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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
National Gas (South Australia)
Bill 2008
A BILL FOR
An Act to establish a framework to enable third parties to gain access to
certain natural gas pipeline services; to repeal the Gas Pipelines Access
(South Australia) Act 1997; to amend the Australian Energy Market
Commission Establishment Act 2004; and for other purposes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Interpretation
4 Crown to be
bound
5 Application to coastal waters
6 Extra-territorial
operation
Part 2—National Gas (South Australia) Law and
National Gas (South Australia) Regulations
7 Application of
National Gas Law
8 Application of regulations under National Gas
Law
9 Interpretation of some expressions in National Gas (South Australia)
Law and National Gas (South Australia) Regulations
Part 3—Making of regulations and rules under National
Gas Law
10 Definitions
11 General regulation-making power for
National Gas Law
12 Specific regulation-making power
13 Making of
rules
Part 4—Cross vesting of powers
14 Conferral
of powers on Commonwealth Minister and Commonwealth bodies to act in this
State
15 Conferral of powers on Ministers of participating States and
Territories to act in this State
16 Conferral of functions or powers on State
Minister
Part 5—General
17 Exemption from
taxes
18 Actions in relation to cross boundary pipelines
19 Conferral of
functions and powers on Commonwealth bodies
Part 6—Repeal of Gas Pipelines Access (South
Australia) Act 1997
20 Repeal of Gas Pipelines Access
(South Australia) Act 1997
Part 7—Amendment of this Act when Offshore
Petroleum Act 2006 commences
21 Amendment of this Act when
Offshore Petroleum Act 2006 commences
Part 8—Amendment of Australian Energy Market
Commission Establishment Act 2004
22 Amendment of
Australian Energy Market Commission Establishment Act 2004
Schedule—National Gas Law
Chapter 1—Preliminary
Part 1—Citation and
interpretation
1 Citation
2 Definitions
3 Meaning
of civil penalty provision
4 Meaning of conduct
provision
5 Meaning of prospective
user
6 Meaning of regulatory obligation or
requirement
7 Meaning of regulatory
payment
8 Meaning of service
provider
9 Passive owners of scheme pipelines deemed to
provide or intend to provide pipeline
services
10 Things done by 1 service provider to be
treated as being done by all of service provider
group
11 Local agents of foreign service
providers
12 Commissioning of a
pipeline
13 Pipeline classification
criterion
14 Jurisdictional determination
criteria—cross boundary distribution
pipelines
15 Pipeline coverage
criteria
16 Form of regulation
factors
17 Effect of separate and consolidated access
arrangements in certain cases
18 Certain extensions to,
or expansion of the capacity of, pipelines to be taken to be part of a covered
pipeline
19 Expansions of and extensions to covered
pipeline by which light regulation services are
provided
20 Interpretation generally
Part 2—Participating jurisdictions
21 Participating
jurisdictions
22 Ministers of participating
jurisdictions
Part 3—National gas objective and principles
Division 1—National gas objective
23 National gas
objective
Division 2—Revenue and pricing
principles
24 Revenue and pricing principles
Division 3—MCE policy principles
25 MCE statements
of policy principles
Part 4—Operation and effect of National Gas
Rules
26 National Gas Rules to have force of
law
Chapter 2—Functions and powers of gas market
regulatory entities
Part 1—Functions and powers of the Australian Energy
Regulator
Division 1—General
27 Functions and powers of the
AER
28 Manner in which AER must perform or exercise AER
economic regulatory functions or
powers
29 Delegations
30 Confidentiality
Division 2—Search
warrants
31 Definitions
32 Authorised
person
33 Identity
cards
34 Return of identity
cards
35 Search
warrant
36 Announcement of entry and details of warrant
to be given to occupier or other person at
premises
37 Immediate entry permitted in certain
cases
38 Copies of seized
documents
39 Retention and return of seized documents
or things
40 Extension of period of retention of
documents or things seized
41 Obstruction of persons
authorised to enter
Division 3—General information gathering
powers
42 Power to obtain information and documents in
relation to performance and exercise of functions and powers
Division 4—Regulatory information notices and general regulatory
information orders
Subdivision
1—Interpretation
43 Definitions
44 Meaning
of contributing service
45 Meaning of general
regulatory information order
46 Meaning of regulatory
information notice
47 Division does not limit operation
of information gathering powers under Division 3
Subdivision 2—Serving and making of regulatory information
instruments
48 Service and making of regulatory information
instrument
49 Additional matters to be considered for
related provider regulatory information
instruments
50 AER must consult before publishing a
general regulatory information order
51 Publication
requirements for general regulatory information
orders
52 Opportunity to be heard before regulatory
information notice is served
Subdivision 3—Form and content of regulatory information
instruments
53 Form and content of regulatory information
instrument
54 Further provision about the information
that may be described in a regulatory information
instrument
55 Further provision about manner in which
information must be provided to AER or kept
Subdivision 4—Compliance with regulatory information
instruments
56 Compliance with regulatory information notice
that is served
57 Compliance with general regulatory
information order
58 Exemptions from compliance with
general regulatory information order
59 Assumptions
where there is non-compliance with regulatory information
instrument
Subdivision 5—General
60 Providing to AER false and
misleading information
61 Person cannot rely on duty of
confidence to avoid compliance with regulatory information
instrument
62 Legal professional privilege not
affected
63 Protection against
self-incrimination
Division 5—Service provider performance
reports
64 Preparation of service provider performance
reports
Division 6—Miscellaneous matters
65 Consideration
by the AER of submissions or comments made to it under this Law or the
Rules
66 Use of information provided under a notice
under Division 3 or a regulatory information
instrument
67 AER to inform certain persons of
decisions not to investigate breaches, institute proceedings or serve
infringement notices
68 AER enforcement
guidelines
Part 2—Functions and powers of the Australian Energy Market
Commission
Division 1—General
69 Functions and powers of the
AEMC
70 Delegations
71 Confidentiality
72 AEMC
must have regard to national gas objective
73 AEMC must
have regard to MCE statements of policy principles in relation to Rule making
and reviews
Division 2—Rule making functions and powers of the
AEMC
