service provider supplying pipeline
services to persons who are not parties to the
contract; or
(b) limits or controls a service provider's ability to
supply pipeline services to persons who are not
parties to the contract,
but does not include a user's contractual right to obtain a
certain amount of pipeline services;
relevant protected contractual right means a right under a
contract (other than a relevant exclusivity right) that was in
force immediately before the notification of an access
dispute under section 181.
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189. Access determination must give effect to applicable access
arrangement
Subject to sections 190 and 191 and any Rules made for
the purposes of this Part, the dispute resolution body must,
in making an access determination, give effect to the
applicable access arrangement--
(a) applying to the pipeline services provided, or to be
provided, by means of the access dispute pipeline;
and
(b) in effect at the time the determination is made,
(even though that arrangement may not have been in force
when notification of the access dispute was given).
190. Access determinations and past contributions of capital to
fund installations or the construction of new facilities
(1) In making an access determination, the dispute resolution
body may (where relevant) take into account past
contributions of capital to fund installations or the
construction of new facilities.
(2) Without limiting section 74, the Rules may--
(a) specify the matters that the dispute resolution body
must address in making that access determination;
(b) specify the content of that access determination.
191. Rules may allow determination that varies applicable access
arrangement for installation of a new facility
(1) This section applies if the dispute resolution body is
proposing to make an access determination that will
require--
(a) a service provider to install or construct a new
facility to expand the capacity of the access
dispute pipeline; and
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(b) the prospective user or user who is a party to the
access dispute to contribute some or all of the
capital to fund the installation or construction of
the new facility.
(2) Without limiting section 74, the Rules may--
(a) confer a function or power on the dispute
resolution body to, when making the access
determination, vary the applicable access
arrangement; and
(b) specify the matters that the dispute resolution body
must address in making that access determination;
and
(c) specify the kinds of variations that may be made to
the applicable access arrangement; and
(d) specify the content of that access determination.
192. Access determinations need not require the provision of a
pipeline service
An access determination may, but need not, require a
service provider to provide a pipeline service to a
prospective user.
193. Content of access determinations
Subject to this Chapter, an access determination may deal
with any matter relating to the provision of a pipeline
service to a prospective user or user.
Example--
An access determination may require the service provider
to provide a pipeline service to the prospective user or
user at--
(a) a specified tariff, rate or charge; and
(b) on specified terms and conditions.
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Part 4 -- Variation of access determinations
194. Variation of access determination
(1) The dispute resolution body may vary an access
determination on the application of any party to the
determination. However, it cannot vary the final
determination if any other party objects.
Note--
If the parties cannot agree on a variation, a new access
dispute can be notified under section 181.
(2) Section 188 applies to a variation under this section as if--
(a) an access dispute arising out of the access
determination had been notified when the
application was made to the dispute resolution
body for the variation of the determination; and
(b) the variation were the making of an access
determination in the terms of the varied
determination.
Part 5 -- Compliance with access determinations
195. Compliance with access determination
A party to an access dispute in respect of which an access
determination is made must comply with the access
determination.
Part 6 -- Access dispute hearing procedure
196. Hearing to be in private
(1) Subject to subsection (2), a dispute hearing is to be in
private.
(2) If the parties agree, a dispute hearing or part of a dispute
hearing may be conducted in public.
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(3) The dispute resolution body may give written directions as
to the persons who may be present at a dispute hearing that
is conducted in private.
(4) In giving directions under subsection (3), the dispute
resolution body must have regard to the wishes of the
parties and the need for commercial confidentiality.
197. Right to representation
In a dispute hearing a party may appear in person or be
represented by another person.
198. Procedure of dispute resolution body
(1) In a dispute hearing the dispute resolution body--
(a) is not bound by technicalities, legal forms or rules
of evidence; and
(b) must act as speedily as a proper consideration of
the access dispute allows, having regard to the
need to carefully and quickly inquire into and
investigate the access dispute and all matters
affecting the merits, and fair settlement, of the
access dispute; and
(c) may inform itself about any matter relevant to the
access dispute in any way it thinks appropriate.
(2) The dispute resolution body may determine the periods that
are reasonably necessary for the fair and adequate
presentation of the respective cases of the parties in the
dispute hearing, and may require that the cases be
presented within those periods.
(3) The dispute resolution body may require evidence or
argument to be presented in writing, and may decide the
matters on which the dispute resolution body will hear oral
evidence or argument.
