Western Australian Current Acts Western Australian Current Acts[s. 7(2)]
(1) This Schedule
makes the modifications to the underlying National Gas Law that, together with
modifications giving effect to section 7A(3) and (4), result in the text that
section 7(1) applies as the National Gas Access (Western Australia) Law.
(2) In subclause (1)
—
underlying National Gas Law means the National Gas
Law, as set out in the South Australian Act Schedule for the time being in
force.
2 . Section 1 modified
In section 1 after
“National Gas” insert —
Access
3 . Section 2 modified
(1) In section 2
delete the definitions of dispute resolution body , initial National Gas Rules
, old access law and Regulations .
(2) In section 2
insert in alphabetical order:
dispute resolution body has the meaning given to
that term in section 9(1) of the National Gas Access (WA) Act 2009 ;
initial National Gas Rules means —
(a) the
National Gas Rules that, when the National Gas Access (WA) Act 2009
section 30 came into operation, applied under section 294; and
(b) the
National Gas Access (Pipelines-Arbitration Amendment) Rules 2017 made by the
Minister for Mineral Resources and Energy of South Australia under the
National Gas (South Australia) Law section 294F (notice of which was published
in the Government Gazette of South Australia on 1 August 2017 at p. 2994); and
(c) the
National Gas (Binding Rate of Return Instrument) Amendment Rule 2019 made by
the Minister for Energy and Mining of South Australia under the National Gas
(South Australia) Law section 294CA (notice of which was published in the
Government Gazette of South Australia on 7 February 2019 at p. 404);
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 30 of the National Gas Access (WA) Act
2009 ;
Regulations means the regulations made under Part
3 of the National Gas Access (WA) Act 2009 that apply as a law of this
jurisdiction;
regulator has the meaning given to that term in
section 9(1) of the National Gas Access (WA) Act 2009 ;
WA arbitrator has the meaning given to that term
in section 9(1) of the National Gas Access (WA) Act 2009 .
(3) In section 2 in
the definition of AER after “Commonwealth” insert:
except if section 2A requires the term to be given
a different meaning
(4) In section 2 in
the definition of Gas Code delete “in force from time to time before the
commencement of section 20 of the National Gas (South Australia) Act 2008 of
South Australia;” and insert:
amended and applying from time to time before the
commencement of section 30 of the National Gas Access (WA) Act 2009 as a law
of Western Australia;
[(5) deleted]
[Clause 3 amended: Gazette 22 Dec 2017 p. 5985; 5
Apr 2019 p. 1009.]
4 . Sections 2A and 2B inserted
After section 2
insert:
(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 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.
2B. References to WA application Act
In this Law, a
reference to the National Gas Access (Western Australia) Act 2008 , if any, is
to be read as a reference to the National Gas Access (WA) Act 2009 .
5 . Chapter 1 Part 1A inserted
After Chapter 1 Part 1
insert:
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.
In section 23A delete
“Without limiting Part 3 of the National Gas (South Australia) Act 2008
of South Australia,” and insert:
Without limiting the
National Gas Access (WA) Act 2009 Part 3,
[Clause 5A inserted: SL 2024/5 r. 4.]
6 . Section 29 modified
In section 29 after
“Commonwealth” insert:
or by the ERA under
section 29 of the Economic Regulation Authority Act 2003
7 . Section 30 modified
(1) In section 30
delete “Section 44AAF” and insert:
(1) Section 44AAF
(2) At the end of
section 30 insert:
(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)
delete subsection (3)(c) of the adopted section and insert:
(c) the
Australian Energy Regulator established by section 44AE of the
Trade Practices Act 1974 of the Commonwealth;
(b)
delete subsection (6)(a)(i) of the adopted section and insert:
(i)
an ERA member, a person assisting the ERA in the
performance of its functions or a delegate of the ERA;
Delete section 30R.
[Clause 7A inserted: Gazette 5 Apr 2019 p. 1010.]
7B . Section 42 modified
(1) After
section 42(2) insert:
(2A) When subsection
(2)(c) 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 “a member of the staff assisting the
AER who is an SES employee or an acting SES employee and” had been
deleted and the following had been inserted instead:
a staff member as
defined in the Economic Regulation Authority Act 2003 section 3
(2) After
section 42(11) insert:
(11A) When subsection
(11) 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.
[Clause 7B inserted: SL 2024/186 r. 4.]
8 . Chapter 2 Part 1A inserted
After Chapter 2 Part 1
insert:
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
(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.
After section 181
insert:
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
(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.
(1) After section
231(1) insert:
(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) After section
231(3) insert:
(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.
In section 240 delete
“Commonwealth.” and insert:
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 Commonwealth.
In section 290 in the
definition of publish paragraph (a) delete “section 294 or 315”
and insert:
section 315
Delete section 294 and
insert:
294 . Initial National Gas Rules for WA
(1) The National Gas
Rules that apply upon section 30 of the National Gas Access (WA) Act 2009
coming into operation are as set out in the document called the National Gas
Rules 2008 , signed on 1 July 2008 by the Minister for Energy of South
Australia, as affected, if applicable, by any amendments made by the AEMC
under national gas legislation before the coming into operation of that
section.
(2) Subsection (1)
does not prevent the AEMC from making Rules under this Chapter that amend or
revoke the rules referred to in it.
[Clause 13 amended: Gazette 22 Dec 2017 p. 5986.]
(1) In section
294FC(1):
(a)
delete “this section—” and insert:
the National Gas (South Australia) Law (South
Australia) section 294FC —
(b) in
paragraph (c) delete “of the enactment of the Statutes Amendment
(National Energy Laws) (Emissions Reduction Objectives) Act 2023 of South
Australia.” and insert:
of —
(i) the enactment of the Statutes Amendment
(National Energy Laws) (Emissions Reduction Objectives) Act 2023 (South
Australia); or
(ii) the amendment of this Law by virtue of the
National Gas Access (WA) Adoption of Amendments Order (No. 2) 2024 clause 3
(the adopting clause ).
(2) In section
294FC(8) insert in alphabetical order:
South Australian Minister means the Minister in
right of the Crown of South Australia administering the
National Gas (South Australia) Act 2008 (South Australia) Part 2.
(3) In section
294FC(8) in the definition of amended objective delete “commencement of
this section.” and insert:
coming into operation of the adopting clause;
[Clause 13A inserted: SL 2024/5 r. 5.]
In Schedule 1 item 82
delete “ section 20 of the National Gas (South Australia) Act 2008 of
South Australia.” and insert:
section 30 of the
National Gas Access (WA) Act 2009 of Western Australia.
15 . Schedule 2 clause 27A inserted
After Schedule 2
clause 27 insert:
27A. WA modifications of clause 27
Clause 27 applies to a
conferral of power by this Law to the extent that the power derives from an
amendment to the Schedule to the National Gas (South Australia) Act 2008 of
South Australia —
(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
(WA) Act 2009 , is affected by the amendment; and
(b) as
if the reference in clause 27(3) to additional power that would be conferred
had an Act of South 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.
16 . Schedule 2 clause 34 modified
(1) In Schedule 2
clause 34 delete “In any proceedings” and insert:
(1) In any proceedings
(2) At the end of
Schedule 2 clause 34 insert:
(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 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
16A . Schedule 2 clause 47A modified
In Schedule 2 clause
47A(2) delete “1 July 2023.” and insert:
the day on which the
National Gas Access (WA) Adoption of Amendments Order 2024 clause 3 comes into
operation.
[Clause 16A inserted: SL 2024/186 r. 5.]
16B . Schedule 2 clause 47B modified
In Schedule 2 clause
47B(2) delete “1 July 2023.” and insert:
the day on which the
National Gas Access (WA) Adoption of Amendments Order 2024 clause 3 comes into
operation.
[Clause 16B inserted: SL 2024/186 r. 5.]
17 . Schedule 2 clause 50 replaced
Delete Schedule 2
clause 50 and insert:
Section 555A(1) and
(2) of The Criminal Code apply in relation to a simple offence under this Law
as if it were a simple offence under The Criminal Code .
17A . Schedule 2 clause 51 modified
In Schedule 2 clause
51(3) delete the definition of statutory instrument and insert:
statutory instrument includes the Regulations, the
rate of return instrument or the Rules.
[Clause 17A inserted: Gazette 5 Apr 2019 p. 1010.]
(1) In Schedule 3
clause 1 in the definition of commencement day delete “ section 20 of
the new application Act” and insert:
section 30 of the
National Gas Access (WA) Act 2009
(2) In Schedule 3
clause 45(3)(b) delete “ Gas Pipelines Access (South Australia)
Regulations 1999 were not revoked . ” and insert:
Gas Pipelines Access (Western Australia) Regulations 2000 were not repealed.
(2A) In Schedule 3
clause 90:
(a)
delete “section 26 of the Statutes Amendment (National Energy Laws)
(Rules) Act 2018 ” and insert:
virtue of the National
Gas Access (WA) Adoption of Amendments Order 2020 clause 3 (the adopting
clause )
(b) in
paragraph (a) delete “commencement of this clause; or” and insert:
coming into operation
of the adopting clause; or
(c) in
paragraph (b) delete “commencement of this clause,” and insert:
coming into operation
of the adopting clause,
(3) In Schedule 3
clause 95 insert in alphabetical order:
commencement means the coming into operation of
the National Gas Access (WA) Adoption of Amendments Order 2019 clause 3;
(4) In Schedule 3
clause 96(1)(a) delete “commencement of this clause;” and insert:
commencement;
(5) In Schedule 3
clause 97(1) delete “commencement of this clause—” and
insert:
commencement—
(6) In Schedule 3
clause 98(3) delete the definitions of amended Law and commencement and
insert:
amended Law means this Law as amended and modified
by virtue of the National Gas Access (WA) Adoption of Amendments Order 2019
and the National Gas Access (WA) (Act Amendment) Regulations 2019 .
(6A) In Schedule 3
clause 99 delete the definition of Amendment Act .
(6B) In Schedule 3
clause 99 insert in alphabetical order:
adopting clause means the National Gas Access (WA)
Adoption of Amendments Order 2025 clause 3;
(6C) In Schedule 3
clause 99 in the definition of commencement day delete “section 33 of
the Amendment Act” and insert:
the adopting clause
(6D) In Schedule 3
clause 100(1) delete “section 33 of the Amendment Act).” and
insert:
virtue of the adopting
clause).
(6E) In Schedule 3
clause 101(1) delete “section 33 of the Amendment Act” and insert:
virtue of the adopting
clause
(6F) In Schedule 3
clause 102:
(a) in
subclause (1) delete “section 33 of the Amendment Act” and insert:
virtue of the adopting
clause
(b) in
subclause (2) delete “section 33 of the Amendment Act).” and
insert:
virtue of the adopting
clause).
(6G) In Schedule 3
clause 103 delete “section 33 of the Amendment Act” and insert:
virtue of the adopting
clause
(7) In Schedule 3
clause 133 delete the definition of amending Act .
(8) In Schedule 3
clause 133 insert in alphabetical order:
adopting clause means the National Gas Access (WA)
Adoption of Amendments Order (No. 2) 2024 clause 3;
(9) In Schedule 3
clause 133 in the definition of amended objective delete “commencement
of this clause;” and insert:
coming into operation of the adopting clause;
(10) In Schedule 3
clause 134:
(a) in
subclause (2) delete “Despite section 14 of the amending
Act—” and insert:
Despite the coming into operation of the adopting
clause —
(b) in
subclause (2)(a) delete “that section” and insert:
the adopting clause
(c) in
subclause (2)(a) delete “commencement of this clause; and” and
insert:
coming into operation of the adopting clause; and
(d) in
subclause (3)(a) delete “commencement of this clause” and insert:
coming into operation of the adopting clause
(11) In Schedule 3
clause 135(2) delete “commencement of this clause,” and insert:
coming into operation of the adopting clause,
(12) In Schedule 3
clause 136(1) and (2) delete “commencement of this clause,” and
insert:
coming into operation of the adopting clause,
(13) In Schedule 3
clause 138(1) and (2) delete “commencement of this clause—”
and insert:
coming into operation of the adopting clause
—
[Clause 18 amended: Gazette 5 Apr 2019 p. 1010; SL
2020/194 r. 4; SL 2024/5 r. 6; SL 2025/19 r. 4.]
Notes about National Gas Access (WA) Act 2009
This is a compilation of the National Gas Access (WA) Act 2009 and includes
amendments made by other written laws. For provisions that have come into
operation see the compilation table.
|
Short title |
Number and year |
Assent |
Commencement |
|---|---|---|---|
|
16 of 2009 |
1 Sep 2009 |
s. 1 and 2: 1 Sep 2009 (see s. 2(a)); | |
|
Petroleum and Energy Legislation Amendment Act 2010 s. 184 |
42 of 2010 |
28 Oct 2010 |
25 May 2011 (see s. 2(b) Gazette 24 May 2011 p. 1892) |
|
National Gas Access (WA) (Act Amendment) Regulations 2017 published in Gazette
22 Dec 2017 p. 5985-6 |
r. 1 and 2: 22 Dec 2017 (see r. 2(a)); | ||
|
National Gas Access (WA) (Act Amendment) Regulations 2019 published in Gazette
5 Apr 2019 p. 1009-10 |
r. 1 and 2: 5 Apr 2019 (see r. 2(a)); | ||
|
National Gas Access (WA) (Act Amendment) Regulations 2020 (SL 2020/194) |
r. 1 and 2: 9 Oct 2020 (see r. 2(a)); | ||
|
National Gas Access (WA) (Act Amendment) Regulations (No. 2) 2024 ( SL 2024/5)
|
r. 1 and 2: 24 Jan 2024 (see r. 2(a)); | ||
|
National Gas Access (WA) (Act Amendment) Regulations 2024 (SL 2024/186) |
r. 1 and 2: 4 Sep 2024 (see r. 2(a)); | ||
|
National Gas Access (WA) (Act Amendment) Regulations 2025 (SL 2025/19) |
r. 1 and 2: 22 Jan 2025 (see r. 2(a)); | ||
Note — Western Australian National Gas Access Law text
[This note is not part
of the Act. It shows the text that, under section 7(1), applies as the
National Gas Access (Western Australia) Law.]
This law may be cited as the National Gas Access Law.
[Section 1 modified: WA Act Sch. 1 cl. 2.]
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 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 (other than making a rate
of return instrument) 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 (other than making a rate of return
instrument) 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);
Note—
The application of a rate of return instrument under this Law is an AER
economic regulatory function or power. See section 30Q(2).
AER ring fencing determination means a determination of the AER under section
143(1);
annual turnover has the same meaning as in section 2(1) of Schedule 2 to the
Competition and Consumer Act 2010 of the Commonwealth;
applicable access arrangement means a limited access arrangement or full
access arrangement that has taken effect after being approved or made by the
AER under the Rules and includes an applicable access arrangement as
varied—
(a)
under the Rules; or
(b) by
an access determination as provided by this Law or the Rules;
applicable access arrangement decision means—
(a) a
full access arrangement decision; or
(b) a
limited access arrangement decision;
approved associate contract means an associate contract approved by the AER
under an associate contract decision;
associate in relation to a person has the same meaning it would have under
Division 2 of Part 1.2 of the Corporations Act 2001 of the Commonwealth if
sections 13, 16(2) and 17 did not form part of that Act;
associate contract means—
(a) a
contract, arrangement or understanding between a service provider and an
associate of the service provider in connection with the provision of an
associate pipeline service; or
(b) a
contract, arrangement or understanding between a service provider and any
person in connection with the provision of an associate pipeline
service—
(i)
that provides a direct or indirect benefit to an
associate; and
(ii)
that is not at arm’s length;
associate contract decision means a decision of the AER under the Rules that
approves or does not approve an associate contract for the purposes of Chapter
4 Part 2 Division 5;
associate pipeline service means a pipeline service provided by means of a
pipeline other than a pipeline to which a 15-year no coverage determination
applies;
Bulletin Board information means information that—
(a) a
person gives to the Bulletin Board operator to comply with section 223(1); or
(b) a
person gives to the Bulletin Board operator in circumstances expressly
permitted by the Rules;
Bulletin Board operator means the person prescribed by the Regulations for the
purposes of section 217;
charge , in relation to a pipeline service, means the amount that is payable
by a user to a service provider for the provision of the pipeline service to
that user;
civil penalty —see section 3A;
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
(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;
constituent components , in relation to a designated regulatory decision,
means the matters that constitute the elements or components of the designated
regulatory decision and on which that designated regulatory decision is based
and includes —
(a)
matters that go to the making of the designated regulatory decision; and
(b)
decisions made by the AER for the purposes of the designated regulatory
decision;
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;
designated pipeline means a pipeline classified by the Regulations, or
designated in the application Act of a participating jurisdiction, as 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.
designated regulatory decision means an applicable access arrangement decision
(other than a full access arrangement decision that does not approve a full
access arrangement), or a decision prescribed by the Regulations to be a
designated regulatory decision;
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 (WA) Act 2009 ;
distribution pipeline means a pipeline that is classified in accordance with
this Law or the Rules as a distribution pipeline and includes any extension
to, or expansion of the capacity of, such a pipeline when it is a covered
pipeline that, by operation of an applicable access arrangement or under this
Law, is to be treated as part of the pipeline;
Note—
See also sections 18 and 19.
draft Rule determination means a determination of the AEMC under section 308;
end user means a person who acquires natural gas or proposes to acquire
natural gas for consumption purposes;
ERA means the Economic Regulation Authority established by section 4 of the
Economic Regulation Authority Act 2003 of Western Australia;
extension and expansion requirements means—
(a) the
requirements contained in an access arrangement that, in accordance with the
Rules, specify—
(i)
the circumstances when an extension to, or expansion of
the capacity of, a covered pipeline is to be treated as forming part of the
covered pipeline; and
(ii)
whether the pipeline services provided or to be provided
by means of, or in connection with, spare capacity arising out of an extension
to, or expansion of the capacity of, a covered pipeline will be subject to the
applicable access arrangement applying to the pipeline services to which that
arrangement applies; and
(iii)
whether an extension to, or expansion of the capacity of,
a covered pipeline will affect a reference tariff, and if so, the effect on
the reference tariff; and
(b) any
other requirements specified by the Rules as extension and expansion
requirements;
Note—
See also sections 18 and 19.