74 Subject matter for National Gas
Rules
75 Rules relating to MCE or Ministers of
participating jurisdictions require MCE consent
76 AEMC
must not make Rules that create criminal offences or impose civil penalties for
breaches
77 Documents etc applied, adopted and
incorporated by Rules to be publicly available
Division 3—Committees, panels and working groups of the
AEMC
78 Establishment of committees, panels and working
groups
Division 4—MCE directed reviews
79 MCE
directions
80 Terms of
reference
81 Notice of MCE directed
review
82 Conduct of MCE directed
review
Division 5—Other reviews
83 Rule reviews by the
AEMC
Division 6—Miscellaneous matters
84 AEMC must
publish and make available up to date versions of
Rules
85 Fees
86 Immunity from
personal liability of AEMC officials
Part 3—Functions and powers of Ministers of participating
jurisdictions
87 Functions and powers of Minister of this
participating jurisdiction under this Law
88 Functions
and powers of Commonwealth Minister under this Law
Part 4—Functions and powers of the NCC
89 Functions
and powers of NCC under this
Law
90 Confidentiality
Part 5—Functions and powers of
Tribunal
91 Functions and powers of Tribunal under this
Law
Chapter 3—Coverage and classification of
pipelines
Part 1—Coverage of pipelines
Division 1—Coverage determinations
92 Application
for recommendation that a pipeline be a covered
pipeline
93 Application to be dealt with in accordance
with the Rules
94 NCC may defer consideration of
application in certain cases
95 NCC coverage
recommendation
96 NCC must not make coverage
recommendation if tender approval decision becomes
irrevocable
97 Principles governing the making of a
coverage recommendation
98 Initial classification
decision to be made as part of
recommendation
99 Relevant Minister's determination on
application
100 Principles governing the making of a
coverage determination or decision not to do
so
101 Operation and effect of coverage
determination
Division 2—Coverage revocation
determinations
102 Application for a determination that a
pipeline no longer be a covered
pipeline
103 Application to be dealt with in accordance
with the Rules
104 NCC coverage revocation
recommendation
105 Principles governing the making of a
coverage revocation recommendation
106 Relevant
Minister's determination on application
107 Principles
governing the making of a coverage revocation determination or decision not to
do so
108 Operation and effect of coverage revocation
determination
Part 2—Light regulation of covered pipeline services
Division 1—Making of light regulation determinations
Subdivision 1—Decisions when pipeline is not a covered
pipeline
109 Application of
Subdivision
110 NCC's decision on light regulation of
pipeline services
Subdivision 2—Decisions when pipeline is a covered
pipeline
111 Application of
Subdivision
112 Application
113 Application
to be dealt with in accordance with the Rules
114 NCC's
decision on light regulation of pipeline services
Subdivision 3—Operation and effect of light regulation
determinations
115 When light regulation determinations take
effect
116 Submission of limited access arrangement for
light regulation services
Division 2—Revocation of light regulation determinations
Subdivision 1—On advice from service
providers
117 Advice by service provider that light regulation
services should cease to be light regulation services
Subdivision 2—On application by persons other than service
providers
118 Application (other than by service provider) for
revocation of light regulation
determinations
119 Decisions on applications made
around time of applications for coverage revocation
determinations
120 NCC decision on application where no
application for a coverage revocation
recommendation
121 Operation and effect of decision of
NCC under this Division
Division 3—Principles governing light regulation
determinations
122 Principles governing the making or revoking
of light regulation determinations
Division 4—Revocation if coverage determination not
made
123 Light regulation determination revoked if coverage
determination not made
Division 5—Effect of pipeline ceasing to be covered
pipeline
124 Light regulation services cease to be such
services on cessation of coverage of pipeline
Division 6—AER reviews into designated
pipelines
125 AER reviews
Part 3—Coverage of pipelines the subject of tender
process
126 Tender approval pipelines deemed to be covered
pipelines
Part 4—Coverage following approval of voluntary access
arrangement
127 Certain pipelines become covered pipelines on
approval of voluntary access arrangement
Part 5—Reclassification of pipelines
128 Service
provider may apply for reclassification of
pipeline
129 Reclassification
decision
130 Effect of reclassification
decision
Chapter 4—General requirements for provision of
covered pipeline services
Part 1—General duties for provision of pipeline services by covered
pipelines
131 Service provider must be legal entity of a
specified kind to provide pipeline services by covered
pipeline
132 Submission of full access arrangement or
revisions to applicable full access
arrangements
133 Preventing or hindering
access
134 Supply and haulage of natural
gas
135 Covered pipeline service provider must comply
with queuing requirements
136 Covered pipeline service
provider providing light regulation services must not price
discriminate
Part 2—Structural and operational separation requirements (ring
fencing)
Division
1—Interpretation
137 Definitions
138 Meaning
of marketing staff
Division 2—Minimum ring fencing
requirements
139 Carrying on of related businesses
prohibited
140 Marketing staff and the taking part in
related businesses
141 Accounts that must be prepared,
maintained and kept
Division 3—Additional ring fencing
requirements
142 Division does not limit operation of Division
2
143 AER ring fencing
determinations
144 AER to have regard to likely
compliance costs of additional ring fencing
requirements
145 Types of ring fencing requirements
that may be specified in an AER ring fencing determination
Division 4—AER ring fencing
exemptions
146 Exemptions from minimum ring fencing
requirements
Division 5—Associate contracts
147 Service provider
must not enter into or give effect to associate contracts that have
anti-competitive effect
148 Service provider must not
enter into or give effect to associate contracts inconsistent with competitive
parity rule
Chapter 5—Greenfields pipeline
incentives
Part
1—Interpretation
149 Definitions
150 International
pipeline to be a transmission pipeline for purposes of Chapter
Part 2—15-year no-coverage
determinations
151 Application for 15-year no-coverage
determination for proposed pipeline
152 Application to
be dealt with in accordance with the
Rules
153 No-coverage
recommendation
154 Principles governing the making of a
no-coverage recommendation
155 Initial classification
decision to be made as part of
recommendation
156 Relevant Minister's determination on
application