(4) The dispute resolution body may determine that a dispute
hearing is to be conducted by--
(a) telephone; or
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(b) closed circuit television; or
(c) any other means of communication.
(5) The Rules may make further provision about the procedure
for the conduct of dispute hearings.
199. Particular powers of dispute resolution body in a hearing
(1) The dispute resolution body may do any of the following
things for the purpose of determining an access dispute:
(a) give a direction in the course of, or for the purpose
of, a dispute hearing;
(b) hear and determine the access dispute in the
absence of a party who has been given notice of
the dispute hearing;
(c) sit at any place;
(d) adjourn to any time and place;
(e) refer any matter to an independent expert and
accept the expert's report as evidence.
(2) The dispute resolution body may make an interim
determination.
200. Disclosure of information
(1) The dispute resolution body may give an oral or written
order to a person not to divulge or communicate to anyone
else specified information that was given to the person in
the course of an access dispute unless the person has the
dispute resolution body's permission.
(2) A person must not, without reasonable excuse, refuse or
fail to comply with an order under subsection (1).
Maximum penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
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201. Power to take evidence on oath or affirmation
(1) The dispute resolution body may take evidence on oath or
affirmation and for that purpose the dispute resolution body
may administer an oath or affirmation.
(2) The dispute resolution body may summon a person to
appear before the dispute resolution body to--
(a) give evidence; or
(b) produce such documents (if any) as are referred to
in the summons; or
(c) give evidence and produce such documents (if
any) as are referred to in the summons.
(3) The powers in this section may be exercised only for the
purposes of hearing and determining an access dispute.
202. Failing to attend as a witness
A person who is served, as prescribed by the Regulations,
with a summons to appear as a witness before the dispute
resolution body must not, without reasonable excuse--
(a) fail to attend as required by the summons; or
(b) fail to appear and report himself or herself from
day to day unless excused, or released from further
attendance, by the dispute resolution body.
Maximum penalty: $2 000.
203. Failing to answer questions etc
(1) A person appearing as a witness before the dispute
resolution body must not, without reasonable excuse--
(a) refuse or fail to be sworn or to make an
affirmation; or
(b) refuse or fail to answer a question that the person
is required to answer by the dispute resolution
body; or
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(c)refuse or fail to produce a document that he or she
is required to produce by a summons under this
Chapter served on him or her as prescribed by the
Regulations.
Maximum penalty: $2 000.
(2) It is a reasonable excuse for the purposes of subsection (1)
for a natural person to refuse or fail to answer a question or
produce a document on the ground that the answer or the
production of the document might--
(a) tend to incriminate the person; or
(b) expose the person to a criminal penalty.
(3) Subsection (2) does not limit what is a reasonable excuse
for the purposes of subsection (1).
204. Intimidation etc.
A person must not--
(a) threaten, intimidate or coerce another person; or
(b) cause or procure damage, loss or disadvantage to
another person,
because that other person--
(c) proposes to produce, or has produced, documents
to the dispute resolution body; or
(d)proposes to appear, or has appeared, as a witness
before the dispute resolution body.
Maximum penalty: $2 000.
205. Party may request dispute resolution body to treat material
as confidential
(1) A party in a dispute hearing may--
(a) inform the dispute resolution body that, in the
party's opinion, a specified part of a document
contains confidential information; and
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(b) request the dispute resolution body not to give a
copy of that part to another party.
(2) On receiving a request, the dispute resolution body must--
(a) inform the other party or parties that the request
has been made and of the general nature of the
matters to which the relevant part of the document
relates; and
(b) ask the other party or parties whether there is any
objection to the dispute resolution body complying
with the request.
(3) If there is an objection to the dispute resolution body
complying with the request, the party objecting may inform
the dispute resolution body of the objection and of the
reasons for it.
(4) After considering--
(a) a request; and
(b) any objection; and
(c) any further submissions that any party has made in
relation to the request,
the dispute resolution body may decide--
(d) not to give the other party or parties a copy of so
much of the document as contains confidential
information that the dispute resolution body thinks
should not be given; or
(e) to give the other party or another specified party a
copy of the whole, or part, of the part of the
document that contains confidential information
subject to a condition that the party give an
undertaking not to disclose the information to
another person except to the extent specified by
the dispute resolution body and subject to such
other conditions as the dispute resolution body
determines.