final Rule determination means a determination of the AEMC under section 311;
foreign company has the same meaning as in the Corporations Act 2001 of the
Commonwealth;
foreign source means—
(a) a
source beyond the outer limits of all of the following:
(i)
the adjacent area of this jurisdiction;
(ii)
the adjacent area of another participating jurisdiction;
or
(b) a
source within the joint petroleum development area (within the meaning of the
Petroleum (Timor Sea Treaty) Act 2003 of the Commonwealth);
form of regulation factors has the meaning given by section 16;
full access arrangement means an access arrangement that—
(a)
provides for price or revenue regulation as required by the Rules; and
(b)
deals with all other matters for which the Rules require provision to be made
in an access arrangement;
full access arrangement decision means a decision of the AER under the Rules
that—
(a)
approves or does not approve a full access arrangement or revisions to an
applicable access arrangement submitted to the AER under section 132 or the
Rules; or
(b)
makes a full access arrangement—
(i)
in place of a full access arrangement the AER does not
approve in that decision; or
(ii)
because a service provider does not submit a full access
arrangement in accordance with section 132 or the Rules;
(c)
makes revisions to an access arrangement—
(i)
in place of revisions submitted to the AER under section
132 that the AER does not approve in that decision; or
(ii)
because a service provider does not submit revisions to
the AER under section 132;
Gas Code means the National Third Party Access Code for Natural Gas Pipeline
Systems set out in Schedule 2 to the Gas Pipelines Access (South Australia)
Act 1997 of South Australia as amended and applying from time to time before
the commencement of section 30 of the National Gas Access (WA) Act 2009 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 —
(a) the
National Gas Rules that, when the National Gas Access (WA) Act 2009
section 30 came into operation, applied under section 294; and
(b) the
National Gas Access (Pipelines-Arbitration Amendment) Rules 2017 made by the
Minister for Mineral Resources and Energy of South Australia under the
National Gas (South Australia) Law section 294F (notice of which was published
in the Government Gazette of South Australia on 1 August 2017 at p. 2994); and
(c) the
National Gas (Binding Rate of Return Instrument) Amendment Rule 2019 made by
the Minister for Energy and Mining of South Australia under the National Gas
(South Australia) Law section 294CA (notice of which was published in the
Government Gazette of South Australia on 7 February 2019 at p. 404);
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;
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;
listed corporation has the meaning given by section 9 of the
Corporations Act 2001 of the Commonwealth;
MCE means the group of Ministers (constituting or forming part of a
Ministerial Council, Standing Council of Ministers or similar body (however
described)) responsible for energy matters at a national level comprising 9
Ministers as follows:
(a) 1
Minister from the Commonwealth;
(b) 1
Minister from each State (totalling 6 Ministers);
(c) 1
Minister from each Territory (totalling 2 Ministers),
acting in accordance with its own procedures;
MCE directed review means a review conducted by the AEMC under Chapter 2 Part
2 Division 4;
MCE statement of policy principles means a statement of policy principles
issued by the MCE under section 25;
minimum ring fencing requirement means a requirement under Chapter 4 Part 2
Division 2;
Minister of a participating jurisdiction means a Minister who is a Minister of
a participating jurisdiction within the meaning of section 22;
Ministerial coverage decision means—
(a) a
decision of a relevant Minister under section 99, 106 or 156; or
(b) a
decision of the Commonwealth Minister under section 164;
national gas legislation means—
(a) the
National Gas (South Australia) Act 2008 of South Australia and Regulations in
force under that Act; and
(b) the
National Gas (South Australia) Law ; and
(c) the
National Gas Access (Western Australia) Act 2008 of Western Australia; and
(d) the
National Gas Access (Western Australia) Law within the meaning given in the
National Gas Access (Western Australia) Act 2008 of Western Australia; and
(e)
Regulations made under the National Gas Access (Western Australia) Act 2008 of
Western Australia for the purposes of the National Gas Access (Western
Australia) Law; and
(f) an
Act of a participating jurisdiction (other than South Australia or Western
Australia) that applies, as a law of that jurisdiction, any part of—
(i)
the Regulations referred to in paragraph (a); or
(ii)
the National Gas Law set out in the Schedule to the
National Gas (South Australia) Act 2008 of South Australia; and
(g) the
National Gas Law set out in the Schedule to the National Gas (South
Australia) Act 2008 of South Australia as applied as a law of a participating
jurisdiction (other than South Australia or Western Australia); and
(h) the
Regulations referred to in paragraph (a) as applied as a law of a
participating jurisdiction (other than South Australia or Western Australia);
national gas objective means the objective set out in section 23;
National Gas Rules or Rules means—
(a) the
initial National Gas Rules; and
(b)
Rules made by the AEMC under this Law, including Rules that amend or
revoke—
(i)
the initial National Gas Rules; or
(ii)
Rules made by it;
natural gas means a substance that—
(a) is
in a gaseous state at standard temperature and pressure; and
(b)
consists of naturally occurring hydrocarbons, or a naturally occurring mixture
of hydrocarbons and non-hydrocarbons, the principal constituent of which is
methane; and
(c) is
suitable for consumption;
natural gas service means—
(a) a
pipeline service; or
(b) the
supply of natural gas; or
(c) a
service ancillary to the service described in paragraph (b);
Natural Gas Services Bulletin Board means the website maintained by the
Bulletin Board operator that contains information of the kind specified in the
Rules in relation to natural gas services;
NCC means the National Competition Council established by section 29A of the
Trade Practices Act 1974 of the Commonwealth;
NCC recommendation or decision means—
(a) a
coverage recommendation; or
(b) a
coverage revocation recommendation; or
(c) a
no-coverage recommendation; or
(d) a
price regulation exemption recommendation; or
(e) a
reclassification decision; or
(f) a
light regulation determination; or
(g) a
decision of the NCC under Chapter 3 Part 2 Division 2 to revoke a light
regulation determination; or
(h) a
decision of the NCC not to make a decision referred to in paragraph (f) or
(g); or
(i)
advice under section 172;
new facility means an extension to, or expansion of the capacity of, a covered
pipeline which is to be treated as part of the covered pipeline—
(a) in
accordance with the extension and expansion requirements contained in an
applicable access arrangement applying to the pipeline services provided by
means of that covered pipeline; or
(b)
under this Law;
Note—
See also sections 18 and 19.
no-coverage recommendation means a recommendation of the NCC under Chapter 5
Part 2;
non scheme pipeline user means a person who—
(a) is a
party to a contract with a service provider under which the service provider
provides or intends to provide a pipeline service to that person by means of a
pipeline that is not a scheme pipeline; or
(b) has
a right under an access determination to be provided with a pipeline service
by means of a pipeline that is not a scheme pipeline;
offence provision means a provision of this Law the breach or contravention of
which by a person exposes that person to a finding of guilt by a court;
officer has the same meaning as officer has in relation to a corporation under
section 9 of the Corporations Act 2001 of the Commonwealth;
old access law means Schedule 1 to the Gas Pipelines Access (Western
Australia) Act 1998 as in force from time to time before the commencement of
section 30 of the National Gas Access (WA) Act 2009 ;
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
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 or issued under or for the
purposes of that Act, relating to—
(a) the
safe haulage of natural gas in that jurisdiction; or
(b) the
safe operation of a pipeline in that jurisdiction;
pipeline service means—
(a) a
service provided by means of a pipeline, including—
(i)
a haulage service (such as firm haulage, interruptible
haulage, spot haulage and backhaul); and
(ii)
a service providing for, or facilitating, the
interconnection of pipelines; and
(b) a
service ancillary to the provision of a service referred to in paragraph (a),
but does not include the production, sale or purchase of natural gas or
processable gas;
pipeline service standard means a standard relating to the standard of the
pipeline services provided by a service provider by means of a covered
pipeline imposed—
(a) by
or under jurisdictional gas legislation; or
(b) by
the AER—
(i)
under an access arrangement decision; or
(ii)
in accordance with the Rules;
price or revenue regulation means regulation of—
(a) the
prices, charges or tariffs for pipeline services to be, or that are to be,
provided; or
(b) the
revenue to be, or that is to be, derived from the provision of pipeline
services;
price regulation exemption means an exemption under Chapter 5 Part 3;
price regulation exemption recommendation means a recommendation of the NCC
under section 162;
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;
rate of return instrument —see section 30D(2);
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 (WA) Act 2009 that apply as a law of this jurisdiction;
regulator has the meaning given to that term in section 9(1) of the
National Gas Access (WA) Act 2009;
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;
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;
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;
user or consumer association has the meaning given by section 244;
user or consumer interest group has the meaning given by section 244;
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 (WA) Act 2009 .
[Section 2 modified: WA Act Sch. 1 cl. 3; amended:
see SA Act No. 30 of 2009 s. 6 and WA Gazette 18 Dec 2009 p. 5167; SA Act No.
79 of 2013 s. 19 and WA Gazette 14 Mar 2014 p. 632; SA Act No. 33 of 2018 and
WA Gazette 5 Apr 2019 p. 1007-8; SA Act No. 37 of 2020 s. 47 and WA Gazette 4
Sep 2024 p. 2215; SA Act No. 3 of 2021 s. 33 and WA Gazette 22 Jan 2025 p.
63-4.]
(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 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.
[Section 2A inserted: WA Act Sch. 1 cl. 4.]
In this Law, a
reference to the National Gas Access (Western Australia) Act 2008 , if any, is
to be read as a reference to the National Gas Access (WA) Act 2009 .
[Section 2B inserted: WA Act Sch. 1 cl. 4.]
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 | |
|
2 | |
|
3 |
Section 131 |
|
4 |
Section 133 |
|
5 |
Section 134 |
|
6 |
Section 135 |
|
7 |
Section 136 |
|
8 |
Section 139 |
|
9 |
Section 140 |
|
10 |
Section 141 |
|
11 |
Section 143(6) |
|
12 |
Section 147 |
|
13 |
Section 148 |
|
14 |
Section 168 |
|
15 |
Section 169(3) |
|
16 |
Section 170 |
|
17 |
Section 195 |
|
18 |
Section 223 |
|
19 |
Section 225 |
|
20 |
Section 227 |
|
21 |
Section 228 |
(1) Subject to this
section, the civil penalty for a breach of a civil penalty provision is—
(a) in
the case of a breach of a civil penalty provision, other than a provision
prescribed under paragraph (b)
or (c)
—
(i)
if the breach is by a natural person—
(A) an amount not exceeding $33 900; plus
(B) an amount not exceeding $3 390 for
every day during which the breach continues;
(ii)
if the breach is by a body corporate—
(A) an amount not exceeding $170 000; plus
(B) an amount not exceeding $17 000 for
every day during which the breach continues; or
(b) in
the case of a breach of a civil penalty provision prescribed by the
Regulations for the purposes of this paragraph—
(i)
if the breach is by a natural person—
(A) an amount not exceeding $287 000; plus
(B) an amount not exceeding $14 400 for
every day during which the breach continues;
(ii)
if the breach is by a body corporate—
(A) an amount not exceeding $1 435 000;
plus
(B) an amount not exceeding $71 800 for
every day during which the breach continues; or
(c) in
the case a breach of a civil penalty provision prescribed by the Regulations
for the purposes of this paragraph—
(i)
if the breach is by a natural person—an amount not
exceeding $500 000;
(ii)
if the breach is by a body corporate—an amount not
exceeding the greater of the following:
(A) $10 000 000;
(B) if the Court can determine the value of
any benefit reasonably attributable to the breach of the civil penalty
provision that the body corporate, and any body corporate related to the body
corporate, has obtained, directly or indirectly—3 times the value of
that benefit;
(C) if the Court cannot determine the value
of the benefit—10% of the annual turnover of the body corporate during
the 12-month period ending at the end of the month in which the body corporate
breached, or began breaching, the civil penalty provision.
Note—
See Schedule 2 clause 47A, which provides for the amounts specified in this
subsection to be adjusted every 3 years to reflect movements in the consumer
price index. The adjusted amounts are published on the AER's website.
or (C)
will only apply in a particular case if the AER, in applying for an order
under section 231(2)(a), requests that those provisions be applied in that
particular case.
[Section 3A inserted: SA Act No. 37 of 2020 s. 48
and WA Gazette 4 Sep 2024 p. 2215.]
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 |
(1) A prospective user
is a person who seeks or wishes to be provided with a pipeline service by
means of a scheme pipeline.
(2) To avoid doubt, a
user is also a prospective user if the user seeks or wishes to be provided
with a pipeline service by means of a scheme pipeline other than a pipeline
service already provided to them under—
(a) a
contract; or
(b) an
access determination.
(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 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).
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).
(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.
(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.
(1) This section
applies if—
(a) more
than 1 service provider (a service provider group ) carries out a controlling
pipeline activity in respect of a pipeline (or a part of a pipeline); and
(b)
under this Law or the Rules a service provider is required or allowed to do a
thing.
(2) A service provider
of the service provider group (the complying service provider ) may do that
thing on behalf of the other service providers of the service provider group
if the complying service provider has the written permission of all of the
service providers of that group to do that thing on behalf of the service
provider group.
(3) Unless this Law or
the Rules otherwise provide, on the doing of a thing referred to in subsection
(2) by a complying service provider, the service providers of the service
provider group on whose behalf the complying service provider does that thing,
must, for the purposes of this Law and the Rules, each be taken to have done
the thing done by the complying service provider.
(4) This section does
not apply to a thing required or allowed to be done under section 131 or
Chapter 4 Part 2.
(5) In this
section—
controlling pipeline activity means own, control or operate.
(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.
A pipeline is commissioned when the pipeline is first used for the haulage of
natural gas, on a commercial basis.
(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.
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.
The pipeline coverage criteria are—
(a) that
access (or increased access) to pipeline services provided by means of the
pipeline would promote a material increase in competition in at least 1 market
(whether or not in Australia), other than the market for the pipeline services
provided by means of the pipeline;
(b) that
it would be uneconomic for anyone to develop another pipeline to provide the
pipeline services provided by means of the pipeline;
(c) that
access (or increased access) to the pipeline services provided by means of the
pipeline can be provided without undue risk to human health or safety;
(d) that
access (or increased access) to the pipeline services provided by means of the
pipeline would not be contrary to the public interest.
The form of regulation factors are—
(a) the
presence and extent of any barriers to entry in a market for pipeline
services;
(b) the
presence and extent of any network externalities (that is, interdependencies)
between a natural gas service provided by a service provider and any other
natural gas service provided by the service provider;
(c) the
presence and extent of any network externalities (that is, interdependencies)
between a natural gas service provided by a service provider and any other
service provided by the service provider in any other market;
(d) the
extent to which any market power possessed by a service provider is, or is
likely to be, mitigated by any countervailing market power possessed by a user
or prospective user;
(e) the
presence and extent of any substitute, and the elasticity of demand, in a
market for a pipeline service in which a service provider provides that
service;
(f) the
presence and extent of any substitute for, and the elasticity of demand in a
market for, electricity or gas (as the case may be);
(g) the
extent to which there is information available to a prospective user or user,
and whether that information is adequate, to enable the prospective user or
user to negotiate on an informed basis with a service provider for the
provision of a pipeline service to them by the service provider.
(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.
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.
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.
For the purposes of this Law, 2 or more bodies corporate are related to each
other if they are related bodies corporate within the meaning of the
Corporations Act 2001 of the Commonwealth.
[Section 19A inserted: SA Act No. 37 of 2020 s. 49
and WA Gazette 4 Sep 2024 p. 2215.]
Schedule 2 to this Law applies to this Law, the Regulations and the Rules and
any other statutory instrument made under this Law.
[Heading inserted: WA Act Sch. 1 cl. 5.]
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.
[Section 20A inserted: WA Act Sch. 1 cl. 5.]
(1) The following
jurisdictions are participating jurisdictions for the purposes of this
Law—
(a) the
State of South Australia; and
(b) the
Commonwealth, a Territory or a State (other than South Australia) if there is
in force, as part of the law of that jurisdiction, a law that applies this Law
or any part of this Law (whether by a law that corresponds to Part 2 of the
National Gas (South Australia) Act 2008
of South Australia or by some other law).
(2) If a law of a
participating jurisdiction referred to in subsection (1)(b)
ceases to be in force, the jurisdiction ceases to be a participating
jurisdiction.
[Section 21 inserted: see SA Act No. 3 of 2021 s.
34 and WA Gazette 22 Jan 2025 p. 63-4.]
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
Ministers of the Crown in right of the other participating jurisdictions
administering the laws of those jurisdictions that apply this Law or any part
of this Law (whether by a law that corresponds to Part 2 of the National Gas
(South Australia) Act 2008
of South Australia or by some other law).
[(c), (d) deleted]
[Section 22 amended: see SA Act No. 3 of 2021 s.
35 and WA Gazette 22 Jan 2025 p. 63-4.]
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—
(a)
price, quality, safety, reliability and security of supply of natural gas; and
(b) the
achievement of targets set by a participating jurisdiction—
(i)
for reducing Australia’s greenhouse gas emissions;
or
(ii)
that are likely to contribute to reducing
Australia’s greenhouse gas emissions.
Note—
The AEMC must publish targets in a targets statement: see section 72A.
[Section 23 amended: see SA Act No. 26 of 2023 s.
14.]
Without limiting the National Gas Access (WA) Act 2009 Part 3, the
Regulations may make provision about a matter relating to the achievement of
targets mentioned in section 23(b) of this Law.
[Section 23A inserted: see SA Act No. 26 of 2023
s. 15; WA Act Sch. 1 cl. 5A.]
(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
(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.
(1) Subject to this
section, the MCE may issue a statement of policy principles in relation to any
matters that are relevant to the exercise and performance by the AEMC of its
functions and powers in—
(a)
making a Rule; or
(b)
conducting a review under section 83.
(2) Before issuing a
statement of policy principles, the MCE must be satisfied that the statement
is consistent with the national gas objective.
(3) As soon as
practicable after issuing a statement of policy principles, the MCE must give
a copy of the statement to the AEMC.
(4) The AEMC must
publish the statement in the South Australian Government Gazette and on its
website as soon as practicable after it is given a copy of the statement.
The National Gas Rules have the force of law in this jurisdiction.
(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
(da) to
make a rate of return instrument; and
(e) AER
economic regulatory functions or powers; and
(f) to
prepare and publish reports on the financial and operational performance of
service providers in providing pipeline services by means of covered
pipelines; and
(g) to
approve compliance programs of service providers relating to compliance by
service providers with this Law or the Rules; and
(h) any
other functions and powers conferred on it under this Law or the Rules.
(2) The AER has the
power to do all things necessary or convenient to be done for or in connection
with the performance of its functions.
[Section 27 amended: see SA Act No. 33 of 2018 s.
14 and WA Gazette 5 Apr 2019 p. 1007.]
(1) The AER must, in
performing or exercising an AER economic regulatory function or power—
(a)
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; and
(b) if
the AER is making a designated regulatory decision —
(i)
ensure that —
(A) the covered pipeline service provider
that provides the pipeline services to which the applicable access arrangement
decision will apply; and
(B) users or prospective users of the
pipeline services that the AER considers have an interest in the matter; and
(C) any user or consumer associations or
user or consumer interest groups that the AER considers have an interest in
the matter,
are, in accordance
with the Rules —
(D) informed of the material issues under
consideration by the AER; and
(E) given a reasonable opportunity to make
submissions in respect of the decision before it is made; and
(ii)
specify —
(A) the manner in which the constituent
components of the decision relate to each other; and
(B) the manner in which that
interrelationship has been taken into account in the making of the decision;
and
[(iii) deleted]
(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”.
[Section 28 amended: see SA Act No. 79 of 2013 s.
20 and WA Gazette 14 Mar 2014 p. 632; SA Act No. 3 of 2021 s. 36 and WA
Gazette 22 Jan 2025 p. 63-4.]
Any delegation by the AER under section 44AAH of the Trade Practices Act 1974
of the Commonwealth or by the 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.
[Section 29 modified: WA Act Sch. 1 cl. 6.]
(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)
delete subsection (3)(c) of the adopted section and insert:
(c) the
Australian Energy Regulator established by section 44AE of the
Trade Practices Act 1974 of the Commonwealth;
(b)
delete subsection (6)(a)(i) of the adopted section and insert:
(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.
[Section 30 modified: WA Act Sch. 1 cl. 7.]
[Heading inserted: see SA Act No. 33 of 2018 s. 15
and WA Gazette 5 Apr 2019 p. 1007.]