157 Principles governing the making of a
15-year no-coverage determination or decision not to do
so
158 Effect of 15-year no-coverage
determination
159 Consequences of Minister deciding
against making 15-year no-coverage determination for international
pipeline
Part 3—Price regulation exemptions
Division 1—Application for price regulation
exemption
160 Application for price regulation
exemption
Division 2—Recommendations by NCC
161 Application
to be dealt with in accordance with the Rules
162 NCC's
recommendation
163 General principle governing NCC's
recommendation
Division 3—Making and effect of price regulation
exemption
164 Making of price regulation
exemption
165 Principles governing the making of a
price regulation exemption
166 Conditions applying to a
price regulation exemption
167 Effect of price
regulation exemption
Division 4—Limited access arrangements
168 Limited
access arrangements for pipeline services provided by international pipeline to
which a price regulation exemption applies
Division 5—Other matters
169 Other obligations to
which service provider is subject
170 Service provider
must not price discriminate in providing international pipeline
services
Part 4—Extended or modified application of greenfields pipeline
incentive
171 Requirement for conformity between pipeline
description and pipeline as constructed
172 Power of
relevant Minister to amend pipeline description
Part 5—Early termination of greenfields pipeline
incentive
173 Greenfields pipeline incentive may
lapse
174 Revocation by
consent
175 Revocation for
misrepresentation
176 Revocation for breach of
condition to which a price regulation exemption is
subject
177 Exhaustive provision for termination of
greenfields pipeline incentive
Chapter 6—Access disputes
Part 1—Interpretation and
application
178 Definitions
179 Chapter
does not limit how disputes about access may be raised or dealt
with
180 No price or revenue regulation for access
disputes relating to international pipeline services
Part 2—Notification of access
dispute
181 Notification of access
dispute
182 Withdrawal of
notification
183 Parties to an access
dispute
Part 3—Access determinations
184 Determination of
access dispute
185 Dispute resolution body may require
parties to mediate, conciliate or engage in an alternative dispute resolution
process
186 Dispute resolution body may terminate
access dispute in certain cases
187 No access
determination if dispute resolution body considers there is genuine
competition
188 Restrictions on access
determinations
189 Access determination must give
effect to applicable access arrangement
190 Access
determinations and past contributions of capital to fund installations or the
construction of new facilities
191 Rules may allow
determination that varies applicable access arrangement for installation of a
new facility
192 Access determinations need not require
the provision of a pipeline service
193 Content of
access determinations
Part 4—Variation of access
determinations
194 Variation of access
determination
Part 5—Compliance with access
determinations
195 Compliance with access
determination
Part 6—Access dispute hearing procedure
196 Hearing
to be in private
197 Right to
representation
198 Procedure of dispute resolution
body
199 Particular powers of dispute resolution body
in a hearing
200 Disclosure of
information
201 Power to take evidence on oath or
affirmation
202 Failing to attend as a
witness
203 Failing to answer questions
etc
204 Intimidation
etc
205 Party may request dispute resolution body to
treat material as
confidential
206 Costs
207 Outstanding
costs are a debt due to party awarded the costs
Part 7—Joint access dispute
hearings
208 Definition
209 Joint
dispute hearing
210 Consulting the
parties
211 Constitution and procedure of dispute
resolution body for joint dispute hearings
212 Record
of proceedings etc
Part 8—Miscellaneous matters
213 Correction of
access determinations for clerical mistakes
etc
214 Reservation of capacity during an access
dispute
215 Subsequent service providers bound by
access determinations
216 Regulations about the costs
to be paid by parties to access dispute
Chapter 7—The Natural Gas Services Bulletin
Board
Part 1—The Bulletin Board Operator
217 The Bulletin
Board operator
218 Obligation to establish and maintain
the Natural Gas Services Bulletin Board
219 Other
functions of the Bulletin Board operator
220 Powers of
the Bulletin Board operator
221 Immunity of the
Bulletin Board operator
222 Fees for services
provided
Part 2—Bulletin Board information
223 Obligation to
give information to the Bulletin Board
operator
224 Person cannot rely on duty of confidence
to avoid compliance with obligation
225 Giving to
Bulletin Board operator false and misleading
information
226 Immunity of persons giving information
to the Bulletin Board operator
Part 3—Protection of information
227 Protection of
information by the Bulletin Board
operator
228 Protection of information by employees etc
of the Bulletin Board operator
Chapter 8—Proceedings under the National Gas
Law
Part 1—Proceedings generally
229 Instituting civil
proceedings under this Law
230 Time limit within which
proceedings may be instituted
Part 2—Proceedings for breaches of this Law, Regulations or the
Rules
231 AER proceedings for breaches of this Law,
Regulations or the Rules that are not
offences
232 Proceedings for declaration that a person
is in breach of a conduct provision
233 Actions for
damages by persons for breach of conduct provision
Part 3—Matters relating to breaches of this Law, the Regulations or
the Rules
234 Matters for which there must be regard in
determining amount of civil penalty
235 Breach of a
civil penalty provision is not an offence
236 Breaches
of civil penalty provisions involving continuing
failure
237 Conduct in breach of more than 1 civil
penalty provision
238 Persons involved in breach of
civil penalty provision or conduct
provision
239 Attempt to breach a civil penalty
provision
240 Civil penalties payable to the
Commonwealth
Part 4—Judicial review of decisions under this Law, the Regulations
and the
Rules
241 Definition
242 Applications
for judicial review of decisions of the
AEMC
243 Applications for judicial review of decisions
of the Bulletin Board operator
Part 5—Merits review and other non-judicial review
Division
1—Interpretation
244 Definitions
Division 2—Merits review for reviewable regulatory
decisions
245 Applications for
review
246 Grounds for
review
247 By when an application must be
made
248 Tribunal must not grant leave unless serious
issue to be heard and determined
249 Leave must be
refused if application is about an error relating to revenue amounts below
specified threshold
250 Tribunal must refuse to grant
leave if submission not made or is made
late
251 Tribunal may refuse to grant leave to service
provider in certain cases
252 Effect of application on
operation of reviewable regulatory
decisions