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206. Costs
(1) Each party is to bear its own costs in a dispute hearing
except to the extent that an order under this section
specifies otherwise.
(2) At any time, the dispute resolution body may order that a
party pay all or a specified part of the costs of another party
in a dispute hearing.
(3) The dispute resolution body may make an order under
subsection (2) only if satisfied that it is fair to do so, having
regard to--
(a) whether a party has conducted the dispute hearing
in a way that unnecessarily disadvantaged another
party by conduct such as--
(i) failing to comply with an order or
direction of the dispute resolution body
without reasonable excuse;
(ii) failing to comply with this Law, the
Regulations or the Rules;
(iii) asking for an adjournment as a result of
subparagraph (i) or (ii);
(iv) causing an adjournment;
(v) attempting to deceive another party or the
dispute resolution body;
(vi) vexatiously conducting an access dispute;
(b) whether a party has been responsible for
prolonging unreasonably the time taken to
complete the dispute hearing;
(c) the relative strengths of the claims made by each
of the parties, including whether a party has made
a claim that has no tenable basis in fact or law;
(d) the nature and complexity of the access dispute;
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(e) any other matter the dispute resolution body
considers relevant.
(4) A party to whom an order made under subsection (2) is
directed must comply with the order.
(5) If the dispute resolution body considers that the
representative of a party, rather than the party, is
responsible for conduct described in subsection (3)(a) or
(b), the dispute resolution body may order that the
representative in his or her own capacity compensate
another party for any costs incurred unnecessarily.
(6) Before making an order under subsection (5), the dispute
resolution body must give the representative a reasonable
opportunity to be heard.
(7) A representative of a party to whom an order made under
subsection (5) is directed must comply with the order.
(8) If the dispute resolution body makes an order for costs
before the end of an access dispute, the dispute resolution
body may require that the order be complied with before it
continues with the proceeding.
(9) If the dispute resolution body makes an order for costs, the
dispute resolution body may fix the amount of costs itself.
(10) This section applies to costs incurred by the parties in a
dispute hearing even if the notification of the access
dispute to which the dispute hearing relates is withdrawn.
207. Outstanding costs are a debt due to party awarded the costs
Costs that are payable under section 206(4) or (7)--
(a) are a debt due to the party to whom the dispute
resolution body has ordered that they be paid; and
(b) may be recovered by that party in a court of
competent jurisdiction.
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Part 7 -- Joint access dispute hearings
208. Definition
In this Part--
nominated disputes has the meaning given by
section 209(2).
209. Joint dispute hearing
(1) This section applies if--
(a) the dispute resolution body is conducting 2 or
more dispute hearings at a particular time; and
(b) 1 or more matters are common to the access
disputes in relation to which the dispute hearings
are being conducted.
(2) The dispute resolution body may, by notice in writing,
decide that it will hold a joint dispute hearing in respect of
such of those access disputes (the nominated disputes) as
are specified in the notice.
(3) The dispute resolution body may do so only if it considers
this would be likely to result in the nominated disputes
being resolved in a more efficient and timely manner.
210. Consulting the parties
(1) Before making a decision under section 209(2), the dispute
resolution body must give each party to each of the
nominated disputes a notice in writing--
(a) specifying what the dispute resolution body is
proposing to do; and
(b) inviting the party to make a written submission on
the proposal to the dispute resolution body within
10 business days after the notice is given.
(2) The dispute resolution body must have regard to any
submission so made in deciding whether to do so. The
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dispute resolution body may have regard to any other
matter it considers relevant.
211. Constitution and procedure of dispute resolution body for
joint dispute hearings
Chapter 6 Part 6 applies to the joint dispute hearing in a
corresponding way to the way in which it applies to a
particular dispute hearing.
212. Record of proceedings etc
(1) The dispute resolution body as constituted for the purposes
of the joint dispute hearing may have regard to any record
of the proceedings of the dispute of any of the nominated
disputes.
(2) The dispute resolution body as constituted for the purposes
of the dispute hearing of each of the nominated disputes
may, for the purposes of making an access determination in
relation to the access dispute to which that hearing
relates--
(a) have regard to any record of the proceedings of the
joint dispute hearing; and
(b) adopt any findings of fact made by the dispute
resolution body as constituted for the purposes of
the joint dispute hearing.
Part 8 -- Miscellaneous matters
213. Correction of access determinations for clerical mistakes
etc.