[Heading inserted: see SA Act No. 33 of 2018 s. 15
and WA Gazette 5 Apr 2019 p. 1007.]
In this Division—
consumer reference group , for making a rate of return instrument, see
section 30H(1)(a)
;
explanatory information , for a rate of return instrument, means information
about the content of the instrument, including (but not limited to)
information explaining—
(a) the
reasons for the rate of return on capital or the value of imputation credits
under the instrument; and
(b) how
the stated value, or the way to calculate the rate or value, was decided; and
(c) if
the instrument replaces another instrument—
(i)
the differences (if any) between the instrument and the
replaced instrument; and
(ii)
the reasons for any differences; and‚
(d) why
the AER is satisfied the instrument will, or is most likely to, contribute to
the achievement of the national gas objective to the greatest degree; and
(e) how
the AER had regard to the following in making the instrument:
(i)
the revenue and pricing principles;
(ii)
the matters mentioned in section 30G
;
(iii)
estimation methods, financial models, market data and
other evidence relevant to making the instrument;
(iv)
prevailing conditions in the market for equity funds;
(v)
the interrelationships between financial parameters used,
or to be used, in relation to deciding the rate or value.
[Section 30A inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
(1) A rate of return
instrument has the force of law in this jurisdiction.
(2) An Act of this
jurisdiction regulating the making of subordinate legislation does not apply
to a rate of return instrument.
[Section 30B inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
A rate of return instrument is binding on—
(a) the
AER in relation to the performance or exercise of an AER economic regulatory
function or power; and
(b) each
covered pipeline service provider in relation to a matter relevant to the
performance or exercise of an AER economic regulatory function or power.
[Section 30C inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
[Heading inserted: see SA Act No. 33 of 2018 s. 15
and WA Gazette 5 Apr 2019 p. 1007.]
(1) This section
applies if a rate of return on capital or the value of imputation credits is
required for performing or exercising an AER economic regulatory function or
power.
(2) The AER must make
an instrument (a rate of return instrument ) stating—
(a) for
a rate of return on capital—the way to calculate the rate; and
(b) for
the value of imputation credits—the value or the way to calculate the
value.
(3) The AER may make
an instrument only if satisfied the instrument will, or is most likely to,
contribute to the achievement of the national gas objective to the greatest
degree.
(4) Subject to
subsection (3)
, the way to calculate a rate of return on capital must include a weighted
average of an allowed return on equity and an allowed return on debt.
(5) In making an
instrument, the AER must have regard to—
(a) the
revenue and pricing principles; and
(b)
other information the AER considers appropriate.
[Section 30D inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
(1) If a rate of
return instrument states the value of imputation credits, the instrument must
state a single value to apply in relation to all covered pipeline service
providers.
(2) If a rate of
return instrument states a way to calculate the rate of return on capital or
the value of imputation credits, the instrument must—
(a)
provide for the same methodology to apply in relation to all covered pipeline
service providers in calculating the rate or value; and
(b)
provide for the methodology to apply automatically without the exercise of any
discretion by the AER.
Example for paragraph (b)—
The instrument can not include different methodologies or a band of values
from which the AER could choose in applying the instrument.
(3) Subject to
subsections (1)
and (2)
, the instrument may include other matters the AER considers appropriate.
Example—
Matters to help a covered pipeline service provider calculate a rate of return
or the value of imputation credits.
[Section 30E inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
[Heading inserted: see SA Act No. 33 of 2018 s. 15
and WA Gazette 5 Apr 2019 p. 1007.]
Subject to this Division, the AER may make a rate of return instrument in the
way it considers appropriate.
[Section 30F inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
In making a rate of return instrument, the AER must also have regard to the
following—
(a)
advice, recommendations or submissions given by a consumer reference group;
(b)
submissions made, and the report published, under section 30H
;
(c)
submissions made under section 30J
;
(d) the
report given by the independent panel under section 30K
.
[Section 30G inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
(1) Before publishing
a draft rate of return instrument under this Subdivision, the AER must—
(a)
establish a reference group to help the AER implement an effective consumer
consultation process for making the proposed instrument (a consumer reference
group ); and
(b)
publish a notice on its website—
(i)
inviting persons to make a written submission to the AER
about the proposed instrument; and
(ii)
stating the period, not less than 28 days, within which a
submission must be made; and
(c) seek
concurrent expert opinions or evidence about the proposed instrument.
(2) A person may make
a submission after the stated period only with the written approval of the
AER.
(3) Subject to
subsections (4)
and (5)
, the AER may seek the expert opinions or evidence in the way it considers
appropriate.
Example—
The AER might convene a conference of experts to identify key issues, and
areas of dispute and agreement among the experts, about the content of the
proposed instrument.
(4) The AER must call
for nominations of eligible experts but may seek the expert opinions or
evidence from any eligible expert.
(5) If practicable,
the AER must seek the expert opinions or evidence from at least 3 eligible
experts.
(6) The AER must
publish on its website—
(a)
submissions made under this section; and
(b) a
report on the outcomes of seeking the expert opinions or evidence.
(7) In this
section—
eligible expert means a person with qualifications or experience in a field
the AER considers relevant to making a rate of return instrument.
Examples of relevant fields—
Finance, economics, law, consumer affairs, institutional investment.
[Section 30H inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
(1) A consumer
reference group for making a rate of return instrument—
(a) is
to consist of the members appointed by the AER; and
(b) may
carry out its activities, including giving advice or recommendations to the
AER about the instrument, in the way it considers appropriate.
(2) Without limiting
subsection (1)(b)
, the consumer reference group may—
(a)
consult with consumers of natural gas; and
(b)
facilitate consumer engagement in the process for making the instrument; and
(c) make
written submissions to the AER about the content of the instrument and the
process for making it.
(3) The AER must
publish on its website any written advice, recommendations or submissions
given to it by the consumer reference group.
[Section 30I inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
(1) The AER must, at
least 6 months before making a rate of return instrument, publish on its
website—
(a) a
draft of the proposed instrument and the explanatory information for the
instrument; and
(b) a
notice—
(i)
inviting persons to make a written submission to the AER
about the proposed instrument; and
(ii)
stating the period, not less than 28 days, within which a
submission must be made.
(2) A person may make
a submission after the stated period only with the written approval of the
AER.
(3) The AER must
publish submissions made under this section on its website.
[Section 30J inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
(1) The AER must, as
soon as practicable after publishing the draft instrument, establish an
independent panel to give the AER a written report about the instrument.
(2) The panel—
(a) may
carry out its activities, including giving the report, in the way it considers
appropriate; but
(b) must
seek to give the report by consensus.
(3) The panel
must—
(a)
consist of at least 3 members, appointed by the AER, who have qualifications
or experience in a field the AER considers relevant to making a rate of return
instrument; and
Examples of relevant fields—
Finance, economics, law, consumer affairs, institutional investment.
(b) give
the report to the AER before the AER makes the instrument.
(4) The AER must take
reasonable steps to minimise and manage any conflicts of interest a panel
member may have in relation to making the instrument.
(5) The report
must—
(a)
include the panel’s assessment of the evidence and reasons supporting
the rate of return on capital or the value of imputation credits under the
instrument; and
(b)
state whether the report is given by consensus.
(6) The AER must
publish the report on its website.
[Section 30K inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
The AER must publish explanatory information for a rate of return instrument
on its website when the instrument is published under section 30N
.
[Section 30L inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
Failure to comply with
this Subdivision does not invalidate or otherwise affect a rate of return
instrument.
[Section 30M inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
[Heading inserted: see SA Act No. 33 of 2018 s. 15
and WA Gazette 5 Apr 2019 p. 1007.]
After making a rate of return instrument, the AER must publish the instrument
on its website.
Note—
See section 30L
for the requirement to publish explanatory information for the instrument.
[Section 30N inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
A rate of return instrument—
(a)
commences on the day after it is published on the AER’s website; and
(b)
remains in force until the end of the day it is replaced under section 30P
.
[Section 30O inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
(1) The AER
must—
(a)
review each rate of return instrument; and
(b) make
a new rate of return instrument under this Division to replace the reviewed
instrument.
(2) The AER must
replace the reviewed instrument by publishing the new instrument on its
website on the day that is—
(a) the
fourth anniversary of the day the reviewed instrument was published; or
(b) if
the day mentioned in paragraph (a)
is not a business day—the first business day after that day.
[Section 30P inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
(1) A rate of return
instrument—
(a)
applies for the purposes of an AER economic regulatory decision made after the
commencement of the instrument; and
(b) does
not affect an AER economic regulatory decision made before the commencement of
the instrument.
(2) To remove any
doubt, it is declared that the application of the instrument under this Law,
including, for example, in making a full access arrangement decision, is an
AER economic regulatory function or power.
[Section 30Q inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
[ 30R. Section 30R inserted: see SA Act No. 33 of
2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007; deleted: WA Act Sch. 1 cl. 7A.]
[Heading inserted: see SA Act No. 33 of 2018 s. 15
and WA Gazette 5 Apr 2019 p. 1007.]
(1) If a person wishes
to give information to the AER for the purposes of this Division in
confidence—
(a) the
person must give the AER written notice that the person claims the information
is confidential; and
(b) give
reasons to support the claim, including—
(i)
information about the detriment that might be caused to
the person if the information were disclosed by the AER; and
(ii)
information that—
(A) is reasonably within the person’s
knowledge and capacity to give; and
(B) may be relevant to the AER’s
consideration under section 329 about whether the public benefit in disclosing
the information outweighs the detriment.
(2) In giving reasons
to support a claim under subsection (1)
about information received from another person (a third party ), a person may
include information that—
(a) is
reasonably within the person’s knowledge and capacity to give; and
(b) is
about the detriment that might be caused to the third party if the information
were disclosed by the AER; and
(c) may
be relevant to the AER’s consideration under section 329 about whether
the public benefit in disclosing the information outweighs the detriment.
(3) In acting under
subsection (1)
, a person must specifically identify the information in relation to which the
claim is made.
(4) Information given
to the AER for the purposes of this Division is not to be regarded as being
given in confidence, or to be confidential in any way, unless the information
is subject to an express claim of confidentiality made under this section.
[Section 30S inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
(1) Chapter 10 Part 2
Division 1 applies in relation to publishing information given to the AER in
confidence under this Division.
(2) In this
section—
information includes advice, recommendations, submissions and reports.
[Section 30T inserted: see SA Act No. 33 of 2018
s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
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.
(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.
(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.
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: $620.
Note—
See Schedule 2 clause 47B, which provides for criminal penalty amounts to be
adjusted every 3 years to reflect movements in the consumer price index. The
adjusted amounts are published on the AER's website.
[Section 34 amended: see SA Act No. 37 of 2020 s.
50 and WA Gazette 4 Sep 2024 p. 2215.]
(1) An authorised
person may apply to a magistrate for the issue of a search warrant in relation
to a particular place if the person—
(a)
believes on reasonable grounds that—
(i)
there is or has been or will be a breach of a relevant
provision; and
(ii)
there is or may be a thing or things of a particular kind
connected with that breach on or in that place; or
(b)
reasonably suspects that—
(i)
there may have been a breach of a relevant provision; and
(ii)
there is or may be a thing or things of a particular kind
connected with that breach on or in that place.
(2) If a magistrate is
satisfied by the evidence, on oath or by affidavit, of an authorised person
that there are reasonable grounds for suspecting that there is, or may be
within the next 7 days, a thing or things of a particular kind connected with
a breach or possible breach of a relevant provision on or in a place, the
magistrate may issue a search warrant authorising an authorised person named
in the warrant—
(a) to
enter the place specified in the warrant, with such assistance and by the use
of such force as is necessary and reasonable;
(b) to
search the place or any part of the place;
(c) to
search for and seize a thing named or described in the warrant and which the
person believes on reasonable grounds to be connected with the breach or
possible breach of the relevant provision;
(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.
(1) This section
applies if the occupier or another person who apparently represents the
occupier is present at premises when a search warrant is being executed.
(2) The authorised
person executing the warrant must—
(a)
identify himself or herself to that person; and
(b)
announce that he or she is authorised by the warrant to enter the place; and
(c)
before using force to enter, give the person an opportunity to allow entry;
and
(d) give
the person a copy of the warrant.
(3) The authorised
person executing the warrant is not entitled to exercise any powers under the
warrant in relation to premises if the authorised person does not comply with
subsection (2).
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.
(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.
(1) If an authorised
person executing a warrant seizes a document or other thing in accordance with
the warrant, the authorised person must if he or she is not a person employed
by the AER, give the document or other thing seized to the AER.
(2) The AER must take
reasonable steps to return the document or thing to the person from whom it
was seized if the reason for its seizure no longer exists.
(3) If the document or
thing seized has not been returned within 3 months after it was seized, the
AER must take reasonable steps to return it unless—
(a)
proceedings for the purpose for which the document or thing was retained have
commenced within that 3 month period and those proceedings (including any
appeal) have not been completed; or
(b) a
magistrate makes an order under section 40 extending the period during which
the document or thing may be retained.
(1) The AER may apply
to a magistrate—
(a)
within 3 months after a document or other thing was seized in accordance with
a warrant; or
(b) if
an extension has been granted under this section, before the end of the period
of the extension,
for an extension of the period for which the AER may retain the document or
thing but so that the total period of retention does not exceed 12 months.
(2) An application
must be made before proceedings for the purpose for which the document or
thing was retained have been commenced.
(3) A magistrate may
order such an extension if he or she is satisfied that—
(a) it
is in the interests of justice; and
(b) the
total period of retention does not exceed 12 months; and
(c)
retention of the document or other thing is necessary—
(i)
for the purposes of an investigation into whether a
breach of a relevant provision has occurred; or
(ii)
to enable evidence of a breach of a relevant provision to
be obtained for the purposes of a proceeding under this Law.
(4) If proceedings are
commenced for the purpose for which the document or thing was retained at any
time before the expiry of the period specified in an order under this section,
the document or thing may be retained until those proceedings (including any
appeal) have been completed despite those proceedings being completed after
the period specified in the order.
(5) At least 7 days
prior to the hearing of an application under this section by a magistrate,
notice of the application must be sent to the owner of the document or thing
described in the application.
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—$3 400;
(b) in
the case of a body corporate—$17 000.
Note—
See Schedule 2 clause 47B, which provides for criminal penalty amounts to be
adjusted every 3 years to reflect movements in the consumer price index. The
adjusted amounts are published on the AER's website.
[Section 41 amended: see SA Act No. 37 of 2020 s.
51 and WA Gazette 4 Sep 2024 p. 2215.]
(1) If the AER has
reason to believe that a person is capable of providing information, producing
a document or giving evidence 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 do 1 or more of the following:
(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); or
(c)
appear before the AER, or before a member of the staff assisting the AER who
is an SES employee or an acting SES employee and who is specified in the
notice, at a time and place specified in the notice, to provide any
information or to give any evidence of the kind referred to in subsection (1),
either orally or in writing, and to produce any documents of the kind referred
to in subsection (1).
(2A) When subsection
(2)(c) 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 “a member of the staff assisting the
AER who is an SES employee or an acting SES employee and” had been
deleted and the following had been inserted instead:
a staff member as
defined in the Economic Regulation Authority Act 2003 section 3
(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—$6 300;
(b) in
the case of a body corporate—$31 500.
Note—
See Schedule 2 clause 47B, which provides for criminal penalty amounts to be
adjusted every 3 years to reflect movements in the consumer price index. The
adjusted amounts are published on the AER's website.
(3a) A person must
not, when appearing under subsection (2)(c), refuse or fail to answer a
question that the person is required to answer for the purpose of providing
information or giving evidence unless the person has a reasonable excuse.
Maximum penalty: $6 300.
Note—
See Schedule 2 clause 47B, which provides for criminal penalty amounts to be
adjusted every 3 years to reflect movements in the consumer price index. The
adjusted amounts are published on the AER's website.
(4) A person must not,
in purported compliance with a relevant notice, provide information or give
evidence that the person knows is false or misleading in a material
particular.
Maximum penalty:
(a) in
the case of a natural person—$6 300;
(b) in
the case of a body corporate—$31 500.
Note—
See Schedule 2 clause 47B, which provides for criminal penalty amounts to be
adjusted every 3 years to reflect movements in the consumer price index. The
adjusted amounts are published on the AER's website.
(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.
(5a) It is a
reasonable excuse for the purposes of subsection (3a) if the person is not
capable of providing the information or giving the evidence (as the case may
be) to which the question relates.
(6) It is a reasonable
excuse for a natural person to—
(a) fail
to provide information or to give evidence of the kind referred to in
subsection (1) to the AER, or to a person specified in a relevant notice;
(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 to a person specified in a relevant notice; 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 or give evidence that would disclose the contents of a
document prepared for the purposes of a meeting of the Cabinet or a committee
of the Cabinet of the Commonwealth or of a State or a Territory; or
(b)
produce a document prepared for the purposes of a meeting of the Cabinet or a
committee of the Cabinet of the Commonwealth or of a State or a Territory; or
(c)
provide information, give evidence 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.
(9a) The AER, or a
person specified in a relevant notice under this section, may require evidence
given under subsection (2)(c) to be given on oath or affirmation and for that
purpose the AER or specified person (as the case may be) may administer the
oath or affirmation.
(9b) A person must
not, without reasonable excuse, refuse or fail to be sworn or to make an
affirmation under subsection (9a)
.
Maximum penalty: $6 300.
Note—
See Schedule 2 clause 47B, which provides for criminal penalty amounts to be
adjusted every 3 years to reflect movements in the consumer price index. The
adjusted amounts are published on the AER's website.
(10) A person incurs,
by complying with a relevant notice, no liability for breach of contract,
breach of confidence or any other civil wrong.
(11) Subject to the
preceding subsections, the Court may, on application by the AER on behalf of
the Commonwealth, if satisfied that a person has breached subsection (3) or
(3a), make an order that the person take such action as the Court requires for
remedying the breach.
(11A) When subsection
(11) 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.
(12) To avoid doubt,
the Court may act under subsection (11)
if satisfied on the balance of probabilities that a person is in breach of
subsection (3) or (3a) (as the case may be).
(13) The AER must not
exercise, or continue to exercise, a power under subsection (1) in relation to
a matter (and any notice under that subsection will cease to have
effect)—
(a)
after the AER has commenced proceedings in relation to the matter, other than
proceedings for an injunction (whether interim or final); or
(b) if
proceedings for a final injunction have been commenced by the AER—after
the close of pleadings in those proceedings.
(14) Subsection (13)
does not prevent the AER from—
(a)
using any information, evidence or document acquired under this section in any
proceedings if the information, evidence or document has been obtained before
the commencement of those proceedings; or
(b)
exercising a power under this section for a purpose other than for the
purposes of proceedings referred to in that subsection.
(15) Any information,
evidence or document obtained under subsection (14)(b)
may be used in any proceedings if it is found to be relevant to those
proceedings.
(16) The Regulations
may make any other provision in relation to the form, content or service of a
notice under this section.
(17) An annual report
for the AER must include the following information relating to the relevant
reporting period for that report:
(a) the
number of notices (if any) given under subsection (2)(c) during the reporting
period to appear to provide information or to give evidence orally;
(b) in
relation to a notice under paragraph (a)
—a general description of the nature of the matter or matters in respect
of which the notice was given;
(c) the
number of proceedings (if any) commenced during the reporting period to
challenge a notice given under subsection (2)(c) to appear to provide
information or to give evidence orally.