253 Intervention by others in a review
without leave
254 Leave for reviewable regulatory
decision process participants
255 Leave for user or
consumer intervener
256 Interveners may raise new
grounds for review
257 Parties to a review under this
Division
258 Matters that parties to a review may and
may not raise in a review
259 Tribunal must make
determination
260 Target time limit for Tribunal for
making a determination under this Division
261 Matters
to be considered by Tribunal in making
determination
262 Assistance from NCC in certain
cases
Division 3—Tribunal review of AER information disclosure decisions
under section 329
263 Application for
review
264 Exclusion of public in certain
cases
265 Determination in the
review
266 Tribunal must be taken to have affirmed
decision if decision not made within
time
267 Assistance from the AER in certain
cases
Division 4—General
268 Costs in a
review
269 Amount of
costs
270 Review of Part
Part 6—Enforcement of access
determinations
271 Enforcement of access
determinations
272 Consent
injunctions
273 Interim
injunctions
274 Factors relevant to granting a
restraining injunction
275 Factors relevant to granting
a mandatory injunction
276 Discharge or variation of
injunction or other order
Part 7—Infringement notices
277 Power to serve
notice
278 Form of
notice
279 Infringement
penalty
280 AER cannot institute proceedings while
infringement notice on foot
281 Late payment of
penalty
282 Withdrawal of
notice
283 Refund of infringement
penalty
284 Payment expiates breach of civil penalty
provision
285 Payment not to have certain
consequences
286 Conduct in breach of more than 1 civil
penalty provision
Part 8—Further provision for corporate liability for breaches of this
Law etc
287 Definition
288 Offences
and breaches by corporations
289 Corporations also in
breach if officers and employees are in breach
Chapter 9—The making of the National Gas
Rules
Part 1—General
Division
1—Interpretation
290 Definitions
Division 2—Rule making tests
291 Application of
national gas objective
292 AEMC must take into account
form of regulation factors in certain cases
293 AEMC
must take into account revenue and pricing principles in certain
cases
Part 2—Initial National Gas Rules
294 South
Australian Minister to make initial National Gas Rules
Part 3—Procedure for the making of a Rule by the
AEMC
295 Initiation of making of a
Rule
296 AEMC may make more preferable Rule in certain
cases
297 AEMC may make Rules that are consequential to
a Rule request
298 Content of requests for a
Rule
299 Waiver of fee for Rule
requests
300 Consolidation of 2 or more Rule
requests
301 Initial consideration of request for
Rule
302 AEMC may request further information from Rule
proponent in certain cases
303 Notice of proposed
Rule
304 Publication of non-controversial or urgent
final Rule determination
305 "Fast track" Rules where
previous public consultation by gas market regulatory body or an AEMC
review
306 Right to make written submissions and
comments
307 AEMC may hold public hearings before draft
Rule determination
308 Draft Rule
determination
309 Right to make written submissions and
comments in relation to draft Rule
determination
310 Pre-final Rule determination hearing
may be held
311 Final Rule
determination
312 Further draft Rule determination may
be made where proposed Rule is a proposed more preferable
Rule
313 Making of
Rule
314 Operation and commencement of
Rule
315 Rule that is made to be published on website
and made available to the public
316 Evidence of the
National Gas Rules
Part 4—Miscellaneous provisions relating to rule making by the
AEMC
317 Extension of periods of time in Rule making
procedure
318 AEMC may extend period of time for making
of final Rule determination for further
consultation
319 AEMC may publish written submissions
and comments unless confidential
320 AEMC must publicly
report on Rules not made within 12 months of public notification of
requests
Chapter 10—General
Part 1—Provisions relating to applicable access
arrangements
321 Protection of certain pre-existing
contractual rights
322 Service provider may enter into
agreement for access different from applicable access
arrangement
323 Applicable access arrangements continue
to apply regardless of who provides pipeline service
Part 2—Handling of confidential information
Division 1—Disclosure of confidential information held by
AER
324 Authorised disclosure of information given to the AER
in confidence
325 Disclosure with prior written consent
is authorised
326 Disclosure for purposes of court and
tribunal proceedings and to accord natural
justice
327 Disclosure of information given to the AER
with confidential information omitted
328 Disclosure of
information given in confidence does not identify
anyone
329 Disclosure of confidential information
authorised if detriment does not outweigh public benefit
Division 2—Disclosure of confidential information held by relevant
Ministers, NCC and
AEMC
330 Definitions
331 Confidentiality
of information received for scheme procedure purpose and for making of scheme
decision
Part 3—Miscellaneous
332 Failure to make a decision
under this Law or the Rules within time does not invalidate the
decision
333 Withdrawal of applications relating to
coverage or reclassification
334 Notification of
Ministers of participating jurisdictions of receipt of
application
335 Relevant Minister may request NCC to
give information or assistance
336 Savings and
transitionals
Schedule 1—Subject matter for the National Gas Rules
Schedule 2—Miscellaneous provisions relating to
interpretation
Part 1—Preliminary
1 Displacement of Schedule by
contrary intention
Part 2—General
2 Law to be construed not to exceed
legislative power of Legislature
3 Vacant
provision
4 Material that is, and is not, part of
Law
5 References to particular Acts and to
enactments
6 References taken to be included in Act or
Law citation etc
7 Interpretation best achieving Law's
purpose
8 Use of extrinsic material in
interpretation
9 Compliance with forms
Part 3—Terms and
references
10 Definitions
11 Provisions
relating to defined terms and gender and
number
12 Meaning of may and must
etc
13 Words and expressions used in statutory
instruments
14 References to
Minister
15 Production of records kept in computers
etc
16 References to this jurisdiction to be
implied
17 References to officers and holders of
offices
18 Reference to certain provisions of
Law
Part 4—Functions and powers
19 Performance of
statutory functions
20 Power to make instrument or
decision includes power to amend or repeal
21 Matters
for which statutory instruments may make
provision
22 Presumption of validity and power to
make
23 Appointments may be made by name or
office
24 Acting
appointments
25 Powers of appointment imply certain
incidental
powers
26 Delegation
27 Exercise
of powers between enactment and commencement
Part 5—Distance and time
28 Matters relating to
distance and time
Part 6—Service of documents