If an access determination contains--
(a) a clerical mistake; or
(b) an error arising from an accidental slip or
omission; or
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(c) a material miscalculation of figures or a material
mistake in the description of any person, thing or
matter referred to in the determination; or
(d) a defect in form,
the dispute resolution body may correct the access
determination.
214. Reservation of capacity during an access dispute
A service provider who is in an access dispute with a user
must not, without the consent of the user, alter the rights
that the user has to use the capacity of the access dispute
pipeline during the period of the dispute.
215. Subsequent service providers bound by access
determinations
(1) An access determination applies to every subsequent
service provider as if that subsequent service provider were
a party to the access dispute in respect of which the access
determination was made.
(2) In this section--
subsequent service provider means a service provider
(other than the service provider to whom the access
determination applies) who provides pipeline services--
(a) the subject of the access dispute; and
(b) in respect of which the access determination was
made.
216. Regulations about the costs to be paid by parties to access
dispute
The Regulations may provide for the dispute resolution
body to--
(a) charge the parties to an access dispute for its costs
in the access dispute; and
(b) apportion those costs between the parties.
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The Bulletin Board Operator Part 1
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Chapter 7 -- The Natural Gas Services Bulletin Board
Part 1 -- The Bulletin Board Operator
217. The Bulletin Board operator
The Bulletin Board operator is the person prescribed by the
Regulations as the Bulletin Board operator.
218. Obligation to establish and maintain the Natural Gas
Services Bulletin Board
(1) The Bulletin Board operator first prescribed under
section 217 must establish a website, to be known as the
Natural Gas Services Bulletin Board, containing
information of the kind specified in the Rules in relation to
natural gas services.
(2) The Bulletin Board operator must maintain the Natural Gas
Services Bulletin Board.
(3) The Bulletin Board operator may replace the website with
another website containing information of the kind
specified in the Rules in relation to natural gas services.
219. Other functions of the Bulletin Board operator
The Bulletin Board operator also has the following
functions:
(a) to collect and collate Bulletin Board information;
(b) to collect and collate other information in relation
to natural gas services for inclusion on the Natural
Gas Services Bulletin Board;
(c) to derive from information of the type mentioned
in paragraphs (a) and (b) information for inclusion
on the Natural Gas Services Bulletin Board;
(d) to publish information on the Natural Gas Services
Bulletin Board of the kinds that may or must be
included on the Natural Gas Services Bulletin
Board under the Rules;
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(e) to manage information of the type mentioned in
paragraphs (a), (b) and (c);
(f) such other functions as are conferred on the
Bulletin Board operator by this Law, the Rules or
any other law prescribed by the Regulations for
the purposes of this paragraph.
220. Powers of the Bulletin Board operator
The Bulletin Board operator has the power to do all things
necessary or convenient to be done for or in connection
with the performance of its functions.
221. Immunity of the Bulletin Board operator
(1) The Bulletin Board operator or an officer or employee of
the Bulletin Board operator does not incur any civil
monetary liability for an act or omission in the
performance or exercise, or purported performance or
exercise, of a function or power of the Bulletin Board
operator under this Law or the Rules unless the act or
omission is done or made in bad faith or through
negligence.
(2) The civil monetary liability for an act or omission of a kind
referred to in subsection (1) done or made through
negligence may not exceed the prescribed maximum
amount.
(3) The Regulations may, for the purposes of subsection (2),
without limitation do all or any of the following:
(a) prescribe a maximum amount that is limited in its
application to persons, events, circumstances,
losses or periods specified in the Regulations;
(b) prescribe maximum amounts that vary in their
application according to the persons to whom or
the events, circumstances, losses or periods to
which they are expressed to apply;
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(c) prescribe the manner in which a maximum amount
is to be divided amongst claimants.
(4) The Bulletin Board operator may enter into an agreement
with a person varying or excluding the operation of a
provision of this section and, to the extent of that
agreement, that provision does not apply.
(5) This section does not apply to any liability of an officer or
employee of a body corporate to the body corporate.
(6) In this section--
civil monetary liability means liability to pay damages or
compensation or any other amount ordered in a civil
proceeding, but does not include liability to pay a civil
penalty under this Law, an infringement penalty under
Chapter 8 Part 7 or the costs of a proceeding.
222. Fees for services provided
(1) The Bulletin Board operator may charge a fee specified, or
a fee calculated in accordance with a formula or
methodology specified, in the Rules for access by a person
to--
(a) the Natural Gas Services Bulletin Board; or
(b) Bulletin Board information.