(18) 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 provide information, give evidence or produce a document in
response to a notice under this section; or
(d)
proposes to appear, or has appeared, in response to a notice under this
section.
Maximum penalty: $6 300.
Note—
See Schedule 2 clause 47B, which provides for criminal penalty amounts to be
adjusted every 3 years to reflect movements in the consumer price index. The
adjusted amounts are published on the AER's website.
(19) In this
section—
acting SES employee has the same meaning as in the Public Service Act 1999 of
the Commonwealth;
SES employee has the same meaning as in the Public Service Act 1999 of the
Commonwealth.
[Section 42 amended: see SA Act No. 37 of 2020 s.
52 and WA Gazette 4 Sep 2024 p. 2215; modified: WA Act Sch. 1 cl. 7B.]
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.
(1) A contributing
service is a service that the AER, in accordance with this section, decides is
a service that contributes in a material way to the provision of a pipeline
service by a scheme pipeline service provider.
(2) In deciding
whether a service is a service that contributes in a material way to the
provision of a pipeline service by a scheme pipeline service provider, the AER
must have regard to—
(a) the
nature and kind of the service;
(b) when
the service was first supplied;
(c) the
nature and extent of the contribution of the service relative to—
(i)
the pipeline service; and
(ii)
all other services supplied by the scheme pipeline
service provider;
(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.
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.
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.
This Division does not limit the operation of Division 3.
(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
(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.
(1) This section
applies if the AER is intending to—
(a)
serve a regulatory information notice on a related provider; or
(b) make
a general regulatory information order that will apply to a class of related
providers.
(2) In addition to the
matters set out in section 48(2), the AER, in considering whether it is
reasonably necessary to serve the regulatory information notice, or make the
general regulatory information order, must have regard to—
(a)
whether the scheme pipeline service provider being supplied a contributing
service by the related provider or related providers to which the intended
regulatory information instrument will apply can—
(i)
provide the information to be specified in that
instrument; or
(ii)
prepare, maintain or keep the information to be specified
in the particular manner and form to be specified in that instrument; and
(b) the
extent to which the related provider or related providers to which the
intended regulatory information instrument will apply is, or are, supplying a
contributing service on a genuinely competitive basis; and
(c) the
nature of any ownership or control between—
(i)
the scheme pipeline service provider being supplied a
contributing service by a related provider to which the intended regulatory
information instrument will apply; and
(ii)
that related provider; and
(d) the
nature of any ownership or control as between different related providers
supplying the contributing service to the scheme pipeline service provider;
and
(e) any
other matter the AER considers relevant.
(3) For the purposes
of subsection (2)(b), in considering whether a contributing service is being
supplied on a genuinely competitive basis, the AER may take into
account—
(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.
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.
(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) deleted]
[Section 51 amended: see SA Act No. 3 of 2021 s.
37 and WA Gazette 22 Jan 2025 p. 63-4.]
(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 or a rate of return instrument; and
(c) the
AER considers that, having regard to the time within which it must make that
AER economic regulatory decision or a rate of return instrument, the time
within which the AER requires the information is of the essence.
(4) A notice under
subsection (1) must—
(a)
invite the scheme pipeline service provider, or the related provider, to make
written representations to the AER as to whether the AER should serve the
regulatory information notice on them; and
(b)
specify the period within which the scheme pipeline service provider, or the
related provider, may make the representations.
(5) The period that
must be specified in accordance with subsection (4) must be—
(a) in
the case of an urgent notice to be served—a period of not less than 5
business days and not more than 10 business days calculated from the date of
the notice under subsection (1);
(b) in
all other cases—a period of at least 20 business days calculated from
the date of the notice under subsection (1).
(6) The AER must
consider the written representations made in accordance with a notice under
subsection (1) before making its decision in accordance with this Division to
serve the regulatory information notice.
[Section 52 amended: see SA Act No. 33 of 2018 s.
16 and WA Gazette 5 Apr 2019 p. 1007.]
(1) A regulatory
information instrument—
(a) must
specify the information required to be—
(i)
provided to the AER;
(ii)
prepared, maintained or kept in the particular manner and
form specified in the instrument; and
(b) may
specify the manner and form in which the information described in the
instrument is required to be—
(i)
provided to the AER;
(ii)
prepared, maintained or kept; and
(c) must
state the reasons of the AER for requiring the information described in the
instrument to be—
(i)
provided to the AER;
(ii)
prepared, maintained or kept in the particular manner and
form specified in the instrument; and
(d) in
the case of an instrument requiring information to be provided to the AER,
must specify when the information must be provided.
(2) In the case of a
regulatory information notice, the notice must name the scheme pipeline
service provider or the related provider to whom it applies.
(3) In the case of a
general regulatory information order, the order must specify the class of
scheme pipeline service provider, or related provider, to whom the order
applies.
Without limiting section 53(1)(a), the information that may be required to be
provided to the AER, or to be prepared, maintained or kept, may include—
(a)
historic, current and forecast information (including financial information);
(b)
information that is or may be derived from other information in the possession
or control of the scheme pipeline service provider or the related provider to
whom the instrument applies;
(c)
information to enable the AER to verify whether the scheme pipeline service
provider to whom the instrument applies is or has been complying with Chapter
4;
(d)
information to enable the AER to verify compliance with any requirements for
the allocation of costs between natural gas services under—
(i)
the Rules; or
(ii)
an applicable access arrangement.
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;
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.
On being served a regulatory information notice, a person named in the notice
must comply with the notice.
(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.
(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.
(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 to make a rate of return instrument; 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 or the making of a rate of
return instrument; and
(b) the
scheme pipeline service provider or related provider—
(i)
does not provide the information to the AER in accordance
with the applicable regulatory information instrument; or
(ii)
provides information that is insufficient (when compared
to what was requested under the applicable regulatory information instrument).
(2) Without limiting
sections 56 and 57 and despite anything to the contrary in this Law or the
Rules, the AER—
(a) may
make the AER economic regulatory decision or the rate of return instrument on
the basis of the information the AER has at the time it makes that decision or
instrument; and
(b) in
making that decision or instrument, 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.
[Section 59 amended: see SA Act No. 33 of 2018 s.
17 and WA Gazette 5 Apr 2019 p. 1007.]
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—$6 300;
(b) in
the case of a body corporate—$31 500.
Note—
See Schedule 2 clause 47B, which provides for criminal penalty amounts to be
adjusted every 3 years to reflect movements in the consumer price index. The
adjusted amounts are published on the AER's website.
[Section 60 amended: see SA Act No. 37 of 2020 s.
53 and WA Gazette 4 Sep 2024 p. 2215.]
(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.
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.
(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.
(1) Subject to this
section, the AER may prepare a report on the financial performance or
operational performance of 1 or more scheme pipeline service providers in
providing pipeline services by means of a scheme pipeline.
Note—
The AER may only prepare a report under subsection (1) if the preparation of
the report will or is likely to contribute to the achievement of the national
gas objective: see section 28.
(2) A report prepared
under this section may—
(a) deal
with the financial or operational performance of the scheme pipeline service
provider in relation to—
(i)
complying with pipeline service standards; and
(ii)
standards relating to the provision of pipeline services
to users or end users; and
(iii)
the profitability of scheme pipeline service providers in
providing pipeline services; and
(b) if
the AER considers it appropriate, deal with the performance of the scheme
pipeline service provider in relation to other matters or things if that
performance is directly related to the performance or exercise by the AER of
an AER economic regulatory function or power.
(3) A report prepared
under this section may include—
(a)
information provided to the AER by a person in compliance with a regulatory
information instrument; and
(b) in
the case of a report dealing with the financial performance of 1 or more
scheme pipeline service providers, a comparison of the profitability of the
scheme pipeline service providers to which the report relates from the
provision of pipeline services by them.
(4) Before preparing a
report under this section, the AER must, in accordance with the Rules, consult
with the persons or bodies specified by the Rules.
(5) The AER may
publish a report prepared under this section on its website.
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.
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.
(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
(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.
(a1) The AER must
prepare guidelines about the exercise of its powers under section 42,
including about—
(a) the
rights and obligations of persons who are served with a relevant notice under
that section; and
(b) the
penalties applying under that section for non-compliance with a notice; and
(c) the
purposes for which information obtained under that section may be used.
(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 (a1) or (1) on its website.
[Section 68 amended: see SA Act No. 37 of 2020 s.
54 and WA Gazette 4 Sep 2024 p. 2215.]
[ 68C. Deleted: see SA Act No. 3 of 2021 s. 38 and
WA Gazette 22 Jan 2025 p. 63-4.]
[Heading inserted: WA Act Sch. 1 cl. 8.]
(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
(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.
[Section 68A inserted: WA Act Sch. 1 cl. 8.]
(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.
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.
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.
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.
(1) The AEMC must
prepare and maintain a document (the targets statement ) stating the targets
set by a participating jurisdiction mentioned in section 23(b).
(2) If the MCE or a
Minister of a participating jurisdiction gives a written direction to the AEMC
to include a target in, or remove a target from, the targets statement, the
AEMC must comply with the direction.
(3) A Minister may
give a written direction under subsection (2)
only in relation to a target set by the Minister’s participating
jurisdiction.
(4) The AEMC must
publish on its website—
(a) the
targets statement; and
(b) each
direction given under subsection (2)
.
(5) In having regard
to the national gas objective under this Law, the Regulations or the Rules
with respect to the matters mentioned in section 23(b), a person or body must
consider, as a minimum, the targets stated in the targets statement.
[Section 72A inserted: see SA Act No. 26 of 2023
s. 16.]
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.
(1) Subject to this
Division, the AEMC, in accordance with this Law and the Regulations, may make
Rules, to be known, collectively, as the “National Gas Rules”, for
or with respect to—
(a)
regulating—
(i)
access to pipeline services;
(ii)
the provision of pipeline services;
(iii)
the collection, use, disclosure, copying, recording,
management and publication of information in relation to natural gas services;
(b) any
matter or thing contemplated by this Law, or is necessary or expedient for the
purposes of this Law.
Note—
The procedure for the making of a Rule by the AEMC is set out in Chapter 9
Part 3.
(2) Without limiting
subsection (1), the AEMC, in accordance with this Law and the Regulations, may
make Rules for or with respect to any matter or thing specified in Schedule 1
to this Law.
(3) Rules made by the
AEMC in accordance with this Law and the Regulations may—
(a) be
of general or limited application;
(b) vary
according to the persons, times, places or circumstances to which they are
expressed to apply;
(c)
confer functions or powers on, or leave any matter or thing to be decided or
determined by—
(i)
the AER, the AEMC or the Bulletin Board operator; or
(ii)
any panel or committee established by the AEMC; or
(iii)
any other body established, or person appointed, in
accordance with the Rules;
(d)
confer rights or impose obligations on any person or a class of person (other
than the AER or the AEMC);
(e)
confer a function on the AER, the AEMC or the Bulletin Board operator to make
or issue guidelines, tests, standards, procedures or any other document
(however described) in accordance with the Rules, including guidelines, tests,
standards, procedures or any other document (however described) that leave any
matter or thing to be determined by the AER, the AEMC or the Bulletin Board
operator;
(f)
empower or require any person (other than a person referred to in paragraph
(e)) or body to make or issue guidelines, tests, standards, procedures or any
other document (however described) in accordance with the Rules;
(g)
apply, adopt or incorporate wholly or partially, or as amended by the Rules,
the provisions of any standard, rule, specification, method or document
(however described) formulated, issued, prescribed or published by any person,
authority or body whether—
(i)
as formulated, issued, prescribed or published at the
time the Rules are made or at any time before the Rules are made; or
(ii)
as amended from time to time;
(h)
confer a power of direction on the AER, the AEMC or the Bulletin Board
operator to require a person conferred a right, or on whom an obligation is
imposed, under the Rules to comply with—
(i)
a guideline, test, standard, procedure or other document
(however described) referred to in paragraph (e) or (f); or
(ii)
a standard, rule, specification, method or document
(however described) referred to in paragraph (g);
(i)
if this section authorises or requires Rules that
regulate any matter or thing, prohibit that matter or thing or any aspect of
that matter of thing;
(j)
provide for the review of, or a right of appeal against, a decision or
determination made under the Rules and for that purpose, confer jurisdiction
on the Court;
(k)
require a form prescribed by or under the Rules, or information or documents
included in, attached to or given with the form, to be verified by statutory
declaration;
(l) in a
specified case or class of case, exempt a person or body performing or
exercising a function or power, or conferred a right, or on whom an obligation
is imposed, under the Rules or a class of any such person or body from
complying with a provision, or a part of a provision, of the Rules;
(m)
provide for the modification or variation of a provision of the Rules (with or
without substitution of a provision of the Rules or a part of a provision of
the Rules) as it applies to a person or body performing or exercising a
function or power, or conferred a right, or on whom an obligation is imposed,
under the Rules or a class of any such person or body;
(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.
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”.
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.
(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.
(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).
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.
(1) The MCE may give a
written direction to the AEMC that the AEMC conduct a review into—
(a) any
matter relating to a market for gas (including services provided in a market
for gas); or
(b) any
matter relating to access to pipelines or to pipeline services provided by
means of pipelines; or
(c) the
operation and effectiveness of the Rules; or
(d) any
matter relating to the Rules; or
(e) the
effectiveness of competition in a market for gas for the purpose of giving
advice about whether to retain, remove or reintroduce price controls on prices
for retail gas services.
(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.
(1) The terms of
reference of a MCE directed review will be as specified in the direction given
by the MCE.
Example—
The terms of reference may require a MCE directed review to be
conducted—
(a)
about a specific matter within a specified time; or
(b)
whenever a specified event occurs; or
(c) on
an annual basis.
(2) Without limiting
subsection (1), the MCE may in its direction to the AEMC do 1 or more of the
following:
(a)
require the AEMC to give a report on a MCE directed review to the MCE within a
specified period;
(b)
require the AEMC to make the report on a MCE directed review publicly
available or available to specified persons or bodies;
(c)
require the AEMC to make a draft report publicly available or available to
specified persons or bodies during a MCE directed review;
(d)
require the AEMC to consider specified matters in the conduct of a MCE
directed review;
(e)
require the AEMC to have specified objectives in the conduct of a MCE directed
review which need not be limited by the national gas objective;
(f)
require the AEMC to assess a particular matter in relation to services
provided in a market for gas against specified criteria or a specified
methodology;
(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.
(1) The AEMC must
publish notice of a MCE directed review on its website.
(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.
[Section 81 amended: see SA Act No. 3 of 2021 s.
39 and WA Gazette 22 Jan 2025 p. 63-4.]
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.
(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.
(1) In this
section—
non-scheme pipeline means—
(a) a
transmission pipeline that is not a scheme pipeline; and
(b) a
distribution pipeline that is not a scheme pipeline.
(2) Without limiting
any other provision, the Rules may provide for such things as—
(a) the
collection, disclosure, verification, management and publication of
information in relation to services that may be provided by a non-scheme
pipeline; and
(b)
without limiting paragraph (a)
, requirements about the information that must be provided by service
providers in relation to access (or potential access) to services provided by
means of any non-scheme pipeline, including information about—
(i)
the terms and conditions on which the service provider is
prepared to make a non-scheme pipeline available for use by others; and
(ii)
the procedures that the service provider will apply in
determining a proposal for access to a non-scheme pipeline; and
(iii)
relevant prices, costs and methodologies associated with
gaining access to (and using) a non-scheme pipeline and relevant or related
services; and
(iv)
access contracts and arrangements used (or required to be
used) by the service provider; and
(c)
without limiting paragraphs (a)
and (b)
, information to be provided by a service provider in response to a request
for access to services provided by means of a non-scheme pipeline; and
(d)
requirements to ensure that information is accurate and complete; and
(e)
requirements that relate to any matter that is contemplated by Chapter 4 Part
2 (as if a reference to a covered pipeline service provider in that Part were
a reference to a service provider in relation to a non-scheme pipeline and
subject to any modifications made by the Rules and subject to such other
necessary alterations and modifications so as to apply those requirements in
relation to non-scheme pipelines); and
(f) the
imposition or recovery of costs associated with any matter referred to in a
preceding paragraph or otherwise associated with facilitating access (or
potential access) to services provided by means of a non-scheme pipeline.
(3) Nothing in
subsection (2)
limits any power to grant an exemption from complying with a provision, or
part of a provision, of the Rules.
(4) A reference in
subsection (2)
with respect to gaining access (or potential access) to services provided by
means of a non-scheme pipeline includes a reference to services that will
require an extension to, or expansion of the capacity of, a non-scheme
pipeline.
[Section 83A inserted: see SA Act No. 23 of 2017
s. 4 and WA Gazette 22 Dec 2017 p. 5984.]
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.
(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.
(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.
(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 or a part of
this Law as a law of this jurisdiction—see section 22(b).
[Section 87 amended: see SA Act No. 3 of 2021 s.
40 and WA Gazette 22 Jan 2025 p. 63-4.]
(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.
(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.
(1) The NCC must take
all reasonable measures to protect from unauthorised use or disclosure
information given to it in confidence in, or in connection with, the
performance of its functions or the exercise of its powers under this Law, the
Regulations or the Rules.
(2) For the purposes
of subsection (1), the disclosure of information as required or permitted by
this Law, a law of the Commonwealth, a State or Territory is taken to be
authorised use and disclosure of the information.
(3) Disclosing
information to 1 of the following is authorised use and disclosure of the
information:
(a) the
ACCC;
(b) the
AER;
(c) the
ERA;
(d) the
AEMC;
(e) any
staff or consultant assisting a body mentioned in paragraph (a) to (d) in
performing its functions or exercising its powers;
(f) any
other person or body prescribed by the Regulations for the purpose of this
paragraph.
(4) A person or body
to whom information is disclosed under subsection (3) may use the information
for any purpose connected with the performance of the functions, or the
exercise of the powers, of the person or body.
(5) The NCC may impose
conditions to be complied with in relation to information disclosed under
subsection (3).
(6) For the purposes
of subsection (1), the use or disclosure of information by a person for the
purposes of performing the person’s functions, or exercising the
person’s powers, as—
(a) a
Councillor or a person referred to in section 29M of the
Trade Practices Act 1974 of the Commonwealth; or
(b) a
person who is authorised to perform or exercise a function or power of, or on
behalf of, the NCC,
is taken to be authorised use and disclosure of the information.
(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.
(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.
(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).
Subject to section 94, on receiving an application under section 92 the NCC
must deal with it in accordance with the Rules.
(1) This section
applies if an application under section 92 is made in relation to a proposed
pipeline after—
(a) an
application has been made to the AER under the Rules for the approval, by the
AER, of the tender process for the construction and operation of the proposed
pipeline as a competitive tender process; or
(b) a
tender approval decision has been made in respect of the tender process for
the construction and operation of the proposed pipeline.
(2) The NCC may defer
consideration of whether to make a recommendation in respect of the
application until—
(a) the
application for the approval, by the AER, of the tender process for the
construction and operation of the proposed pipeline as a competitive tender
process has been rejected by the AER under the Rules; or
(b) the
tender approval decision—
(i)
has been revoked under the Rules; or
(ii)
has lapsed as provided under the Rules.
(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.
(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.
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.
(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.
(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.
(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.
(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.
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.
(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;
(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.
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.
(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).
On receiving an application under section 102, the NCC must deal with it in
accordance with the Rules.