29 Service of documents
and meaning of service by post etc
30 Meaning of
service by post etc
Part 7—Evidentiary matters
Division 1—Publication on
websites
31 Definitions
32 Publication
of decisions on websites
Division 2—Evidentiary
certificates
33 Definitions
34 Evidentiary
certificates—AER
35 Evidentiary
certificates—AEMC
36 Evidentiary
certificates—NCC
37 Evidentiary
certificates—relevant Minister and Commonwealth
Minister
38 Evidentiary certificates—Bulletin
Board operator
Part 8—Commencement of this Law and statutory
instruments
39 Time of commencement of this Law or a provision
of this Law
40 Time of commencement of a
Rule
Part 9—Effect of repeal, amendment or
expiration
41 Time of Law, the Regulations or Rules ceasing to
have effect
42 Repealed Law, Regulation or Rule
provisions not revived
43 Saving of operation of
repealed Law, Regulation or Rule
provisions
44 Continuance of repealed
provisions
45 Law and amending Acts to be read as
one
Part 10—Offences under this Law
46 Penalty at foot
of provision
47 Penalty other than at foot of
provision
48 Indictable offences and summary
offences
49 Double
jeopardy
50 Aiding and abetting, attempts
etc
Part 11—Instruments under this Law
51 Schedule
applies to statutory instruments
52 National Gas Rules
to be construed so as not to exceed the legislative power of the Legislature of
this jurisdiction or the powers conferred by this
Law
53 Invalid Rules
Schedule 3—Savings and transitionals
Part
1—General
1 Definitions
2 Schedule
subject to jurisdictional transitional arrangements in jurisdictional
legislation
Part 2—General savings provision
3 Saving of
operation of old access law and Gas Code
Part 3—Classification and coverage of
pipelines
4 Pending applications for the classification of
pipelines lapse
5 Old scheme coverage
determinations
6 Old scheme covered transmission
pipelines
7 Old scheme covered distribution
pipelines
8 Pending coverage applications under old
scheme (before NCC recommendation)
9 Pending relevant
Minister decisions in relation to coverage under old
scheme
10 Pending relevant Minister decisions in
relation to coverage that are reviewed under old
scheme
11 Pending old scheme coverage determinations
where no applications for review under old
scheme
12 Pending old scheme coverage determinations
where applications for review under old scheme on
foot
13 Pending old scheme no-coverage determinations
where no applications for review under old
scheme
14 Pending old scheme no-coverage determinations
where applications for review under old scheme on
foot
15 Pending coverage revocation applications under
old scheme (before NCC recommendation)
16 Pending
relevant Minister decisions in relation to coverage revocation under old
scheme
17 Pending relevant Minister decisions in
relation to coverage revocation that are reviewed under old
scheme
18 Pending old scheme coverage revocation
determinations where no applications for review under old
scheme
19 Pending old scheme coverage revocation
determinations where applications for review under old scheme on
foot
20 Pending old scheme coverage non-revocation
determinations where no applications for review under old
scheme
21 Pending old scheme coverage non-revocation
determinations where applications for review under old scheme on
foot
22 Binding no-coverage
determinations
23 Pending applications for binding
no-coverage determinations (before NCC
recommendation)
24 Pending relevant Minister decisions
for binding no-coverage determinations under old
scheme
25 Pending relevant Minister decisions in
relation to binding no-coverage determinations that are reviewed under old
scheme
Part 4—Access arrangements
26 Current access
arrangements (other than old scheme limited access
arrangements)
27 Old scheme limited access
arrangements
28 Access arrangements submitted but not
approved or rejected before repeal of old
scheme
29 Access arrangement revisions submitted but
not approved or rejected before repeal of old
scheme
30 Certain provisions of the Gas Code to
continue to apply to current and proposed access
arrangements
31 Certain decisions relating to certain
access arrangements are reviewable regulatory decisions for purposes of Chapter
8 Part 5 of the Law
32 Limited access arrangements
submitted but not approved before repeal of old
scheme
33 Extensions and expansions
policies
34 Queuing policies
Part 5—Price regulation exemptions
35 Old scheme
price regulation exemptions
36 Pending applications for
price regulation exemptions
37 Pending Commonwealth
Minister decisions for price regulation exemptions
Part 6—Structural and operational separation (ring
fencing)
38 Definitions
39 Compliance
with certain old scheme ring fencing requirements sufficient compliance for 6
month period
40 Existing waivers of ring fencing
obligations
41 Additional ring fencing
obligations
Part 7—Access disputes
42 Non-finalised access
disputes
Part 8—Investigations and
proceedings
43 Investigations into breaches and possible
breaches of the old access law or Gas Code
44 AER may
conduct investigations into breaches or possible breaches of Gas Pipelines
Access Law not investigated by a relevant
Regulator
45 AER may bring proceedings in relation to
breaches of old access law and Gas Code
Part 9—Associate contracts
46 Pending associate
contract approvals that are approved after commencement
day
47 Pending associate contracts approvals that are
not approved
48 Approved associate
contracts
Part 10—Other
49 Pending and final tender approval
requests lapse
50 Decisions approving final approval
requests
51 Rights under certain change of law
provisions in agreements or deeds not to be
triggered
52 References to relevant Regulator in access
arrangements
53 Old scheme classifications and scheme
participant determinations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the National Gas (South Australia)
Act 2008.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) The Governor may, in acting under section 7(3) of the Acts
Interpretation Act 1915, fix different days for different provisions of
the Schedule to come into operation.
(3) Section 7(5) of the Acts Interpretation Act 1915 does not
apply to this Act or a provision of this Act.
(1) In this Act—
National Gas (South Australia) Law means the provisions
applying because of section 7 of this Act;
National Gas (South Australia) Regulations means the
provisions applying because of section 8 of this Act.
(2) Words and expressions used in the National Gas (South Australia)
Law and in this Act have the same respective meanings in this Act as they
have in that Law.
(3) This section does not apply to the extent that the context or subject
matter otherwise indicates or requires.
This Act, the National Gas (South Australia) Law and the National
Gas (South Australia) Regulations bind the Crown, not only in right of South
Australia but also, so far as the legislative power of the Parliament permits,
the Crown in all its other capacities.