(2) The fee must not be such as to amount to taxation.
Part 2 -- Bulletin Board information
223. Obligation to give information to the Bulletin Board
operator
(1) A person of the following kind who has possession or
control of information in relation to natural gas services
must give the Bulletin Board operator the information if
the person is required to do so under the Rules:
(a) a service provider;
(b) a gas market operator;
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(c) a user;
(d) a non scheme pipeline user;
(e) a producer;
(f) a storage provider;
(g) another person who is prescribed by the
Regulations for the purposes of this paragraph.
(2) The information must be given to the Bulletin Board
operator in accordance with the Rules.
(3) Subsection (1) does not apply if the person is exempt under
the Rules from giving the information.
224. Person cannot rely on duty of confidence to avoid
compliance with obligation
A person must not refuse to comply with the requirement
in section 223(1) on the ground of any duty of confidence.
225. Giving to Bulletin Board operator false and misleading
information
A person must not give Bulletin Board information to the
Bulletin Board operator that the person knows is false or
misleading in a material particular.
226. Immunity of persons giving information to the Bulletin
Board operator
(1) A person who gives Bulletin Board information to the
Bulletin Board operator does not incur any civil monetary
liability for an act or omission in giving that information
unless the act or omission is done or made in bad faith or
through negligence.
(2) The civil monetary liability for an act or omission of a kind
referred to in subsection (1) done or made through
negligence may not exceed the prescribed maximum
amount.
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(3) The Regulations may, for the purposes of subsection (2),
without limitation do all or any of the following:
(a) prescribe a maximum amount that is limited in its
application to persons, events, circumstances,
losses or periods specified in the Regulations;
(b) prescribe maximum amounts that vary in their
application according to the persons to whom or
the events, circumstances, losses or periods to
which they are expressed to apply;
(c) prescribe the manner in which a maximum amount
is to be divided amongst claimants.
(4) A person mentioned in subsection (1) may enter into an
agreement with another person varying or excluding the
operation of a provision of this section and, to the extent of
that agreement, that provision does not apply.
(5) In this section--
civil monetary liability means liability to pay damages or
compensation or any other amount ordered in a civil
proceeding, but does not include liability to pay a civil
penalty under this Law, an infringement penalty under
Chapter 8 Part 7 or the costs of a proceeding.
Part 3 -- Protection of information
227. Protection of information by the Bulletin Board operator
(1) The Bulletin Board operator must not copy, record, use or
disclose information that is Bulletin Board information,
except for the purposes of exercising powers or performing
functions as the Bulletin Board operator.
(2) If a person ceases to be the Bulletin Board operator, the
person must not afterwards copy, record, use or disclose
information that is Bulletin Board information and that was
disclosed to the person as the Bulletin Board operator.
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(3) Subsection (1) does not apply if--
(a) the Bulletin Board operator has the written consent
for the copying, recording, use or disclosure
from--
(i) the person who gave the information; or
(ii) the person from whom the person referred
to in subparagraph (i) received that
information; or
(b) the information is publicly available; or
(c) the information is required to be used or disclosed
because of the operation of a law of this
jurisdiction or another participating jurisdiction; or
(d) the information is also disclosed to the Bulletin
Board operator--
(i) for reasons other than compliance with
section 223(1); and
(ii) in circumstances other than those
expressly permitted by the Rules.
228. Protection of information by employees etc of the Bulletin
Board operator
(1) A person who is--
(a) an officer of the Bulletin Board operator; or
(b) an employee of the Bulletin Board operator; or
(c) a person performing work for or rendering
services to the Bulletin Board operator otherwise
than as an officer or employee,
must not copy, record, use or disclose information that is
Bulletin Board information, except in that person's
capacity as a person who is exercising powers or
performing functions, or assisting in the exercise of powers
or performance of functions, for the Bulletin Board
operator as the Bulletin Board operator.
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(2) If--
(a) information is Bulletin Board information; and
(b) the information is disclosed to a person in the
person's capacity as--
(i) an officer of the Bulletin Board operator;
or
(ii) an employee of the Bulletin Board
operator; or
(iii) a person performing work for or rendering
services to the Bulletin Board operator
otherwise than as an officer or employee,
exercising powers or performing functions, or
assisting in the exercise of powers or performance
of functions, for the Bulletin Board operator; and
(c) 1 of the following applies:
(i) in the case of an officer of the Bulletin
Board operator--the person ceases to be
an officer acting in that capacity;
(ii) in the case of an employee of the Bulletin
Board operator--the person ceases to be
an employee acting in that capacity;
(iii) in the case of a person performing work
for or rendering services to the Bulletin
Board operator otherwise than as an
officer or employee--the person ceases to
be a person of that kind acting in that
capacity,
the person must not afterwards copy, record, use
or disclose the information.
