New South Wales Consolidated Acts

NATIONAL GAS (NSW) LAW - SECT 329

329 Disclosure of information authorised if detriment does not outweigh public benefit

(1) Despite sections 325 to 328B (inclusive), the AER is authorised to disclose information given to it in confidence, in compliance with this Law or the Rules or voluntarily, after the restricted period if the AER is of the opinion--

(a) that the disclosure of the information would not cause detriment to the person who has given it or to the person from whom that person received it; or

(b) that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment.

(1a) However--

(a) in the case of information given to the AER in order to comply with a regulatory information instrument--the AER must not disclose information under subsection (1) unless and until--

(i) the AER has considered any reasons and information given to the AER under section 57A(1)(b) and (2) when determining whether or not it is of the opinion required by subsection (1); and

(ii) the AER has complied with subsections (1b), (1c) and (1d); and

(iii) the restricted period has expired; and

(b) in the case of other information--the AER must not disclose information under subsection (1) unless and until--

(i) the AER has complied with subsections (2) to (6) (inclusive); and

(ii) the restricted period has expired.

(1b) If the AER wishes to disclose information to which subsection (1a)(a) applies (after taking into account the requirements of subsections (1) and (1a)(a)) and--

(a) the AER intends to disclose the information on the basis of the AER having formed the opinion required by subsection (1)(a), the AER must give the person who gave the information and, if the AER is aware that the person who gave the information in turn received the information from another person and is aware of that other person's identity and address, that other person--

(i) a written notice stating--

(A) that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

(B) that the AER is of the opinion required by subsection (1)(a); and

(ii) the AER's decision, in writing, setting out the reasons why the AER--

(A) wishes to make the disclosure; and

(B) is of the opinion required by subsection (1)(a); or

(b) the AER intends to disclose the information on the basis of the AER having formed the opinion required by subsection (1)(b), the AER must give the person who gave the information and, if the AER is aware that the person who gave the information in turn received the information from another person and is aware of that other person's identity and address, that other person--

(i) a written notice stating--

(A) that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

(B) that the AER is of the opinion required by subsection (1)(b); and

(C) that the person, within the period specified in the notice (which must not be less than 5 business days after the date the notice is given to the person), may make representations to the AER solely in relation to the AER's reasons for deciding that the public benefit in disclosing the information outweighs any detriment that may be caused to the person by the disclosure; and

(ii) the AER's decision, in writing, setting out the reasons why the AER--

(A) wishes to make the disclosure; and

(B) is of the opinion required by subsection (1)(b).

(1c) The AER must consider any representation that complies with the requirements of subsection (1b)(b)(i)(C) made to it by a person given a notice under subsection (1b)(b)(i) within the time specified in the notice.

(1d) If, after considering any representation under subsection (1c), the AER wishes to disclose the information, the AER must give each person given a notice under subsection (1b)(b)(i)--

(a) a written notice stating--

(i) that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

(ii) that the AER is of the opinion required by subsection (1)(b); and

(b) the AER's decision, in writing, setting out the reasons why the AER--

(i) wishes to make the disclosure; and

(ii) is of the opinion required by subsection (1)(b).

(1e) To avoid doubt, a person entitled to make representations under subsection (1b)(b)(i) is not entitled to make representations under that subsection in relation to the AER's assessment of the detriment that may be caused to the person by the intended disclosure of the information.

(2) Before disclosing information to which subsection (1a)(b) applies, the AER must give the person who gave the information--

(a) a written notice (an
"initial disclosure notice" ) stating--

(i) that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

(ii) that the AER is of the opinion required by subsection (1); and

(iii) that the person, within the period specified in the notice, may make representations to the AER not to disclose the information; and

(b) the AER's decision, in writing, setting out the reasons why the AER--

(i) wishes to make the disclosure; and

(ii) is of the opinion required by subsection (1).

(3) If the AER is aware that the person who gave information to which subsection (1a)(b) applies in turn received the information from another person and is aware of that other person's identity and address, the AER must, before disclosing the information give that other person--

(a) a written notice (an
"initial disclosure notice" ) stating--

(i) that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

(ii) that the AER is of the opinion required by subsection (1); and

(iii) that the person, within the period specified in the notice, may make representations to the AER not to disclose the information; and

(b) the AER's decision, in writing, setting out the reasons why the AER--

(i) wishes to make the disclosure; and

(ii) is of the opinion required by subsection (1).

(4) The AER must consider every representation made to it by a person given an initial disclosure notice under this section within the time specified in the notice.

(5) The period of time specified in an initial disclosure notice must not be less than 5 business days after the date the initial disclosure notice is given to the person.

(6) If after considering any representation under subsection (4), the AER wishes to disclose the information, the AER must give the person given the initial disclosure notice--

(a) a written notice (a
"further disclosure notice" ) stating--

(i) that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and

(ii) that the AER is of the opinion required by subsection (1); and

(b) the AER's decision, in writing, setting out the reasons why the AER--

(i) wishes to make the disclosure; and

(ii) is of the opinion required by subsection (1).

(7) For the purposes of this section, the disclosure of anything that is already in the public domain at the time the AER wishes to disclose it cannot cause detriment to any person referred to in subsection (1b), (2) or (3).

(7a) Despite anything to the contrary in this Law, this section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to--

(a) the AER's decision under subsection (1) to disclose information given in confidence to the AER including, but not limited to, such information given to the AER in compliance with a regulatory information instrument and in relation to which a claim of confidentiality has been made in accordance with section 57A; and

(b) without limiting paragraph (a), if the AER's decision under subsection (1) is to disclose the confidential information, the AER's opinion--

(i) that the disclosure of the information would not cause detriment to the person who gave the information or, if the person who gave the information in turn received the information from another person, that other person (as the case may be); or

(ii) that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment.

(8) In this section--

"restricted period" means--

(a) in the case of information given to the AER in order to comply with a regulatory information instrument--a period of 5 business days after--

(i) a notice has been given under subsection (1b)(a)(i); or

(ii) --

(A) a notice has been given under subsection (1b)(b)(i); or

(B) a notice has been given under subsection (1d)(a),

whichever is the later; or

(b) in the case of other information--a period of 5 business days after--

(i) an initial disclosure notice has been given under this section; or

(ii) a further disclosure notice has been given under this section,

whichever is the later.