5—Application to
coastal waters
(1) This Act, the National Gas (South Australia) Law and the
National Gas (South Australia) Regulations apply in the coastal waters of
this State as if the coastal waters were within the limits of the
State.
(2) In this section—
adjacent area in respect of the State means the adjacent area
of this jurisdiction under the National Gas (South Australia) Law (as
defined in section 9(1) of this Act);
coastal waters, in relation to this State, means any sea that
is on the landward side of the adjacent area in respect of the State but is not
within the limits of the State.
It is the intention of the Parliament that this Act, the National Gas
(South Australia) Law and the National Gas (South Australia)
Regulations should, so far as possible, operate to the full extent of the
extra-territorial legislative power of the State.
Part
2—National Gas (South Australia) Law
and National Gas (South Australia) Regulations
7—Application
of National Gas Law
The National Gas Law set out in the Schedule to this Act, as in force for
the time being—
(a) applies as a law of South Australia; and
(b) as so applying may be referred to as the National Gas (South
Australia) Law.
Note—
This section has effect to the extent to which the provisions of the
Schedule have come into operation—see section 2(2).
8—Application
of regulations under National Gas Law
The regulations in force for the time being under Part 3 of this
Act—
(a) apply as regulations in force for the purposes of the National Gas
(South Australia) Law; and
(b) as so applying may be referred to as the National Gas (South
Australia) Regulations.
9—Interpretation
of some expressions in National Gas (South
Australia) Law and National Gas (South Australia)
Regulations
(1) In the National Gas (South Australia) Law and the National
Gas (South Australia) Regulations—
adjacent area of another participating jurisdiction means the
area that is identified in section 5A of the Petroleum (Submerged Lands)
Act 1967 of the Commonwealth as being the adjacent area in respect of a
State other than this State or in respect of the Northern Territory;
adjacent area of this jurisdiction means the area that is
identified in section 5A of the Petroleum (Submerged Lands)
Act 1967 of the Commonwealth as being the adjacent area in respect of
this State;
Court means the Supreme Court of South Australia;
designated Minister means the Minister to whom the
administration of this Act has been committed;
Legislature of this jurisdiction means the Parliament of
South Australia;
National Gas Law or this Law means the
National Gas (South Australia) Law;
this jurisdiction means the State of South
Australia.
(2) The Acts Interpretation Act 1915 does not apply to the
National Gas (South Australia) Law or the National Gas (South
Australia) Regulations.
Part
3—Making of regulations and rules under National Gas
Law
In this Part—
National Gas Law means the National Gas Law set out in the
Schedule to this Act as in force for the time being.
11—General
regulation-making power for National Gas Law
(1) The Governor may make such regulations as are contemplated by, or
necessary or expedient for the purposes of, the National Gas Law.
(2) Without limiting subsection (1), the regulations may prescribe
fees in respect of any matter under the National Gas Law, and provide for the
waiver or refund of such fees.
(3) Regulations under this Part may—
(a) be of general or limited application;
(b) vary according to the persons, times, places or circumstances to which
they are expressed to apply;
(c) in relation to fees, prescribe differential fees or provide for fees
to be determined according to prescribed factors.
(4) Once the Governor has made a regulation prescribing 1 or more
pipelines to be designated pipelines for the purposes of the definition of
designated pipeline in section 2 of the National Gas Law, the
Governor cannot make another regulation that prescribes any other pipeline to be
a designated pipeline.
(5) Regulations under this Part may be made only on the unanimous
recommendation of the Ministers of the participating jurisdictions.
(6) Section 10 of the Subordinate Legislation Act 1978 does
not apply to a regulation under this Part.
12—Specific
regulation-making power
(1) Without limiting the generality of section 11, the regulations
may deal with matters of a transitional nature relating to the transition from
the application of provisions of the old access law or the Gas Code to the
application of provisions of the National Gas Law.
(2) Any provision of the regulations that deals with a matter of a
transitional nature under subsection (1) may be expressed to take effect
from a time that is earlier than the beginning of the day on which the
regulations containing the provision are made, not being a time earlier than the
commencement of this subsection.
(3) If a provision of a regulation is expressed to take effect from a time
that is earlier than the beginning of the day on which the regulations
containing the provision are made, the provision must also provide that the
provision does not operate so as—
(a) to prejudicially affect the rights of a person (other than the rights
of a Minister of a participating jurisdiction or an entity involved in the
administration of the old access law, the Gas Code or the National Gas Law)
existing before the date of making of those regulations; or
(b) to impose liabilities on any person (other than liabilities imposed on
a Minister of a participating jurisdiction or an entity involved in the
administration of the old access law, the Gas Code or the National Gas Law) in
respect of anything done or omitted to be done before the date of making of
those regulations.
(4) In this section—
Gas Code means the National Third Party Access Code for
Natural Gas Pipelines Systems set out in Schedule 2 of the Gas
Pipelines Access (South Australia) Act 1997 as in force from time to
time before the commencement of this section;
matters of a transitional nature includes matters of an
application or savings nature;
National Gas Law means the National Gas Law set out in the
Schedule to this Act as in force from time to time after the commencement of
this section, or the Rules as in force from time to time after the commencement
of this section;
old access law means Schedule 1 to the Gas Pipelines
Access (South Australia) Act 1997 as in force from time to time before
the commencement of this section.
The Subordinate Legislation Act 1978 does not apply to Rules
made under the National Gas Law.
Part 4—Cross
vesting of powers
14—Conferral of
powers on Commonwealth Minister and Commonwealth bodies to act in this
State
(1) The Commonwealth Minister and the Commonwealth bodies have power to do
acts in or in relation to this State in the performance or exercise of a
function or power expressed to be conferred on them respectively by the national
gas legislation of another participating jurisdiction.
(2) In this section—
Commonwealth bodies means any of the following:
(a) AER;
(b) NCC;
(c) the Tribunal.
15—Conferral of
powers on Ministers of participating States and Territories to act in this
State
The Minister of a participating jurisdiction has power to do acts in or in
relation to this State in the performance or exercise of a function or power
expressed to be conferred on the Minister by the national gas legislation of
another participating jurisdiction.