(3) Subsections (1) and (2) do not apply if--
(a) the person has the written consent for the copying,
recording, use or disclosure from--
(i) the person who gave the information; or
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(ii) the person from whom the person referred
to in subparagraph (i) received that
information; or
(b) the information is publicly available; or
(c) the information is required to be used or disclosed
because of the operation of a law of this
jurisdiction or another participating jurisdiction; or
(d) the information is also disclosed to the person--
(i) for reasons other than compliance with
section 223(1); and
(ii) in circumstances other than those
expressly permitted by the Rules.
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Chapter 8 -- Proceedings under the National Gas Law
Part 1 -- Proceedings generally
229. Instituting civil proceedings under this Law
(1) Proceedings may not be instituted in a court in respect of a
breach of a provision of this Law, the Regulations or Rules
that is not an offence provision by any person except as
provided for in this Chapter.
(2) The AER may, in accordance with Chapter 8 Part 2,
institute civil proceedings in respect of a breach of--
(a) a provision of this Law that is not an offence
provision (including a provision that is a civil
penalty provision or conduct provision); or
(b) a provision of the Regulations that is not an
offence provision (including a provision that is a
civil penalty provision or conduct provision); or
(c) a provision of the Rules (including a provision that
is a civil penalty provision or a conduct provision).
(3) A person other than the AER may, in accordance with
Chapter 8 Part 2, institute civil proceedings in respect of a
breach of a conduct provision.
230. Time limit within which proceedings may be instituted
(1) The AER may only institute a proceeding for a breach, by a
person, of a provision of this Law, the Regulations or the
Rules that is not an offence provision within 6 years after
the date on which the breach occurred.
(2) A person, other than the AER, may only institute a
proceeding for a breach of a conduct provision by another
person within 6 years after the date on which the breach
occurred.
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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
(1) The Court may make an order, on application by the AER
on behalf of the Commonwealth, declaring that a person is
in breach of a provision of this Law, the Regulations or the
Rules that is not an offence provision.
Note--
A Supreme Court of a participating jurisdiction that is a
State may hear an application by the AER under
subsection (1) by operation of section 39(2) of the
Judiciary Act 1903 of the Commonwealth.
(1A) When subsection (1) is read as if a reference in it to the
AER were a reference to the ERA, the subsection is to be
read as if "on behalf of the Commonwealth" had been
deleted.
(2) If the order declares a person to be in breach of a provision
of this Law the Regulations or the Rules that is not an
offence provision, the order may include 1 or more of the
following:
(a) an order that the person pay a civil penalty
determined in accordance with this Law, the
Regulations and the Rules if the breach is a breach
of a civil penalty provision;
(b) an order that the person cease, within a specified
period, the act, activity or practice constituting the
breach;
(c) an order that the person take such action, or adopt
such practice, as the Court requires for remedying
the breach or preventing a recurrence of the
breach;
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(d) an order that the person implement a specified
program for compliance with this Law, the
Regulations and the Rules;
(e) an order of a kind prescribed by the Regulations.
(3) If a person has engaged, is engaging or is proposing to
engage in any conduct in breach of a provision of this Law,
the Regulations or the Rules that is not an offence
provision, the Court may, on application by the AER on
behalf of the Commonwealth, grant an injunction--
(a) restraining the person from engaging in the
conduct; and
(b) if, in the Court's opinion, it is desirable to do so--
requiring the person to do something.
(3A) When subsection (3) is read as if a reference in it to the
AER were a reference to the ERA, the subsection is to be
read as if "on behalf of the Commonwealth" had been
deleted.
(4) The power of the Court under subsection (3) to grant an
injunction restraining a person from engaging in conduct of
a particular kind may be exercised--
(a) if the Court is satisfied that the person has engaged
in conduct of that kind--whether or not it appears
to the Court that the person intends to engage
again, or to continue to engage, in conduct of that
kind; or
(b) if it appears to the Court that, if an injunction is
not granted, it is likely that the person will engage
in conduct of that kind--whether or not the person
has previously engaged in conduct of that kind and
whether or not there is an imminent danger of
substantial damage to any person if the person
engages in conduct of that kind.