(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.
(1) In making a
coverage revocation recommendation, the NCC—
(a) must
give effect to the pipeline coverage criteria; and
(b) in
deciding whether or not the pipeline coverage criteria are satisfied must have
regard to the national gas objective.
(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.
(1) On receiving a
coverage revocation recommendation, the relevant Minister must decide whether
to make a coverage revocation determination in respect of the pipeline to
which the recommendation relates.
(2) The relevant
Minister must use his or her best endeavours to make the decision within 20
business days after receiving the coverage revocation recommendation.
(3) If the relevant
Minister is unable to make the decision within the period specified under
subsection (2), he or she must make the decision as soon as reasonably
practicable after the end of the specified period.
(4) The relevant
Minister, for the purpose of making the decision, may request submissions or
comments in relation to an application under section 102.
(5) A coverage
revocation determination or a decision not to make a coverage revocation
determination must—
(a) be
made in accordance with this Law and the Rules; and
(b)
contain the information required by the Rules; and
(c) be
given to the persons specified by the Rules; and
(d) be
made publicly available in accordance with the Rules.
(6) In the case of a
coverage revocation determination, the determination must specify the date the
determination takes effect.
(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.
(1) In deciding
whether to make a coverage revocation determination under this Division, the
relevant Minister—
(a) must
give effect to the pipeline coverage criteria; and
(b) in
deciding whether or not the pipeline coverage criteria are satisfied in
relation to the pipeline—
(i)
must have regard to the national gas objective; and
(ii)
must have regard to the coverage revocation
recommendation; and
(iii)
must take into account any submissions or comments he or
she receives on a request under section 106(4); and
(iv)
may take into account any relevant submissions and
comments made to the NCC by the public under the Rules in relation to the
application.
(2) The relevant
Minister gives effect to the pipeline coverage criteria as follows:
(a) if
the relevant Minister is satisfied that all the pipeline coverage criteria are
satisfied in relation to the pipeline—the Minister must not make a
coverage revocation determination;
(b) if
the relevant Minister is not satisfied that all the pipeline coverage criteria
are satisfied in relation to the pipeline—the Minister must make a
coverage revocation determination.
The pipeline the subject of a coverage revocation determination ceases to be a
covered pipeline when the coverage revocation determination takes effect.
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.
(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.
This Subdivision applies if a service provider provides pipelines
services—
(a) by
means of a covered pipeline that is not a designated pipeline; and
(b) to
which an applicable access arrangement approved or made under a full access
arrangement decision applies.
(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.
On receiving an application under section 112, the NCC must deal with it in
accordance with the Rules.
(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
(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.
(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.
(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.
(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.
(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 on its website.
(4) On publication of
a notice under subsection (3) the service provider must comply with section
132.
(5) The light
regulation determination applying to the pipeline services is, by force of
this section, revoked on the same day that an access arrangement that applies
to the pipeline services provided by that service provider is, as the case
requires, approved or made under a full access arrangement decision.
(6) On the revocation
of the light regulation determination the pipeline services to which the light
regulation determination applied cease to be light regulation services.
[Section 117 amended: see SA Act No. 3 of 2021 s.
43 and WA Gazette 22 Jan 2025 p. 63-4.]
(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.
(1) This section
applies if an application is made under section 118 and—
(a)
there is an application for a coverage revocation determination under section
102 under consideration—
(i)
in respect of the covered pipeline by means of which the
light regulation services the subject of the application under section 118 are
provided; and
(ii)
in respect of which the NCC has not made a coverage
revocation recommendation; or
(b) an
application for a coverage revocation determination is made under section 102
in respect of the covered pipeline by means of which the light regulation
services the subject of the application under section 118 are provided—
(i)
after the application under section 118; but
(ii)
before the NCC makes its decision in respect of the
application under section 118.
(2) Despite anything
to the contrary in this Part, the NCC must make its decision in respect of the
application under this section.
(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.
(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.
(1) Subject to section
124, on the making of a decision under section 119(2) or 120 revoking a light
regulation determination, the service provider must comply with section 132.
(2) However, the
decision under section 119(2) or 120 revoking a light regulation determination
does not take effect until an access arrangement that applies to the pipeline
services provided by that service provider is approved or made under a full
access arrangement decision.
(3) The effect of a
decision under section 119(2) or 120 revoking a light regulation determination
is that the pipeline services to which the light regulation determination
applied cease to be light regulation services.
(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.
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.
(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.
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.
(1) The MCE may
request the AER to conduct a review into, and report to it as to, whether a
pipeline should continue to be a designated pipeline.
(2) A service provider
that provides pipeline services by means of a designated pipeline may request
the AER to conduct a review into, and report to the MCE as to, whether that
pipeline should continue to be a designated pipeline.
(3) A request under
subsection (1) or (2) must be in writing.
(4) On receiving a
request under this section, the AER must conduct a review as to whether the
pipeline the subject of the request should continue to be a designated
pipeline.
(5) In conducting a
review under this section, the AER must—
(a) have
regard to—
(i)
the national gas objective; and
(ii)
whether there has been a material change in competition
in a market served by the designated pipeline; and
(b)
consult, in accordance with the Rules, with the public.
(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.
(1) A pipeline to
which a tender approval decision relates is deemed to be a covered pipeline on
and from the date the tender approval decision becomes irrevocable by
operation of the Rules.
(2) The pipeline
ceases to be a covered pipeline—
(a) if
there is an applicable access arrangement that applies to the pipeline
services provided, or that are to be provided by means of that
pipeline—when that arrangement expires; or
(b) when
a coverage revocation determination made in respect of that pipeline takes
effect.
Note—
Under the Rules, the NCC will—
(a)
classify the pipeline to be constructed and operated in accordance with an
approved tender process as a cross boundary transmission pipeline, cross
boundary distribution pipeline, transmission pipeline or distribution
pipeline; and
(b)
determine the relevant Minister for the purposes of that pipeline.
(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.
(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).
(1) The NCC must make
a decision (a reclassification decision ) within—
(a) 4
months after receiving an application under section 128; or
(b) if
the Rules specify a later period, that period.
(2) A reclassification
decision must—
(a) be
made in accordance with this Law and the Rules; and
(b)
contain the information required by the Rules; and
(c) be
given to the persons specified by the Rules; and
(d) be
made publicly available in accordance with the Rules.
(3) In making a
reclassification decision, the NCC must have regard to—
(a) the
national gas objective; and
(b) the
pipeline classification criterion.
(4) The NCC must also
as part of the reclassification decision—
(a) if
it reclassifies the pipeline the subject of the application as a transmission
pipeline—determine whether the transmission pipeline is also a cross
boundary transmission pipeline;
(b) if
it reclassifies the pipeline the subject of the application as a distribution
pipeline—determine whether the distribution pipeline is also a cross
boundary distribution pipeline.
(5) If, under
subsection (4), the NCC determines that a pipeline reclassified as a
distribution pipeline is also a cross boundary distribution pipeline, the NCC
must determine the participating jurisdiction with which the cross boundary
distribution pipeline is most closely connected. In doing so, the NCC must
have regard to the jurisdictional determination criteria.
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.
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).
(1) A covered pipeline
service provider must submit to the AER, for approval by the AER under the
Rules, a full access arrangement or revisions to an applicable access
arrangement that is a full access arrangement, in respect of the pipeline
services the provider provides or intends to provide—
(a) in
the circumstances specified by the Rules; and
(b)
within the period of time specified by the Rules.
(2) Subsection (1)
does not apply—
(a) if
the pipeline services that are, or are intended to be, provided by the service
provider light regulation services; or
(b) to
the extent the Rules provide subsection (1) is not to apply.
Note—
A service provider who provides or intends to provide pipeline services by
means of an international pipeline to which a price regulation applies must
submit a limited access arrangement to the AER for approval: see section 168.
(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.
(2) For the purposes
of subsection (1), a person is deemed to engage in conduct for a particular
purpose if—
(a) the
conduct is or was engaged in for that purpose or for a purpose that includes,
or included, that purpose; and
(b) that
purpose is or was a substantial purpose.
(3) A person may be
taken to have engaged in conduct for the purpose referred to in subsection (1)
even though, after all the evidence has been considered, the existence of that
purpose is ascertainable only by inference from the conduct of the person or
of any other person or from other relevant circumstances.
(4) Subsection (3)
does not limit the manner in which the purpose of a person may be established
for the purpose of subsection (1).
(5) In this
section—
(a) a
reference to engaging in conduct is a reference to doing or refusing to do any
act, including refusing to supply a pipeline service or, without reasonable
grounds, limiting or disrupting a pipeline service, or making, or giving
effect to, a provision of, a contract or arrangement, arriving at, or giving
effect to, a provision of, an understanding or requiring the giving of, or
giving, a covenant;
(b) a
reference to refusing to do an act includes a reference to—
(i)
refraining (otherwise than inadvertently) from doing that
act; or
(ii)
making it known that that act will not be done.
(6) Subsection (1)
does not apply to conduct engaged in in accordance with an agreement, if the
agreement was in force on 30 March 1995.
Example—
An example of conduct which may be prohibited if the requisite purpose is
established is refusing to supply, or limiting or disrupting the supply of, a
pipeline service to a user or prospective user for technical or safety reasons
without reasonable grounds.
(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.
A covered pipeline service provider must comply with the queuing requirements
of an applicable access arrangement.
(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.
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.
(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
(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.
On and after the compliance date, a covered pipeline service provider must not
carry on a related business.
(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.
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.
This Division does not limit Division 2.
(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;
(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.
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.
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.
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.
(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.
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.
(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.
(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.
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.
An international pipeline is, for the purposes of this Chapter, a transmission
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.
On receiving an application under section 151, the NCC must deal with it in
accordance with the Rules.
(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.
(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.
(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
(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.
(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
(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.
(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.
(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.
(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.
(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.
(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.
(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.
On receiving an application under section 160, the NCC must deal with it in
accordance with the Rules.
(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.
(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
(ii)
other possible effects on the public interest; and
(b) may
have regard to any other relevant matter.
(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.
(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—
(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.
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 negotiations and the result of access negotiations.
Note—
See also sections 168 and 169(3).
(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.
(1) A service provider
must, within 60 business days after the grant of a price regulation exemption,
submit a limited 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.
(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.
Note—
See also section 160.
(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.
(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.
(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.
(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.
(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).
The relevant Minister may, at the request of the service provider, revoke a
greenfields pipeline incentive.
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.
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.
A greenfields pipeline incentive does not terminate, and cannot be revoked,
before the end of its term except as provided in this Part.
[Heading inserted: see SA Act No. 23 of 2017 s. 5
and WA Gazette 22 Dec 2017 p. 5984.]
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.
This Chapter is not to be taken to limit how a dispute about access to a
pipeline service may be raised or dealt with.
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.
(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).
(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
(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.
[Section 181A inserted: WA Act Sch. 1 cl. 9.]
(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.
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.
(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.
(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).
(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
(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).
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.
(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.
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).
(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.
(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
(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.
An access determination may, but need not, require a service provider to
provide a pipeline service to a prospective user.
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.
(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.
A party to an access dispute in respect of which an access determination is
made must comply with the access determination.
(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.
(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.
In a dispute hearing a party may appear in person or be represented by another
person.
(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
(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.
(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.
(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—$3 400;
(b) in
the case of a body corporate—$17 000.
Note—
See Schedule 2 clause 47B, which provides for criminal penalty amounts to be
adjusted every 3 years to reflect movements in the consumer price index. The
adjusted amounts are published on the AER's website.
[Section 200 amended: see SA Act No. 37 of 2020 s.
61 and WA Gazette 4 Sep 2024 p. 2215.]
(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.
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: $6 300.
Note—
See Schedule 2 clause 47B, which provides for criminal penalty amounts to be
adjusted every 3 years to reflect movements in the consumer price index. The
adjusted amounts are published on the AER's website.
[Section 202 amended: see SA Act No. 37 of 2020 s.
62 and WA Gazette 4 Sep 2024 p. 2215.]
(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
(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: $6 300.
Note—
See Schedule 2 clause 47B, which provides for criminal penalty amounts to be
adjusted every 3 years to reflect movements in the consumer price index. The
adjusted amounts are published on the AER's website.
(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).
[Section 203 amended: see SA Act No. 37 of 2020 s.
63 and WA Gazette 4 Sep 2024 p. 2215.]
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: $6 300.
Note—
See Schedule 2 clause 47B, which provides for criminal penalty amounts to be
adjusted every 3 years to reflect movements in the consumer price index. The
adjusted amounts are published on the AER's website.
[Section 204 amended: see SA Act No. 37 of 2020 s.
64 and WA Gazette 4 Sep 2024 p. 2215.]
(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
(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.
(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;
(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.
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.
In this Part—
nominated disputes has the meaning given by section 209(2).
(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.
(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 dispute resolution body may have regard to any other matter it
considers relevant.
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.
(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.
If an access determination contains—
(a) a
clerical mistake; or
(b) an
error arising from an accidental slip or omission; or
(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.
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.
(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.
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.
[Heading inserted: see SA Act No. 23 of 2017 s. 6
and WA Gazette 22 Dec 2017 p. 5984.]
[Heading inserted: see SA Act No. 23 of 2017 s. 6
and WA Gazette 22 Dec 2017 p. 5984.]
In this Chapter—
access determination means a determination of an arbitrator under Part 3
and includes a variation under Part 5
;
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 non-scheme pipeline (subject to the operation of
section 216C(2)
);
dispute hearing means a hearing conducted by an arbitrator under this Chapter
for the purpose of making an access determination;
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 that, by operation of an
access arrangement or access determination, is to be treated as part of the
pipeline;
non-scheme pipeline means a pipeline to which this Chapter applies by
operation of section 216C
;
party , in relation to an access dispute, has the meaning given by
section 216I
;
prospective user has the meaning given by section 216B
;
scheme administrator means the AER;
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 that, by operation of an
access arrangement or access determination, is to be treated as part of the
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
non-scheme pipeline; or
(b) has
a right under an access determination to be provided with a pipeline service
by means of a non-scheme pipeline.
[Section 216A inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
(1) For the purposes
of this Chapter, a prospective user is a person who seeks or wishes to be
provided with a pipeline service by means of a non-scheme pipeline.
(2) To avoid doubt, a
user is also a prospective user for the purposes of this Chapter if the user
seeks or wishes to be provided with a pipeline service by means of a
non-scheme pipeline other than a pipeline service already provided to them
under—
(a) a
contract; or
does not limit the operation of Part 5
.
[Section 216B inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
(1) Subject to
subsection (2)
, this Chapter applies to and in relation to—
(a) a
transmission pipeline that is not a scheme pipeline; and
(b) a
distribution pipeline that is not a scheme pipeline.
(2) This Chapter does
not apply to or in relation to—
(a) a
pipeline, or part of a pipeline, excluded from the operation of this Chapter
by the Rules; or
(b) a
pipeline within a class or group of pipelines excluded from the operation of
this Chapter by the Rules; or
(c) a
pipeline service (including in relation to a specific pipeline, or part of a
specific pipeline) excluded from the operation of this Chapter by the Rules.
[Section 216C inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
The provisions of this
Chapter applicable to the determination of an access dispute apply, subject to
such modifications as may be prescribed by the Rules, to the determination of
any dispute arising under any provision of the Rules specified in the Rules
for the purposes of this section.
[Section 216D inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
This Chapter is not to
be taken to limit how a dispute about access to a pipeline service may be
raised or dealt with.
[Section 216E inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
[Heading inserted: see SA Act No. 23 of 2017 s. 6
and WA Gazette 22 Dec 2017 p. 5984.]
The Rules may contain
provisions for or with respect to seeking access to a pipeline service
provided or to be provided by means of a non-scheme pipeline (or by part of a
non-scheme pipeline or by an extension to, or expansion of the capacity of, a
non-scheme pipeline).
[Section 216F inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
A prospective user or
user seeking access to a pipeline service provided or to be provided by means
of a non-scheme pipeline (or by part of a non-scheme pipeline or by an
extension to, or expansion of the capacity of, a non-scheme pipeline), and the
service provider for the relevant non-scheme pipeline, must negotiate in good
faith with each other about whether access can be granted and, if so, the
terms and conditions for the provision of access to the prospective user or
user (as the case requires).
[Section 216G inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
(1) Subject to this
section, if a prospective user or user (as the case requires) and a service
provider cannot agree about 1 or more aspects of access to a pipeline service
after a request has been made in accordance with the Rules, the prospective
user or user, or the service provider, may notify the scheme administrator, in
writing, that an access dispute exists.
(2) A notification
must include, in accordance with the Rules, information about—
(a) the
matters (if any) on which agreement has been reached; and
(b) the
matters that are in dispute; and
(c) any
other matter specified by the Rules.
(3) A notification
must be accompanied by the fee set by the Rules (if any).
(4) A notification
cannot be made under this section if the access dispute relates to a matter
excluded from arbitration under this Chapter by the Rules.
[Section 216H inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
The parties to an
access dispute are—
(a) the
parties to the negotiations that gave rise to the access dispute under
section 216H(1)
; and
(b) if
the scheme administrator is of the opinion that the resolution of the access
dispute may involve requiring another person to do something and that it is
appropriate that the person be joined as a party—that other person.
[Section 216I inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
[Heading inserted: see SA Act No. 23 of 2017 s. 6
and WA Gazette 22 Dec 2017 p. 5984.]
(1) If the scheme
administrator receives notification of an access dispute under Part 2
, the dispute must be referred to arbitration.
(2) The scheme
administrator must give notice of the referral of an access dispute to
arbitration to the parties to the negotiations that gave rise to the access
dispute and, if relevant, to any other person who will be a party to the
access dispute.
[Section 216J inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
(1) The parties to an
access dispute may agree to appoint, in accordance with the Rules, the
arbitrator for the purposes of an access dispute that is to be referred to
arbitration under this Part.
(2) If the parties do
not agree to the appointment of an arbitrator within a period specified by the
Rules, the arbitrator will be a person selected by the scheme administrator
after consultation with the parties to the access dispute.
(3) The arbitrator
must be a person who—
(a) is
independent of the parties to the dispute; and
(b) is
properly qualified to act in the resolution of the dispute; and
(c) has
no direct or indirect interest in the outcome of the dispute.
(4) If for some reason
an arbitrator does not complete an arbitration, the parties may agree, in
accordance with the Rules, to make a fresh appointment and, in default of
agreement within a period specified by the Rules, the scheme administrator
may, after consultation with the parties, make the appointment.
[Section 216K inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
(1) Unless an
arbitration is terminated under another provision of this Chapter, the
arbitrator must make a determination on access by the prospective user or user
(as the case requires) (including a determination that does not require a
service provider to provide access to any pipeline services).
(2) A determination
may deal with any matter relating to access by the prospective user or user to
the pipeline services specified by the Rules for the purposes of this
subsection (and the arbitrator must not make a determination that is
inconsistent with the Rules or goes beyond the matters specified by the
Rules).
(3) The Rules may
also, in connection with the making of an access determination, contain
provisions for or with respect to such things as—
(a) the
form of any determination; and
(b) the
content of any determination, including as to the giving of reasons; and
(c) the
time within which a determination must be made; and
(d) the
process for making a determination; and
(e) when
a determination takes effect; and
(f) the
giving of notice of the making of a determination.
[Section 216L inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
The arbitrator must,
when making a determination on access, take into account any pricing or other
principle specified in the Rules.