16—Conferral of
functions or powers on State Minister
If the national gas legislation of another participating jurisdiction
confers a function or power on the Minister, the Minister—
(a) may perform that function or exercise that power; and
(b) may do all things necessary or convenient to be done in connection
with the performance or exercise of that function or power.
(1) Any stamp duty or other tax imposed by or under a law of this State is
not payable in relation to—
(a) an exempt matter; or
(b) anything done (including, for example, a transaction entered into or
an instrument or document made, executed, lodged or given) because of, or
arising out of, an exempt matter.
(2) In this section—
exempt matter means a transfer of assets or
liabilities—
(a) that is made for the purpose of ensuring that a person does not carry
on a business of producing, purchasing or selling natural gas or processable gas
in breach of any ring fencing requirements of any national gas legislation or
for the purpose of the separation of certain businesses or business activities
from other businesses or business activities of a person as required by an AER
ring fencing determination; and
(b) that the Minister and the Treasurer declare from time to time by
notice in the Gazette to be an exempt matter for the purposes of this
section.
18—Actions in
relation to cross boundary pipelines
(1) If a pipeline is a cross boundary pipeline, any action taken under the
national gas legislation of a participating jurisdiction in whose jurisdictional
area a part of the pipeline is situated—
(a) by, or in relation to, a relevant Minister; or
(b) by the Court within the meaning of that legislation in relation to
action taken by, or in relation to, a relevant Minister,
is taken also to be taken under the national gas legislation of each
participating jurisdiction in whose jurisdictional area a part of the pipeline
is situated (that other legislation)—
(c) by, or in relation to, a relevant Minister within the meaning of that
other legislation; or
(d) by the Court within the meaning of that other legislation,
as the case requires.
(2) Despite subsection (1), no proceeding for judicial review or for
a declaration, injunction, writ, order or remedy may be brought before the Court
to challenge or question any action, or purported action, of a relevant Minister
taken, or purportedly taken, in relation to a cross boundary distribution
pipeline unless this jurisdiction has been determined to be the participating
jurisdiction with which the cross boundary distribution pipeline is most closely
connected.
(3) A reference in this section—
(a) to an action that is taken includes a reference to—
(i) a decision or determination that is made; or
(ii) an omission that is made;
(b) to a purported action that is purportedly taken includes a reference
to a purported decision or determination that is purportedly made.
(4) In this section—
cross boundary pipeline means—
(a) a cross boundary transmission pipeline; or
(b) a cross boundary distribution pipeline.
19—Conferral of
functions and powers on Commonwealth bodies
(1) Clause 2 of Schedule 2 to the National Gas (South Australia)
Law has effect in relation to the operation of any provision of this Act, or
any regulation made under this Act, as if the provision or regulation formed
part of the National Gas (South Australia) Law.
(2) Subsection (1) does not limit the effect that a provision or
regulation would validly have apart from the subsection.
Part 6—Repeal of
Gas Pipelines Access (South Australia)
Act 1997
20—Repeal of
Gas Pipelines Access (South Australia)
Act 1997
The Gas Pipelines Access (South Australia) Act 1997 is
repealed.
Part 7—Amendment
of this Act when Offshore Petroleum
Act 2006 commences
21—Amendment of
this Act when Offshore Petroleum Act 2006
commences
(1) This Act is amended in the manner specified by subsection (2)
(and a reference in this section to a provision is a reference to a provision of
this Act).
(2) Section 9(1), definitions of adjacent area of another
participating jurisdiction and adjacent area of this
jurisdiction—delete these definitions and substitute:
adjacent area of another participating jurisdiction means the
offshore area of a State other than this State or of the Northern Territory
within the meaning given in section 7 of the Offshore Petroleum Act
2006 of the Commonwealth;
adjacent area of this jurisdiction means the offshore area of
the State within the meaning given in section 7 of the Offshore
Petroleum Act 2006 of the Commonwealth;
Part 8—Amendment
of Australian Energy Market Commission
Establishment Act 2004
22—Amendment of
Australian Energy Market Commission
Establishment Act 2004
(1) The Australian Energy Market Commission Establishment
Act 2004 is amended in the manner specified by this section (and a
reference in this section to a provision is a reference to a provision of that
Act).
(2) Section 3(1), definitions of Gas Pipelines Access Application
Act, Gas Pipelines Access Law and Gas Pipelines
Access Regulations—delete the definitions
(3) Section 3(1), definition of National Energy Law,
paragraphs (e) to (h) (inclusive)—delete the paragraphs and
substitute:
(e) a National Gas Application Act; or
(f) the National Gas Law; or
(g) the National Gas Regulations; or
(h) the National Gas Rules;
(4) Section 3(1), definitions of National Third Party Access Code
for Natural Gas Pipelines Systems and natural
gas—delete the definitions and substitute:
National Gas Application Act means—
(a) the National Gas (South Australia) Act 2008; or
(b) the Australian Energy Market Act 2004 of the Commonwealth;
or
(c) any other Act of a State or Territory of the Commonwealth that applies
the National Gas Law set out in the Schedule to the National Gas (South
Australia) Act 2008, with or without modification and whether as in force at
a particular time or as in force for the time being, as a law of that
jurisdiction;
National Gas Law means the National Gas Law set out in the
Schedule to the National Gas (South Australia) Act 2008 applying as
a law of South Australia or as applied, with or without modification and whether
as in force at a particular time or as in force for the time being, as a law of
another jurisdiction;
National Gas Regulations means regulations that, under a
National Gas Application Act, apply as regulations for the purposes of a
National Gas Law;
National Gas Rules means the National Gas Rules as defined in
section 2 of the National Gas Law;
natural gas has the same meaning as in the National Gas
Law;
Chapter 1—Preliminary
Part 1—Citation and
interpretation
1—Citation
This law may be cited as the National Gas Law.