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232. Proceedings for declaration that a person is in breach of a
conduct provision
(1) The Court may make an order, on application by a person
other than the AER, declaring that another person is in
breach of a conduct provision.
(2) If the order declares a person to be in breach of a conduct
provision, the order may include 1 or more of the
following:
(a) an order that the person in breach cease, within a
specified period, the act, activity or practice
constituting the breach;
(b) an order that the person in breach take such action,
or adopt such practice, as the Court requires for
remedying the breach or preventing a recurrence
of the breach;
(c) an order that the person in breach implement a
specified program for compliance with this Law,
the Regulations and the Rules;
(d) an order of a kind prescribed by the Regulations.
(3) If a person has engaged, is engaging or is proposing to
engage in any conduct in breach of a conduct provision, the
Court may, on application by another person (other than
the AER), grant an injunction--
(a) restraining the first mentioned person from
engaging in the conduct; and
(b) if, in the Court's opinion, it is desirable to do so--
requiring the first mentioned person to do
something.
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(4) The power of the Court under subsection (3) to grant an
injunction restraining a person from engaging in conduct of
a particular kind may be exercised--
(a) if the Court is satisfied that the person has engaged
in conduct of that kind--whether or not it appears
to the Court that the person intends to engage
again, or to continue to engage, in conduct of that
kind; or
(b) if it appears to the Court that, if an injunction is
not granted, it is likely that the person will engage
in conduct of that kind--whether or not the person
has previously engaged in conduct of that kind and
whether or not there is an imminent danger of
substantial damage to any person if the person in
conduct of that kind.
233. Actions for damages by persons for breach of conduct
provision
A person other than the AER who suffers loss or damage
by conduct of another person that was done in breach of a
conduct provision may recover the amount of the loss or
damage by action against that other person in a court of
competent jurisdiction.
Part 3 -- Matters relating to breaches of this Law, the
Regulations or the Rules
234. Matters for which there must be regard in determining
amount of civil penalty
Every civil penalty ordered to be paid by a person declared
to be in breach of a provision of this Law, the Regulations
or the Rules must be determined having regard to all
relevant matters, including--
(a) the nature and extent of the breach; and
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(b) the nature and extent of any loss or damage
suffered as a result of the breach; and
(c) the circumstances in which the breach took place;
and
(d) whether the person has engaged in any similar
conduct and been found to be in breach of a
provision of this Law, the Regulations or the Rules
in respect of that conduct; and
(e) whether the service provider had in place a
compliance program approved by the AER or
required under the Rules, and if so, whether the
service provider has been complying with that
program.
235. Breach of a civil penalty provision is not an offence
A breach of a civil penalty provision is not an offence.
236. Breaches of civil penalty provisions involving continuing
failure
For the purpose of determining the civil penalty for a
breach of a civil penalty provision, if the breach consists of
a failure to do something that is required to be done, the
breach is to be regarded as continuing until the act is done
despite the fact that any period within which, or time
before which, the act is required to be done has expired or
passed.
237. Conduct in breach of more than 1 civil penalty provision
(1) If the conduct of a person constitutes a breach of 2 or more
civil penalty provisions, proceedings may be instituted
under this Law against the person in relation to the breach
of any 1 or more of those provisions.
(2) However, the person is not liable to more than 1 civil
penalty under this Law in respect of the same conduct.
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Note--
Clause 49 of Schedule 2 to this Law sets out further provisions in
relation to double jeopardy.
238. Persons involved in breach of civil penalty provision or
conduct provision
(1) A person must not--
(a) aid, abet, counsel or procure a breach of a civil
penalty provision or conduct provision by another
person; or
(b) be in any way directly or indirectly knowingly
concerned in, or party to, a breach of a civil
penalty provision or conduct provision by another
person.
(2) This Law applies to a person who breaches subsection (1)
in relation to a civil penalty provision or conduct provision
as if the person were a person who has breached the civil
penalty provision or conduct provision.
239. Attempt to breach a civil penalty provision
A person who attempts to commit a breach of a civil
penalty provision commits a breach of that provision.
240. Civil penalties payable to the Commonwealth
If a person is ordered to pay a civil penalty, the penalty is
payable to the State of Western Australia except