[Section 216M inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
(1) The arbitrator
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 that 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 216H
;
relevant exclusivity right means an express contractual right 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
notification of an access dispute under section 216H
.
[Section 216N inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
(1) An arbitrator may
determine not to proceed with an arbitration (and terminate the proceedings
under this Chapter) if the arbitrator considers that—
(a) the
notification of the dispute was vexatious; or
(b) the
subject matter of the dispute is trivial, misconceived or lacking in
substance; or
(c) the
party who notified the access dispute did not negotiate in good faith; or
(d)
there is some other good reason why the arbitration should not proceed.
(2) Furthermore, the
arbitrator may at any time terminate an arbitration without making an access
determination if the arbitrator considers that—
(a) the
prospective user or user seeking access is not engaging in the arbitration in
good faith; or
(b) the
terms and conditions on which access is to be granted should be governed by an
existing contract or determination.
(3) The arbitrator may
also at any time terminate an arbitration if the arbitrator considers that a
specified dispute termination circumstance has occurred.
(4) In subsection (3)
, a specified dispute termination circumstance is a circumstance specified by
the Rules as being a circumstance, the occurrence of which, entitles the
arbitrator to terminate an access dispute without any further step being
taken.
[Section 216O inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
(1) The prospective
user or user seeking access to pipelines services under this Chapter may
terminate the arbitration before an access determination is made by the
arbitrator.
(2) The arbitration is
terminated under this section by giving notice of termination to—
(a) the
arbitrator; and
(b) the
other parties to the arbitration; and
(c) the
scheme administrator.
[Section 216P inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
[Heading inserted: see SA Act No. 23 of 2017 s. 6
and WA Gazette 22 Dec 2017 p. 5984.]
(1) Subject to the
Rules and to subsection (2)
, an access determination is enforceable as if it were a contract between the
parties to the access determination.
(2) A prospective user
or user of a pipeline service to which an access determination relates is not
bound to seek access to the service (but if access is sought or obtained then
the prospective user or user (as the case requires) is bound by any relevant
provision of the access determination).
[Section 216Q inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
[Heading inserted: see SA Act No. 23 of 2017 s. 6
and WA Gazette 22 Dec 2017 p. 5984.]
(1) An access
determination may be varied by agreement between all parties to the access
determination.
(2) The Rules may also
contain provisions with respect to seeking variations to an access
determination.
(3) The provisions of
this Chapter about the arbitration of an access dispute apply with necessary
modifications to a proposal under the Rules to vary an access determination or
to a dispute arising out of such a proposal.
[Section 216R inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
[Heading inserted: see SA Act No. 23 of 2017 s. 6
and WA Gazette 22 Dec 2017 p. 5984.]
Chapter 6 Part 6
applies to an arbitration under this Chapter—
(a) as
if—
(i)
a reference in that Part to a dispute hearing were a
reference to a hearing conducted by an arbitrator for the purposes of making
an access determination under this Chapter; and
(ii)
a reference in that Part to a party or parties were a
reference to a party or the parties to an arbitration under this Chapter; and
(iii)
a reference in that Part to the dispute resolution body
were a reference to an arbitrator under this Chapter; and
(iv)
a reference in that Part to an access dispute were a
reference to an access dispute under this Chapter; and
(b)
subject to the exclusion of sections 206 and 207, and subject to any other
exclusion prescribed by the Regulations; and
(c)
subject to any modifications prescribed by the Regulations; and
(d) with
such other necessary alterations and modifications.
[Section 216S inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
[Heading inserted: see SA Act No. 23 of 2017 s. 6
and WA Gazette 22 Dec 2017 p. 5984.]
The Rules may make
provision with respect to correcting the following in an access determination:
(a) a
clerical mistake;
(b) an
error arising from an accidental slip or omission;
(c) a
material miscalculation of figures or a material mistake in the description of
any person, thing or matter referred to in an access determination;
(d) a
defect in form.
[Section 216T inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
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 non-scheme
pipeline during the period of the dispute.
[Section 216U inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
(1) Subject to this
section, the costs of an arbitration under this Chapter (including costs
associated with the arbitration process and the cost of the arbitrator) will
be shared equally between the parties to the arbitration.
(2) The Rules may make
provision with respect to the costs of an arbitration under this Chapter,
including rules that provide for a different approach to allocating costs
under subsection (1)
in specified circumstances.
(3) Costs payable to
an arbitrator are a debt due to the arbitrator and may be recovered by the
arbitrator in a court of competent jurisdiction.
(4) Despite anything
in a preceding subsection, the parties to an arbitration will bear their own
costs.
[Section 216V inserted: see SA Act No. 23 of 2017
s. 6 and WA Gazette 22 Dec 2017 p. 5984.]
The Bulletin Board operator is the person prescribed by the Regulations as the
Bulletin Board operator.
(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.
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;
(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.
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.
(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;
(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.
(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.
(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;
(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.
A person must not refuse to comply with the requirement in section 223(1) on
the ground of any duty of confidence.
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.
(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.
(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.
(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.
(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.
(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.
(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
(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.
(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.
(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.
(1) The Court may make
an order, on application by the AER on behalf of the Commonwealth, declaring
that a person has breached 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 has breached 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;
(d) an
order that the person implement a specified program for compliance with this
Law, the Regulations and the Rules;
(da) an
order that the person perform a specified service that relates to the breach
and that is for the benefit of the community or a section of the community;
(db) an
order that the person, at the person's expense, engage—
(i)
another person specified in the order; or
(ii)
another person in a class of persons specified in the
order,
to perform a service that is specified in the order and that relates to the
breach and that is for the benefit of the community or a section of the
community;
(dc) an
order to ensure that the person does not engage in further conduct of the same
nature, or similar or related conduct, during the period of the order (which
cannot exceed 3 years), including—
(i)
an order that the person establish a compliance program
or an education and training program for employees or other persons involved
in the person's business, being a program designed to ensure their awareness
of the responsibilities and obligations in relation to the conduct
constituting the breach, or similar or related conduct; or
(ii)
an order that the person revise the internal operations
of the person's business that led to the person committing the breach;
(dd) an
order that the person—
(i)
disclose, in the way and to the persons specified in the
order, specified information, being information that the person has possession
of or access to; and
(ii)
publish, at the person's expense and in the way specified
in the order, an advertisement in the terms specified in, or determined in
accordance with, the order;
(e) an
order of a kind prescribed by the Regulations.
(2a) An order under
paragraph (db) of subsection (2) is not enforceable against a person mentioned
in paragraph (db)(i) or (ii).
(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.
[Section 231 modified: WA Act Sch. 1 cl. 10;
amended: see SA Act No. 37 of 2020 s. 65 and WA Gazette 4 Sep 2024 p. 2215.]
(1) The Court may make
an order, on application by a person other than the AER, declaring that
another person has breached a conduct provision.
(2) If the order
declares a person has breached a conduct provision, the order may include 1 or
more of the following:
(a) an
order that the person cease, within a specified period, the act, activity or
practice constituting the breach;
(b) 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;
(c) an
order that the person 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.
(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.
[Section 232 amended: see SA Act No. 37 of 2020 s.
66 and WA Gazette 4 Sep 2024 p. 2215.]
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.
Every civil penalty ordered to be paid by a person declared to have breached 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
(b) the
nature and extent of any loss or damage suffered as a result of the breach;
and
(ba)
without limiting the operation of section 3A(1)(c)(ii)(B) or (C)—the
value of any benefit reasonably attributable to the breach that the person or,
in the case of a body corporate, any related body corporate, has obtained,
directly or indirectly; 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 have
breached 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.
[Section 234 amended: see SA Act No. 37 of 2020 s.
67 and WA Gazette 4 Sep 2024 p. 2215.]
A breach of a civil penalty provision is not an offence.
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.
(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.
Note—
Clause 49 of Schedule 2 to this Law sets out further provisions in relation to
double jeopardy.
(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.
A person who attempts to commit a breach of a civil penalty provision commits
a breach of that provision.
If a person is ordered to pay a civil penalty, the penalty is payable to the
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
Commonwealth.
[Section 240 modified: WA Act Sch. 1 cl. 11.]
In this Part—
person aggrieved includes a person whose interests are adversely affected.
(1) A person aggrieved
by—
(a) a
decision or determination of the AEMC under this Law, the Regulations or the
Rules; or
(b) a
failure by the AEMC to make a decision or determination under this Law, the
Regulations or the Rules; or
(c)
conduct engaged in, or proposed to be engaged in, by the AEMC for the purpose
of making a decision or determination under this Law, the Regulations or the
Rules,
may apply to the Court for judicial review of the decision or determination,
failure or conduct or proposed conduct.
Note—
The Commonwealth Minister, NCC and AER are subject to judicial review under
the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth.
(2) Unless the Court
otherwise orders, the making of an application to the Court under subsection
(1) does not affect the operation of the decision or determination referred to
in that subsection or prevent the taking of action to implement the decision
or determination.
(1) A person aggrieved
by—
(a) a
decision or determination of the Bulletin Board operator under this Law or the
Rules; or
(b) a
failure by the Bulletin Board operator to make a decision or determination
under this Law or the Rules; or
(c)
conduct engaged in, or proposed to be engaged in, by the Bulletin Board
operator for the purpose of making a decision or determination under this Law
or the Rules,
may apply to the Court for judicial review of the decision or determination,
failure or conduct or proposed conduct.
(2) Unless the Court
otherwise orders, the making of an application to the Court under subsection
(1) does not affect the operation of the decision or determination referred to
in that subsection or prevent the taking of action to implement the decision
or determination.
In this Part—
AER information disclosure decision means a decision of the AER under section
329 to disclose information, or the contents of a document;
applicant means—
[(a) deleted]
(b) a
person who makes an application under section 263;
review under this Part means a review under Division 3;
[Section 244 amended see SA Act No. 79 of 2013 s.
22 and WA Gazette 14 Mar 2014 p. 632; SA Act No. 3 of 2021 s. 44 and WA
Gazette 22 Jan 2025 p. 63-4.]
[Division 2 (s. 245-262) deleted: SA Act No. 3 of 2021 s. 45 and WA Gazette 22
Jan 2025 p. 63-4.]
(1) A person whose
interests are adversely affected by an AER information disclosure decision may
apply to the Tribunal for a review of the decision.
(2) An application
must be made in the form and manner determined by the Tribunal.
(3) An application may
only be made on the ground that—
(a) the
decision was not made in accordance with law; or
(b) the
decision is unreasonable having regard to all relevant circumstances.
(4) The person must
lodge the application with the Tribunal no later than 5 business days after
the date of the notice given under section 329(2), (3) or (6) to which the AER
information disclosure decision relates (whichever is the later).
(5) An application
under this section stays the operation of the decision until the earlier
of—
(a) 20
business days; or
(b) the
making of a determination by the Tribunal in respect of the application.
On the application of a party to a review under this Division, the Tribunal
may conduct the review in the absence of the public.
(1) Subject to this
Part, on receipt of an application under section 263, the Tribunal must make a
determination in respect of the application.
(2) A determination
under this section must only—
(a)
affirm the AER information disclosure decision; or
(b)
forbid disclosure by the AER of the information or document to which the AER
information disclosure decision the subject of the review relates; or
(c)
restrict, as specified in the determination, the intended disclosure by the
AER of the information or document to which the AER information disclosure
decision the subject of the review relates.
(3) For the purposes
of making a determination of the kind in subsection (2)(a), the Tribunal may
perform all the functions and exercise all the powers of the AER under this
Law or the Rules.
(4) A determination by
the Tribunal affirming, forbidding or restricting the AER information
disclosure decision is, for the purposes of this Law (other than this Part),
to be taken to be a decision of the AER.
(1) This section
applies if the Tribunal does not make a determination under section 265 within
20 business days after an application is lodged under section 263.
(2) The Tribunal must
be taken to have made a determination under section 265 affirming the AER
information disclosure decision to which the application relates.
The member of the Tribunal presiding in the review may require the AER to give
information and other assistance and to make reports, as specified, by the
member for the purposes of the review.
(1) Subject to this
section, the Tribunal may order that a party to a review under this Part pay
all or a specified part of the costs of another party to the review.
(2) The Tribunal must
not make an order requiring the AER or AEMO to pay the costs of another party
to the review unless the Tribunal considers that the AER or AEMO has conducted
their case in the review without due regard to—
(a) the
costs that would have to be incurred by another party to the review as a
result of that conduct; or
(b) the
time required by—
(i)
the Tribunal to hear the review as a result of that
conduct; or
(ii)
another party to prepare their case as a result of that
conduct; or
[(c) deleted]
[(3) deleted]
[Section 268 amended see SA Act No. 79 of 2013 s.
32 and WA Gazette 14 Mar 2014 p. 632; SA Act No. 3 of 2021 s. 46 and WA
Gazette 22 Jan 2025 p. 63-4.]
(1) If the Tribunal
makes an order for costs in a review under this Part, the Tribunal may in that
order fix the amount of costs payable by a party to the review on—
(a) a
party and party basis; or
(b) a
solicitor and client basis; or
(c) an
indemnity basis; or
(d) any
other basis as the Tribunal may decide.
[(2) deleted]
[Section 269 amended see SA Act No. 79 of 2013 s.
33 and WA Gazette 14 Mar 2014 p. 632; SA Act No. 3 of 2021 s. 47 and WA
Gazette 22 Jan 2025 p. 63-4.]
[ 269A, 270. Deleted: see SA Act No. 3 of 2021 s.
48 and WA Gazette 22 Jan 2025 p. 63-4.]
(1) If the Court is
satisfied, on the application of a party to an access determination, that
another party to the determination has engaged, is engaging, or is proposing
to engage in conduct that constitutes a contravention of the determination,
the Court may make all or any of the following orders:
(a) an
order granting an injunction on such terms as the Court thinks
appropriate—
(i)
restraining the other party from engaging in the conduct;
or
(ii)
if the conduct involves refusing or failing to do
something—requiring the other party to do that thing;
(b) an
order directing the other party to compensate the applicant for loss or damage
suffered as a result of the contravention;
(c) any
other order that the Court thinks appropriate.
(2) The revocation of
an access determination does not affect any remedy under subsection (1) in
respect of a contravention of the determination that occurred when the
determination was in force.
(3) If the Court has
power under subsection (1) to grant an injunction restraining a person from
engaging in particular conduct, or requiring a person to do anything, the
Court may make any other orders (including granting an injunction) that it
thinks appropriate against any other person who was involved in the
contravention concerned.
(4) A reference in
this section to a person involved in the contravention is a reference to a
person who has—
(a)
aided, abetted, counselled or procured the contravention; or
(b)
induced the contravention, whether through threats or promises or otherwise;
or
(c) been
in any way (directly or indirectly) knowingly concerned in or a party to the
contravention; or
(d)
conspired with others to effect the contravention.
(5) A reference in
this section to an access determination includes a reference to an access
determination under Chapter 6A.
[Section 271 amended: see SA Act No. 23 of 2017 s.
7 and WA Gazette 22 Dec 2017 p. 5984.]
On an application for an injunction under section 271, the Court may grant an
injunction by consent of all of the parties to the proceedings, whether or not
the Court is satisfied that the section applies.
The Court may grant an interim injunction pending determination of an
application under section 271.
The power of the Court to grant an injunction under section 271 restraining a
person from engaging in conduct may be exercised whether or not—
(a) it
appears to the Court that the person intends to engage again, or to continue
to engage, in conduct of that kind; or
(b) the
person has previously engaged in conduct of that kind; or
(c)
there is an imminent danger of substantial damage to any person if the first
mentioned person engages in conduct of that kind.
The power of the Court to grant an injunction under section 271 requiring a
person to do a thing may be exercised whether or not—
(a) it
appears to the Court that the person intends to refuse or fail again, or to
continue to refuse or fail, to do that thing; or
(b) the
person has previously refused or failed to do that thing; or
(c)
there is an imminent danger of substantial damage to any person if the first
mentioned person refuses or fails to do that thing.
The Court may discharge or vary an injunction or order granted under this
Part.
(1) The AER may serve
an infringement notice on a person if the AER believes on reasonable grounds
that the person has breached a civil penalty provision.
(2) The AER must,
however, serve an infringement notice not later than 12 months after the date
on which the AER forms a belief that there has been a breach of a civil
penalty provision.
(3) An infringement
notice may be served on a natural person—
(a) by
delivering it personally to the person; or
(b) by
sending it by post addressed to the person to their usual or last known place
of residence or business.
(4) An infringement
notice may be served on a person that is a body corporate—
(a) by
delivering it personally to the registered office or usual or last known place
of business of the body corporate; or
(b) by
sending it by post addressed to the body corporate to its registered office or
usual or last known place of business.
[Section 277 amended: see SA Act No. 37 of 2020 s.
68 and WA Gazette 4 Sep 2024 p. 2215.]
An infringement notice must state—
(a) the
date of the notice;
(b) that
the alleged breach is a breach of the civil penalty provision;
(c) the
nature, and a brief description, of the alleged breach;
(d) the
date, time and place of the alleged breach;
(e) the
infringement penalty for the alleged breach;
(f) the
manner in which the infringement penalty may be paid;
(g) the
time (being not less than 28 days after the date on which the notice is
served) within which the infringement penalty must be paid;
(h)
that, if the amount of the infringement penalty is paid before the end of the
time specified in the notice, proceedings will not be instituted in respect of
the alleged breach by the AER unless the notice is withdrawn before the end of
that time in accordance with section 282;
(i)
that the person is entitled to disregard the notice and
defend any proceedings in respect of the civil penalty provision;
(j) any
other particulars prescribed by the Regulations.
(1) In this
section—
tier 1 civil penalty provision means a provision with a civil penalty
determined under section 3A(1)(c);
tier 2 civil penalty provision means a provision with a civil penalty
determined under section 3A(1)(b);
tier 3 civil penalty provision means a provision with a civil penalty
determined under section 3A(1)(a).
(2) The infringement
penalty for a breach of a civil penalty provision is—
(a) in
the case of a tier 3 civil penalty provision—
(i)
if the breach is alleged to have been committed by a
natural person—$6 790 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision;
(ii)
if the breach is alleged to have been committed by a body
corporate—
(A) if the AER makes a determination under
subsection (3)
—$6 790 or any lesser amount that is prescribed by the Regulations in
relation to the civil penalty provision; or
(B) in any other case—$33 900 or any
lesser amount that is prescribed by the Regulations in relation to the civil
penalty provision;
(b) in
the case of a tier 2 or tier 1 civil penalty provision—
(i)
if the breach is alleged to have been committed by a
natural person—$13 600 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision;
(ii)
if the breach is alleged to have been committed by a body
corporate—$67 800 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision.
(3) In the case of a
body corporate that is not a listed corporation or a body corporate that is
subject to the infringement penalty by virtue only of being a related body
corporate, the AER may, in a particular case, determine that the infringement
penalty to be included in an infringement notice to be issued to the body
corporate in relation to an alleged breach of a tier 3 civil penalty provision
will be the amount applying under subsection (2)(a)(ii)(A)
if the AER considers this to be an appropriate course of action after taking
into account—
(a) the
nature of the alleged breach; and
(b) the
degree of financial impact on the body corporate if the higher infringement
penalty under subsection (2)(a)(ii)(B)
were to be imposed; and
(c) the
extent to which the imposition of the higher infringement penalty would appear
to be excessive in the circumstances; and
(d) any
other matter considered relevant by the AER.
Note—
See Schedule 2 clause 47A, which provides for the amounts specified in this
section to be adjusted every 3 years to reflect movements in the consumer
price index. The adjusted amounts are published on the AER's website.
[Section 279 inserted: see SA Act No. 37 of 2020
s. 69 and WA Gazette 4 Sep 2024 p. 2215.]
On serving an infringement notice under this Part, the AER must not institute
a proceeding in respect of the breach for which the infringement notice was
served if—
(a) the
time for payment stated in the infringement notice has not expired; and
(b) the
infringement notice has not been withdrawn by the AER in accordance with
section 282.
The AER may accept payment of the infringement penalty even after the
expiration of the time for payment stated in the infringement notice if—
(a) a
proceeding has not been instituted in respect of the breach to which the
infringement penalty relates; and
(b) the
infringement notice has not been withdrawn by the AER in accordance with
section 282.
(1) The AER may
withdraw an infringement notice at any time before the end of the time for
payment specified in the notice by serving a withdrawal notice on the person
served with the infringement notice.
(2) A withdrawal
notice may be served on a natural person—
(a) by
delivering it personally to the person; or
(b) by
sending it by post addressed to the person to their usual or last known place
of residence or business.
(3) A withdrawal
notice may be served on a person that is a body corporate—
(a) by
delivering it personally to the registered office or usual or last known place
of business of the body corporate; or
(b) by
sending it by post addressed to the body corporate to its registered office or
usual or last known place of business.
(4) An infringement
notice may be withdrawn even if the infringement penalty has been paid.
If an infringement notice is withdrawn in accordance with section 282, the
amount of any infringement penalty paid must be refunded by the AER.
No proceedings may be taken by the AER against a person on whom an
infringement notice was served in respect of an alleged breach of a civil
penalty provision if—
(a) the
infringement penalty is—
(i)
paid within the time for payment stated in the notice;
and
(ii)
not withdrawn by the AER within the time for payment
stated in the notice in accordance with section 282; or
(b) the
infringement penalty is accepted in accordance with section 281.
The payment of an infringement penalty under this Part is not and must not be
taken to be an admission of a breach of a civil penalty provision or an
admission of liability for the purpose of any proceeding instituted in respect
of the breach.
(1) If the conduct of
a person constitutes a breach of 2 or more civil penalty provisions, an
infringement notice may be served on the person under this Part in relation to
the breach of any 1 or more of those provisions.
(2) However, the
person is not liable to pay more than 1 infringement penalty in respect of the
same conduct.
In this Part—
breach provision means an offence provision, a civil penalty provision or a
conduct provision.
(1) If a corporation
contravenes a breach provision, each officer of the corporation is to be taken
to have contravened the breach provision if the officer knowingly authorised
or permitted the contravention or breach.
(2) An officer of a
corporation may be proceeded against under a breach provision pursuant to this
section whether or not the corporation has been proceeded against under the
provision.
(3) Nothing in this
section affects the liability of a corporation for a contravention of a breach
provision.
If an officer or employee of a corporation commits an act, which is within the
scope of the actual or apparent authority of the officer or employee, that
would, if that act were committed by the corporation, constitute a breach of a
provision of this Law, the Regulations or the Rules, that corporation is to be
taken to have contravened that provision.
[Section 289 amended: see SA Act No. 37 of 2020 s.
70 and WA Gazette 4 Sep 2024 p. 2215.]
In this Chapter—
AEMC initiated Rule means a Rule of the kind referred to in section 295(2);
AEMC Rule review means a review conducted by the AEMC under Chapter 2 Part 2
Division 5;
gas market regulatory body means—
(a) the
AER;
(b) the
ERA;
(c)
VENCorp;
(d)
GMCo;
(e)
REMCo;
(f) a
person or body prescribed by Regulation to be a gas market regulatory body;
GMCo means the Gas Market Company Ltd (ACN 095 400 258);
market initiated proposed Rule means a request for a Rule made under section
295(1) in respect of which the AEMC publishes a notice under section 303;
more preferable Rule has the meaning given by section 296;
non-controversial Rule means a Rule that is unlikely to have a significant
effect on a market for gas or the regulation of pipeline services;
proposed Rule means—
(a) a
market initiated proposed Rule; or
(b) a
proposal for an AEMC initiated Rule; or
(c) a
proposed more preferable Rule;
publish means—
(a) in
relation to a notice required to be published under this Chapter (except
section 315)—publish in the South Australian Government Gazette and on
the AEMC's website;
(b) in
relation to a decision under section 301(2)—publish on the AEMC’s
website and make available at the offices of the AEMC;
(c) in
relation to a proposed Rule referred to in section 303 and any other documents
prescribed by the Regulations in relation to a proposed Rule referred to in
section 303—publish on the AEMC’s website and make available at
the offices of the AEMC;
(d) in
relation to a draft Rule determination or final Rule
determination—publish on the AEMC’s website and make available at
the offices of the AEMC;
(e) in
relation to any submissions or comments received by the AEMC under this
Chapter—subject to section 319, publish on the AEMC’s website and
make available at the offices of the AEMC;
(f) in
relation to a report prepared under section 320—publish on the
AEMC’s website and make available at the offices of the AEMC;
REMCo means the Retail Energy Market Company Ltd (ACN 103 318 556);
urgent Rule means a Rule relating to any matter or thing that, if not made as
a matter of urgency, will result in that matter or thing imminently
prejudicing or threatening the supply of gas.
[Section 290 modified: WA Act Sch. 1 cl. 12;
amended: see SA Act No. 3 of 2021 s. 52 and WA Gazette 22 Jan 2025 p. 63-4.]
(1) The AEMC may only
make a Rule if it is satisfied that the Rule will or is likely to contribute
to the achievement of the national gas objective.
(2) For the purposes
of subsection (1), the AEMC may give such weight to any aspect of the national
gas objective as it considers appropriate in all the circumstances, having
regard to any relevant MCE statement of policy principles.
In addition to complying with sections 291 and 293, the AEMC must take into
account the form of regulation factors and any other matter the AEMC considers
relevant—
(a) in
making a Rule that—
(i)
specifies a pipeline service as a reference service; or
(ii)
confers a function or power on the AER to specify under a
full access arrangement decision approving or making an access arrangement a
pipeline service (to which the relevant applicable access arrangement applies)
as a reference service; or
(b) in
revoking a Rule that has been made or is in force that—
(i)
specifies a pipeline service as a reference service; or
(ii)
confers a function or power on the AER to specify under a
full access arrangement decision approving or making an access arrangement a
pipeline service (to which the relevant applicable access arrangement applies)
as a reference service.
In addition to complying with sections 291 and 292, the AEMC must take into
account the revenue and pricing principles in making a Rule for or with
respect to any matter or thing specified in items 40 to 48 of Schedule 1 to
this Law.
(1) The National Gas
Rules that apply upon section 30 of the National Gas Access (WA) Act 2009
coming into operation are as set out in the document called the National Gas
Rules 2008, signed on 1 July 2008 by the Minister for Energy of South
Australia, as affected, if applicable, by any amendments made by the AEMC
under national gas legislation before the coming into operation of that
section.
(2) Subsection (1)
does not prevent the AEMC from making Rules under this Chapter that amend or
revoke the rules referred to in it.
[Section 294 inserted and modified: WA Act Sch. 1
cl. 13.]
(1) The South
Australian Minister may make Rules that revoke or amend a Rule if the
revocation or amendment is consequential on the enactment of the Statutes
Amendment (National Energy Laws) (Binding Rate of Return Instrument) Act 2018
.
(2) Without limiting
subsection (1)
, the South Australian Minister may make a rule providing that the rate of
return on capital under a rate of return instrument in force at the start of a
regulatory period applies throughout the period.
(3) Section 74(3)
applies to Rules made under this section in the same way it applies to Rules
made by the AEMC.
(4) As soon as
practicable after making Rules under this section, the South Australian
Minister must—
(a)
publish notice of the making of the Rules in the South Australian Government
Gazette; and
(b) make
the Rules publicly available.
(5) The notice
referred to in subsection (4)(a)
must state—
(a) the
date on which the Rules commence operation; and
(b) if
different Rules will commence operation on different dates, those dates.
(6) Rules may only be
made under this section on the recommendation of the MCE.
(7) Once the first
Rules have been made under subsection (1)
, no further Rules can be made under that subsection.
(8) In this
section—
regulatory period means the period specified in an applicable access
arrangement to be the regulatory period;
South Australian Minister means the Minister in right of the Crown of South
Australia administering Part 2 of the National Gas (South Australia) Act 2008
of South Australia.
[Section 294CA inserted: see SA Act No. 33 of 2018
s. 18 and WA Gazette 5 Apr 2019 p. 1007-8.]
(1) The Minister in
right of the Crown of South Australia administering Part 2 of the National
Gas (South Australia) Act 2008
of South Australia (the South Australian Minister ) may make Rules on any 1 or
more of the following subjects:
(a)
access proposals, access disputes and arbitrations under Chapter 6A;
(b) the
subject matter of a new head power added to Schedule 1 by the Pipelines
Access/Arbitration amendments;
(c) any
other subject contemplated by, or consequential on, the Pipelines
Access/Arbitration amendments.
(2) Rules may only be
made under subsection (1)
on the recommendation of the MCE.
(3) Section 74(3)
applies to Rules made under subsection (1)
in the same way as it applies to Rules made by the AEMC.
(4) As soon as
practicable after making Rules under subsection (1)
, the South Australian Minister must—
(a)
publish notice of the making of the Rules in the South Australian Government
Gazette stating the date of commencement or, if they commence at different
times, various dates of commencement; and
(b)
making the Rules publicly available.
(5) The South
Australian Minister may, by a later notice published in the South Australian
Government Gazette, vary a commencement date fixed under subsection (4)(a)
or this subsection.
(6) Once the first
Rules have been made under subsection (1)
, no further Rules can be made under that subsection.
(7) Rules in the
nature of a derogation may be made under this section even though no request
has been made for the derogation.
(8) In this
section—
Pipelines Access/Arbitration amendments means the amendments made to this Law
by the National Gas (South Australia) (Pipelines Access—Arbitration)
Amendment Act 2017 .
[Section 294F inserted: see SA Act No. 23 of 2017
s. 8 and WA Gazette 22 Dec 2017 p. 5984.]
(1) The South
Australian Minister may, within 9 months after the commencement of the
National Gas (South Australia) Law (South Australia) section 294FC —
(a) make
Rules for or with respect to any matter or thing necessary or expedient to
implement the amended objective; and
(b) make
Rules for or with respect to any other subject contemplated by, or necessary
or expedient for implementing, the amended objective; and
(c) make
Rules that revoke or amend a Rule as a consequence of —
(i)
the enactment of the Statutes Amendment (National Energy
Laws) (Emissions Reduction Objectives) Act 2023 (South Australia); or
(ii)
the amendment of this Law by virtue of the National Gas
Access (WA) Adoption of Amendments Order (No. 2) 2024 clause 3 (the adopting
clause ).
(2) Rules in the
nature of a derogation may be made under subsection (1)
even though there may not have been a request for a derogation.
(3) Section 74(3)
applies to the making of Rules under subsection (1)
as if the Rules being made under subsection (1)
were Rules being made by the AEMC.
(4) As soon as
practicable after making Rules under subsection (1)
, the South Australian Minister must—
(a)
publish notice of the making of the Rules in the South Australian Government
Gazette; and
(b) make
the Rules publicly available.
(5) The notice
referred to in subsection (4)(a)
must state—
(a) the
date on which the Rules commence operation; or
(b) if
different Rules will commence operation on different dates, those dates.
(6) The Rules made
under subsection (1)
may only be made on the recommendation of the MCE.
(7) If the South
Australian Minister makes Rules under subsection (1)
, the Minister cannot make another Rule under that subsection.
(8) In this
section—
amended objective means the national gas objective as in force on the coming
into operation of the adopting clause;
South Australian Minister means the Minister in right of the Crown of South
Australia administering the National Gas (South Australia) Act 2008 (South
Australia) Part 2.
[Section 294FC inserted: see SA Act 26 of 2023 s.
17 and WA Gazette 24 Jan 2024 p. 91-2; WA Act Sch. 1 cl. 13A.]
(1) The AEMC may make
a Rule at the request of any person or the MCE.
Note—
Section 74 and Schedule 1 to this Law specify the subject matter for Rules.
(2) The AEMC must not
make a Rule without a request under subsection (1) unless—
(a) it
considers the Rule corrects a minor error in the Rules; or
(b) it
considers the Rule involves a non-material change to the Rules; or
(c) the
Rule is in respect of any matter that is prescribed by the Regulations as a
matter on which it may make a Rule on its own initiative.
The AEMC may make a Rule that is different (including materially different)
from a market initiated proposed Rule (a more preferable Rule ) if the AEMC is
satisfied that, having regard to the issue or issues that were raised by the
market initiated proposed Rule (to which the more preferable Rule relates),
the more preferable Rule will or is likely to better contribute to the
achievement of the national gas objective.
(1) Despite section
295(2), the AEMC may, having regard to a request to make a Rule under section
295(1), make a Rule that is necessary or consequential to the Rule that is to
be made on that request.
(2) For the purposes
of this Chapter, the AEMC must treat a Rule it may make under subsection (1)
as if it were part of the Rule to be made on that request.
A request for the making of a Rule—
(a) must
contain the information prescribed by the Regulations; and
(b)
must, subject to section 299, be accompanied by the fee prescribed by the
Regulations (if any); and
(c) may
be accompanied by a draft of the Rule to be made.
The AEMC may waive the payment of any fee prescribed by the Regulations for
the purposes of section 298.
(1) If the AEMC
considers it necessary or desirable that 2 or more requests for the making of
a Rule should be dealt with together, the AEMC may—
(a)
treat those requests as 1 request for the purposes of this Chapter (a
consolidated Rule request ); or
(b)
treat any later request as a submission in relation to the earliest Rule
request.
(2) For the purposes
of this Chapter, the AEMC may treat a consolidated Rule request as being
received by it on the day it receives either the first or last of the Rule
requests forming part of the consolidated Rule request.
(1) Subject to this
Chapter, as soon as practicable after receiving a request for the making of a
Rule (an active request ), the AEMC must consider whether—
(a) the
active request appears to—
(i)
contain the information prescribed by the Regulations;
and
(ii)
not be misconceived or lacking in substance; and
(b) the
subject matter of the active request appears to be for or with respect to a
matter in respect of which the AEMC may make a Rule under this Law; and
Note—
Section 74 and Schedule 1 to this Law specify the subject matter for Rules.
(c) the
subject matter of the active request appears to relate to the subject matter
of—
(i)
a Rule made, or a request for the making of a Rule under
section 295(1) not proceeded with, in the 12 months immediately before the
date of receipt of the active request; or
(ii)
another request for the making of a Rule under section
295(1) in respect of which the AEMC is taking action under this Part.
(2) If the AEMC
considers that, having regard to the matters set out in subsection (1), it
should not take any action under this Part in respect of the active request,
the AEMC must make a decision to that effect and inform the person or body, in
writing, that requested the Rule of that decision.
(3) Despite subsection
(1) or (2), the AEMC may make a decision to the effect that it should not take
any action under this Part in respect of the active request if the person or
body that made the active request has not complied with a notice in accordance
with section 302.
(4) In making a
decision under subsection (3), the AEMC must have regard to any representation
it receives under section 302(4).
(5) A decision under
subsection (2) or (3) must—
(a) set
out the reasons for the decision; and
(b) be
given to the person or body that made the active request without delay; and
(c) in
the case where the decision was made only because of the matters set out in
subsection (1)(c)—be published.
(6) Subject to this
Chapter, if the AEMC considers that, having regard to the matters set out in
subsection (1), it should take action under this Part in respect of an active
request the AEMC must publish notice of that active request in accordance with
section 303.
(1) This section
applies if the AEMC—
(a)
receives a request for the making of a Rule under section 295(1); and
(b)
considers, having regard to the nature and content of the request, that
further information is required from the person or body that has made the
request to assist it to understand the request’s purpose or content.
(2) The AEMC may, by
notice in writing, request the person or body that made the request under
section 295(1) to provide the AEMC further information.
(3) A notice under
subsection (2) must specify—
(a) the
kind of information the AEMC requires from the person or body; and
(b) the
time within which that information must be provided to the AEMC.
(4) A person or body
given a notice under this section may make a written representation to the
AEMC as to why it cannot provide the information specified in the notice
within the time specified in the notice.
(1) This section
applies if the AEMC—
(a)
considers that it should take action under this Part in respect of a request
for the making of a Rule; or
(b)
forms an intention to make an AEMC initiated Rule.
(2) The AEMC must
publish—
(a)
notice of the request or intention (as the case requires); and
(b) a
draft of the proposed Rule; and
(c) any
other document prescribed by the Regulations.
(3) A notice published
under this section must—
(a)
invite written submissions and comments from any person or body in relation to
the proposed Rule by the date specified in the notice by the AEMC, being a
date that is not less than 4 weeks from the date the notice is published; and
(b)
contain any other information prescribed by the Regulations.
(4) Nothing in this
Part is to be taken as requiring the AEMC to publish notices under this
section in the same order as it—
(a)
considers that it should take action under this Part in respect of a request
for the making of a Rule; or
(b)
forms an intention to make an AEMC initiated Rule.
(1) Subject to this
section, if the AEMC considers that—
(a) an
AEMC initiated Rule is a non-controversial Rule; or
(b) a
request for a Rule is a request for a non-controversial Rule; or
(c) a
request for a Rule is a request for an urgent Rule,
the AEMC may make the relevant Rule in accordance with this Part (except
sections 307 to 310) and as if the period of time within which the final Rule
determination in respect of the relevant Rule must be published were 8 weeks
from the date of publication of the notice under section 303.
(2) Before making a
Rule as set out in subsection (1), the AEMC must include in a notice under
section 303 a statement to the effect that the AEMC may make the relevant Rule
if the AEMC does not receive a written request, and reasons, not to do so from
any person or body within 2 weeks of publication of that notice.
(3) The AEMC must not
make a Rule in accordance with this section if, following publication of a
notice under section 303 containing a statement to the effect set out in
subsection (2)—
(a) the
AEMC receives a written request not to do so; and
(b) the
reasons set out in that request are not, in its opinion, misconceived or
lacking in substance.
(4) If the AEMC is of
the opinion that the reasons given by a person or body in a written request
for it not to make the non-controversial Rule or urgent Rule are misconceived
or lacking in substance, the AEMC must—
(a) make
a decision to that effect; and
(b) give
the person or body its reasons, in writing, for that decision without delay.
(5) If the AEMC is of
the opinion that the reasons given by a person or body in a written request
for it not to make the non-controversial Rule or urgent Rule, are not
misconceived or lacking in substance, the AEMC must publish a notice to the
effect that it will make the relevant Rule in accordance with this Part (other
than this section).
[Section 304 amended: see SA Act No. 12 of 2018 s.
26 and WA SL 2020/195 cl. 3.]
(1) This section
applies if—
(a) a
gas market regulatory body has—
(i)
made a request for the making of a Rule under section
295(1); and
(ii)
consulted with the public on the nature and content of
the request before making that request; or
(b) a
person or the MCE has made a request for the making of a Rule under section
295(1) on the basis of—
(i)
a recommendation for the making of a Rule contained in a
MCE directed review; or
(ii)
a conclusion for the making of a Rule contained in an
AEMC Rule review.
(2) The AEMC may take
action under this Part in respect of the request without complying with
section 303(3)(a) or 307 if it is of the opinion that—
(a) in
the case where the request has been made by a gas market regulatory body in
the circumstances described in subsection (1)(a)—the consultation
conducted by the gas market regulatory body was adequate, having regard
to—
(i)
the nature and content of that request; and
(ii)
the kind of consultation conducted by the gas market
regulatory body;
(b) in
the case where a request has been made by a person or the MCE in the
circumstances described in subsection (1)(b)—
(i)
the request reflects, or is consistent with, the relevant
recommendation contained in the MCE directed review or relevant conclusion in
the AEMC Rule review (as the case requires); and
(ii)
there was adequate consultation with the public by it on
the content of the relevant recommendation or relevant conclusion during the
MCE directed review or AEMC Rule review (as the case requires).
(3) To avoid
doubt—
(a)
section 301 applies to a request for the making of a Rule to which this
section applies; and
(b)
section 306 does not apply to a request for the making of a Rule to which this
section applies.
Any person or body, within the period specified in a notice under section 303,
may make a written submission or comment in relation to the proposed Rule to
which the notice relates.
(1) The AEMC may (but
need not), at any time after publication of a notice under section 303 and
before making a draft Rule determination, hold a hearing in relation to any
proposed Rule.
(2) Notice of a
hearing held under this section must—
(a) be
published; and
(b)
contain the information prescribed by the Regulations (if any).
(1) The AEMC must make
a draft Rule determination before making a final Rule determination in
relation to the proposed Rule.
(2) Subject to this
Chapter, the AEMC must, within 10 weeks after the date specified in a notice
under section 303, publish—
(a) the
draft Rule determination; and
(b)
notice of the making of the draft Rule determination.
(3) In the case of a
proposed Rule to which section 305 applies, the AEMC must publish the draft
Rule determination and notice of the making of the draft Rule determination
within 5 weeks after the date notice under section 303(2) is published.
(4) A draft Rule
determination must contain—
(a) the
reasons of the AEMC as to whether or not it should make the proposed Rule,
including—
(i)
in the case where the proposed Rule is not a proposed
more preferable Rule, the reasons of the AEMC as to whether it is satisfied
the proposed Rule will or is likely to contribute to the achievement of the
national gas objective; and
(ii)
in the case of a proposed more preferable Rule, the
reasons of the AEMC as to whether it is satisfied the proposed more preferable
Rule will or is likely to better contribute to the achievement of the national
gas objective than the market initiated Rule request to which the more
preferable Rule relates; and
(iii)
if the AEMC is required to take into account the form of
regulation factors or the revenue and pricing principles, the reasons of the
AEMC taking those factors or principles (as the case requires) into account;
and
(iv)
the reasons of the AEMC having regard to any relevant MCE
statement of policy principles; and
(v)
the reasons of the AEMC having regard to any other
matters the AEMC considers relevant; and
(b) if
the AEMC determines to make a Rule, a draft of the Rule to be made; and
(c) any
other matters that are prescribed by the Regulations.
(5) A notice referred
to in subsection (2) must—
(a)
invite written submissions and comments from any person or body in relation to
the determination within a period specified by the AEMC, being a period not
less than 6 weeks from the date of publication of the notice; and
(b)
include a statement to the effect that any person or body may request, in
writing within 1 week after the publication of the notice, the AEMC to hold a
hearing in accordance with section 310; and
(c)
contain any other information prescribed by the Regulations.
Any person or body, within the period specified in a notice under section
308(1), may make a written submission or comment in relation to a draft Rule
determination to which the notice relates.
(1) The AEMC may (but
need not), at any time after publication of a notice under section 308(2) and
before making a final Rule determination, hold a hearing in relation to a
draft Rule determination.
(2) In addition, any
person or body may request, in writing, within 1 week after the publication of
a notice under section 308(2), the AEMC to hold a hearing in relation to a
draft Rule determination.
(3) Despite subsection
(2), the AEMC may decide not to a hold a hearing in relation to a draft Rule
determination.
(4) Without limiting
the reasons why the AEMC may decide not to a hold a hearing following a
request under subsection (2) in relation to a draft Rule determination, the
AEMC may decide not to hold a hearing if—
(a) the
person or body that requests the AEMC to hold a hearing does not make a
written submission or comment in accordance with section 309; and
(b) no
other person or body requests the AEMC to hold a hearing.
(5) If the AEMC
decides not to hold a hearing after a request under subsection (2), it must
give the person or body that requested the hearing its reasons, in writing,
for declining that person’s or body’s request.
(6) If the AEMC
decides to hold a hearing, or agrees to hold a hearing after a request under
subsection (2), the AEMC must—
(a)
appoint a date (being not later than 3 weeks after the date of publication of
the notice under section 308), time and place for the holding of the hearing;
and
(b)
publish a notice of that date, time and place.
(1) Subject to section
312, the AEMC must make a final Rule determination as to whether to make a
proposed Rule.
(2) Subject to this
Chapter, the AEMC must, within 6 weeks after the period for written
submissions or comments in relation to the draft Rule determination ends,
publish—
(a) the
final Rule determination; and
(b)
notice of the making of the final Rule determination.
(3) A final Rule
determination must contain—
(a) the
reasons of the AEMC as to whether or not it should make a Rule,
including—
(i)
in the case where the Rule to be made is not a more
preferable Rule, the reasons of the AEMC as to whether it is satisfied the
Rule will or is likely to contribute to the achievement of the national gas
objective; and
(ii)
in the case where the Rule to be made is a more
preferable Rule, the reasons of the AEMC as to whether it is satisfied the
more preferable Rule to be made will or is likely to better contribute to the
achievement of the national gas objective than the market initiated Rule
request to which the more preferable Rule relates; and
(iii)
if the AEMC is required to take into account the form of
regulation factors or the revenue and pricing principles, the reasons of the
AEMC taking those factors or principles (as the case requires) into account;
and
(iv)
the reasons of the AEMC having regard to any relevant MCE
statement of policy principles; and
(v)
the reasons of the AEMC having regard to any other
matters the AEMC considers relevant; and
(b) any
other matters that are prescribed by the Regulations.
(4) A notice referred
to in subsection (2) must contain the information prescribed by the
Regulations.
(1) This section
applies if the AEMC proposes to make a more preferable Rule.
(2) Without limiting
this Chapter, the AEMC may take action again under sections 308 to 310 in
respect of the proposed more preferable Rule before making a final Rule
determination in respect of that Rule.
(3) Sections 308 to
310 apply as if, in section 308(2), for “the date specified in a notice
under section 303” there were substituted “the date of the
previous draft Rule determination”.
(1) Subject to this
section, if the AEMC, in its final Rule determination, determines to make a
Rule, the AEMC must make the relevant Rule as soon as practicable after the
publication of the final Rule determination.
(2) Notice of the
making of the Rule must be published in the South Australian Government
Gazette as soon as practicable after the making of the Rule.
A Rule made under section 313 commences operation on the day the relevant
notice is published in the South Australian Government Gazette or on any day
after that day that is provided for in the relevant notice or the Rule.
On publication of a notice in accordance with section 313(2), the AEMC must,
without delay—
(a)
publish the Rule on its website; and
(b) make
copies of the Rule available to the public at its offices.
A document purporting to be a copy of—
(a) the
National Gas Rules; or
(b) the
initial National Gas Rules; or
(c) an
amendment to the initial National Gas Rules or the National Gas Rules,
endorsed with a certificate to which the seal of the AEMC has been duly
affixed certifying the document is such a copy, is evidence that the document
is such a copy.
(1) Despite anything
to the contrary in this Chapter and without limiting section 318, the AEMC
may, by notice, extend a period of time specified in Chapter 9 Part 3 if the
AEMC considers that a request for a Rule raises issues of sufficient
complexity or difficulty or there is a material change in circumstances such
that it is necessary that the relevant period of time specified in Chapter 9
Part 3 be extended.
(2) A notice under
subsection (1) must—
(a) be
published; and
(b) set
out the period of time specified in Chapter 9 Part 3 to be extended; and
(c)
specify a new period of time to apply in the place of the period of time
specified in Chapter 9 Part 3.
(3) A notice under
subsection (1) may be published at the same time as a notice under section
303.
(4) The AEMC may only
extend a period of time under this section before the expiry of that time.
(1) This section
applies if—
(a) a
person or body raises an issue in—
(i)
a submission or comment in relation to a draft Rule
determination; or
(ii)
a hearing held under section 307 or 310; and
(b) the
AEMC considers the issue raised by the person or body requires further public
consultation in relation to the proposed Rule or draft Rule determination.
(2) Despite anything
to the contrary in this Chapter and without limiting section 317, the AEMC
may, by notice, extend the period of time specified in section 311 within
which it must make a final Rule determination.
(3) A notice under
subsection (2) must—
(a) be
published; and
(b)
specify a new period of time to apply in the place of the period of time
specified in section 311; and
(c)
specify the issue on which the AEMC requires further public submissions and
comments; and
(d)
invite written submissions and comments from any person or body by the date
specified in the notice.
(4) The new period of
time must not have the effect of extending the relevant period of the time
specified in section 311 by more than 4 weeks.
(5) The AEMC may only
extend the period of time under this section before the expiry of time
specified in section 311.
(6) Any person or
body, within the period specified in a notice under subsection (2), may make a
written submission or comment in relation to the issue specified in the
notice.
(1) Subject to this
section, the AEMC may publish any information in any written submission or
comment given to it under this Chapter unless—
(a) the
person or body who gave the information, claims, when giving it to the AEMC,
that it contains confidential information; and
(b) the
AEMC decides that the written submission or comment contains confidential
information.
(2) A written
submission or comment given to the AEMC under this Chapter that has been
claimed under this section to contain confidential information, and that the
AEMC has decided contains confidential information, may be published if that
information is omitted.
(3) If information is
omitted from a published written submission or comment given to the AEMC under
this Chapter as being confidential information, a note to that effect must be
included in the submission or comment at the place in the submission or
comment from which the information is omitted.
Note—
See also section 71 of this Law and section 24 of the
Australian Energy Market Commission Establishment Act 2004 of South Australia.
(1) This section
applies if the AEMC—
(a)
publishes a notice under section 303 in respect of a request for the making of
a Rule; but
(b) does
not make a final Rule determination in respect of that request within 12
months after the publication of that notice (the report trigger date ).
(2) The AEMC must
prepare a report on the request as soon as practicable after the report
trigger date.
(3) A report prepared
under this section—
(a) must
contain the reasons why the final Rule determination has not been made within
12 months after the publication of the notice under section 303; and
(b) must
specify when the AEMC considers it will make the final Rule determination; and
(c) must
be published.
(1) An applicable
access arrangement must not have the effect of depriving a person of a
relevant protected contractual right.
(2) In this
section—
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) in
the case of an applicable access arrangement approved under an applicable
arrangement decision—a right under a contract (other than a relevant
exclusivity right) in force immediately before that access arrangement was
submitted for approval under this Law;
(b) in
the case of an applicable access arrangement made under an applicable
arrangement decision because—
(i)
a full access arrangement was not submitted for approval
as required under section 132—a right under a contract (other than a
relevant exclusivity right) in force immediately before the date on which an
access arrangement was required to be submitted for approval;
(ii)
an access arrangement was not approved under an
applicable arrangement decision—a right under a contract (other than a
relevant exclusivity right) in force immediately before the date on which that
access arrangement was submitted for approval.
Subject to section 135, nothing in this Law is to be taken as preventing a
service provider from entering into an agreement with a user or a prospective
user about access to a pipeline service provided by means of a scheme pipeline
that is different from an applicable access arrangement that applies to that
pipeline service.
An applicable access arrangement applies to a pipeline service provided, or to
be provided, by means of a pipeline regardless of who provides that pipeline
service.
The AER is authorised to disclose information given to it in confidence in, or
in connection with, the performance or exercise of its functions or powers
under this Law or the Rules subject to and in accordance with—
(a) this
Division; or
(b)
section 205.
Note—
See also section 30 of this Law and section 44AAF of the Trade Practices Act
1974 of the Commonwealth.
The AER is authorised to disclose information given to it in confidence if the
AER has the written consent to do so of—
(a) the
person who gave the information; or
(b) the
person from whom the person referred to in paragraph (a) received that
information.
The AER is authorised to disclose information given to it in confidence—
(a) for
the purposes of civil or criminal proceedings; or
(b) for
the purposes of a proceeding before the Tribunal or a tribunal established by
or under a law of this jurisdiction or another participating jurisdiction; or
(c) for
the purposes of according natural justice to a person affected by a decision
(however described) of the AER under this Law or the Rules.
(1) This section
applies if—
(a) in
compliance with this Law or the Rules or voluntarily, a person gives the AER
information in confidence; and
(b) that
information is contained in a document with other information.
(2) The AER may
disclose the document with the information given in confidence omitted.
(3) The AER must
include a note at the place in the document from which the information given
in confidence is omitted to the effect that that information has been omitted
from the document.
The AER is authorised to disclose information given to it in confidence, in
compliance with this Law or the Rules or voluntarily, if—
(a) it
does not disclose any elements of the information that could lead to the
identification of the person to whom that information relates; or
(b) the
manner in which it discloses the information does not identify the person to
whom that information relates.
Example—
Information disclosed under this section may be combined or arranged with
other information provided that the manner in which that information is
combined or arranged will not lead to the identification of the person to whom
the information relates.
(1) Despite section
327 or 328 but subject to this section, the AER is authorised to disclose
information given to it in confidence 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.
(2) Before disclosing
the information, 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 the information 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 the representations, 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 (2) or (3).
(8) In this
section—
restricted period means a period of 5 business days after—
(a) an
initial disclosure notice has been given under this section; or
(b) a
further disclosure notice has been given under this section,
whichever is the later.
In this Division—
relevant decision maker means—
(a) a
relevant Minister;
(b) the
Commonwealth Minister in the case of decisions relating to applications for
price regulation exemptions;
(c) the
NCC;
(d) the
AEMC;
scheme decision means—
(a) in
relation to a relevant Minister or the Commonwealth Minister, a Ministerial
coverage decision;
(b) in
relation to the NCC, an NCC recommendation or decision;
(c) in
relation to the AEMC, a report published under Division 4 or Division 5 of
Chapter 2 Part 2;
scheme procedure means—
(a) in
the case of a relevant Minister or the Commonwealth Minister, the procedure to
be followed by the relevant Minister or Commonwealth Minister under this Law
for the purpose of making a Ministerial coverage decision;
(b) in
the case of the NCC, the procedure to be followed by the NCC under this Law
and the Rules for the purpose of making an NCC recommendation or decision;
(c) in
the case of the AEMC, an MCE directed review or a review conducted by the AEMC
under section 83.
(1) Information
provided to a relevant decision maker for the purposes of a scheme procedure
is confidential information for the purposes of that procedure if—
(a) the
person who provides it claims, when providing it to the relevant decision
maker, that it is confidential information; and
(b) the
relevant decision maker decides that the information is confidential
information.
(2) However, subject
to this section, nothing prevents the disclosure of confidential information
by the relevant decision maker (the principal decision maker ) in a scheme
decision or to another relevant decision maker or the MCE, but the principal
decision maker must ensure that the information is identified as such—
(a) in
the scheme decision; or
(b) when
the principal decision maker discloses that information to another relevant
decision maker or MCE.
(3) In the case of
where the AEMC publishes a report under Division 4 or Division 5 of Chapter 2
Part 2, nothing prevents the disclosure of confidential information in a
report to the MCE or a Minister of a participating jurisdiction, but the AEMC
must ensure that the information is identified as such in the report.
(4) If the AEMC
decides that information provided to it for the purposes of a MCE directed
review or a review conducted by the AEMC under section 83, is confidential
information, the AEMC, the MCE or a Minister of a participating jurisdiction
may only publish a version of the report from which the information has been
omitted.
(5) If the NCC decides
that information provided to it for the purposes of an NCC recommendation or
decision is confidential information, the NCC and the relevant Minister may
only publish a version of (as the case requires) an NCC recommendation or
decision or Ministerial coverage decision from which the information has been
omitted.
(6) If information is
omitted from a published version of a scheme decision as being confidential
information, a note to that effect must be included in the decision at the
place in the decision from which the information is omitted.
Note—
In relation to the AEMC, see section 71 of this Law and section 24 of the
Australian Energy Market Commission Establishment Act 2004 of South
Australia.
(1) A decision
(however described) made under this Law or the Rules by a regulatory scheme
decision maker after the expiry of the period of time specified by this Law or
Rules for the making of that decision is not to be taken to be an invalid
decision only because the decision is not made within the specified period of
time.
(2) A decision to
which subsection (1) applies takes effect on and from—
(a) the
day it is made; or
(b) if
it specifies a date for operation or effect that is after the day it is made,
that specified date.
(3) In this
section—
regulatory scheme decision maker means—
(a) a
relevant Minister;
(b) the
Commonwealth Minister in the case of decisions relating to price regulation
exemptions;
(c) the
NCC;
(d) the
AER;
(e) the
AEMC;
(f) the
Bulletin Board operator.
(1) A person who has
made an application for a Ministerial or NCC scheme decision may withdraw the
application at any time before the Ministerial or NCC scheme decision is made.
(2) A withdrawal of an
application in accordance with this section must be—
(a) in
writing; and
(b)
given to, as the case requires, the relevant Minister, Commonwealth Minister
or the NCC.
(3) In this
section—
Ministerial or NCC scheme decision means—
(a) a
decision of a relevant Minister under section 99, 106 or 156; or
(b) a
decision of the Commonwealth Minister under section 164; or
(c) a
reclassification decision; or
(d) a
decision of the NCC relating to the making or revoking of a light regulation
determination under Chapter 3 Part 2.
If the NCC receives an application for a coverage determination, a 15-year
no-coverage determination, a coverage revocation determination or a
reclassification decision, it must, without delay, notify the Ministers of the
participating jurisdictions of receipt of the application.
(1) A relevant
Minister may request the NCC, in writing, to give to him or her information or
assistance that the Minister may require for the purpose of making—
(a) a
coverage determination; or
(b) a
15-year no-coverage determination; or
(c) a
coverage revocation determination.
(2) The NCC must
comply with a request.
If an individual has a privilege against self-exposure to a penalty, other
than for a criminal offence, the individual is not excused from doing any of
the following on that ground:
(a)
providing information under this Law, the Regulations or the Rules;
(b)
producing a document under this Law, the Regulations or the Rules;
(c)
providing evidence under this Law, the Regulations or the Rules;
(d)
answering a question under this Law, the Regulations or the Rules.
[Section 335A inserted: see SA Act No. 37 of 2020
s. 71 and WA Gazette 4 Sep 2024 p. 2215.]
If in any proceedings under this Law in which a person, other than a body
corporate, may be liable for an offence or a civil penalty it appears to the
Court that the person acted honestly and reasonably and, having regard to all
the circumstances of the case, ought fairly to be excused, the Court may
relieve the person either wholly or partly from liability on such terms as the
Court thinks fit.
[Section 335B inserted: see SA Act No. 37 of 2020
s. 71 and WA Gazette 4 Sep 2024 p. 2215.]
Schedule 3 to this Law has effect.