2—Definitions
In this Law—
15-year no-coverage determination means a determination of a
relevant Minister under Chapter 5 Part 2;
ACCC means the Australian Competition and Consumer Commission
established by section 6A of the Trade Practices Act 1974 of the
Commonwealth;
access arrangement means an arrangement setting out terms and
conditions about access to pipeline services provided or to be provided by means
of a pipeline;
access determination means a determination of the dispute
resolution body under Chapter 6 Part 3 and includes a determination varied under
Part 4 of that Chapter;
AEMC means the Australian Energy Market Commission
established by section 5 of the Australian Energy Market Commission
Establishment Act 2004 of South Australia;
AER means the Australian Energy Regulator established by
section 44AE of the Trade Practices Act 1974 of the
Commonwealth;
AER economic regulatory decision means a decision (however
described) of the AER under this Law or the Rules performing or exercising an
AER economic regulatory function or power;
AER economic regulatory function or power means a function or
power performed or exercised by the AER under this Law or the Rules that relates
to the economic regulation of pipeline services provided by a service
provider—
(a) by means of; or
(b) in connection with,
a scheme pipeline and includes a function or power performed or exercised
by the AER under this Law or the Rules that relates to—
(c) the preparation of a service provider performance report;
(d) a ring fencing decision;
(e) an applicable access arrangement decision;
(f) an access determination (if the AER is the dispute resolution
body);
AER ring fencing determination means a determination of the
AER under section 143(1);
applicable access arrangement means a limited access
arrangement or full access arrangement that has taken effect after being
approved or made by the AER under the Rules and includes an applicable access
arrangement as varied—
(a) under the Rules; or
(b) by an access determination as provided by this Law or the
Rules;
applicable access arrangement decision means—
(a) a full access arrangement decision; or
(b) a limited access arrangement decision;
approved associate contract means an associate contract
approved by the AER under an associate contract decision;
associate in relation to a person has the same meaning it
would have under Division 2 of Part 1.2 of the Corporations Act 2001 of
the Commonwealth if sections 13, 16(2) and 17 did not form part of that
Act;
associate contract means—
(a) a contract, arrangement or understanding between a service provider
and an associate of the service provider in connection with the provision of an
associate pipeline service; or
(b) a contract, arrangement or understanding between a service provider
and any person in connection with the provision of an associate pipeline
service—
(i) that provides a direct or indirect benefit to an associate;
and
(ii) that is not at arm's length;
associate contract decision means a decision of the AER under
the Rules that approves or does not approve an associate contract for the
purposes of Chapter 4 Part 2 Division 5;
associate pipeline service means a pipeline service provided
by means of a pipeline other than a pipeline to which a 15-year no coverage
determination applies;
Bulletin Board information means information
that—
(a) a person gives to the Bulletin Board operator to comply with
section 223(1); or
(b) a person gives to the Bulletin Board operator in circumstances
expressly permitted by the Rules;
Bulletin Board operator means the person prescribed by the
Regulations for the purposes of section 217;
charge, in relation to a pipeline service, means the amount
that is payable by a user to a service provider for the provision of the
pipeline service to that user;
civil penalty means—
(a) in the case of a breach of a civil penalty provision by a natural
person—
(i) an amount not exceeding $20 000; and
(ii) an amount not exceeding $2 000 for every day during which the
breach continues;
(b) in the case of a breach of a civil penalty provision by a body
corporate—
(i) an amount not exceeding $100 000; and
(ii) an amount not exceeding $10 000 for every day during which the breach
continues;
civil penalty provision has the meaning given by
section 3;
classification decision under the Rules means a decision of
the NCC under the Rules that classifies either of the following pipelines as a
cross boundary transmission pipeline, cross boundary distribution pipeline,
transmission pipeline or a distribution pipeline:
(a) a pipeline in respect of which a tender approval decision becomes
irrevocable by operation of the Rules;
(b) a pipeline—
(i) by means of which a service provider intends to provide pipeline
services to which a full access arrangement voluntarily submitted to the AER for
approval by that provider will apply, if approved; and
(ii) in respect of which the NCC has not previously made an initial
classification decision;
commission, in relation to a pipeline, has the meaning given
by section 12;
Commonwealth Minister means the Minister of the Commonwealth
administering the Australian Energy Market Act 2004 of the
Commonwealth;
conduct provision has the meaning given by
section 4;
coverage determination means a determination of a relevant
Minister under Chapter 3 Part 1 Division 1;
coverage recommendation means a recommendation of the NCC
under Chapter 3 Part 1 Division 1;
coverage revocation determination means a determination of a
relevant Minister under Chapter 3 Part 1 Division 2;
coverage revocation recommendation means a recommendation of
the NCC under Chapter 3 Part 1 Division 2;
covered pipeline means a pipeline—
(a) to which a coverage determination applies; or
(b) deemed to be a covered pipeline by operation of section 126 or
127;
covered pipeline service provider means a service provider
that provides or intends to provide pipeline services by means of a covered
pipeline;
cross boundary distribution pipeline means a distribution
pipeline that is partly situated in the jurisdictional areas of 2 or more
participating jurisdictions;
cross boundary transmission pipeline means a transmission
pipeline that is partly situated in the jurisdictional areas of 2 or more
participating jurisdictions;
designated pipeline means a pipeline prescribed by the
Regulations to be a designated pipeline;
Note—
A light regulation determination cannot be made in respect of pipeline
services provided by means of a designated pipeline: see sections 109 and
111.
developable capacity means the difference between the current
capacity of a covered pipeline and the capacity of a covered pipeline which
would be available if a new facility was constructed, but does not include any
new capacity of a covered pipeline resulting from an extension to the geographic
range of a covered pipeline;
dispute resolution body means the AER;
distribution pipeline means a pipeline that is classified in
accordance with this Law or the Rules as a distribution pipeline and includes
any extension to, or expansion of the capacity of, such a pipeline when it is a
covered pipeline that, by operation of an applicable access arrangement or under
this Law, is to be treated as part of the pipeline;
Note—
See also sections 18 and 19.
draft Rule determination means a determination of the AEMC
under section 308;
end user means a person who acquires natural gas or proposes
to acquire natural gas for consumption purposes;
ERA means the Economic Regulation Authority established by
section 4 of the Economic Regulation Authority Act 2003 of Western
Australia;
extension and expansion requirements means—
(a) the requirements contained in an access arrangement that, in
accordance with the Rules, specify—
(i) the circumstances when an extension to, or expansion of the capacity
of, a covered pipeline is to be treated as forming part of the covered pipeline;
and
(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 in force from
time to time before the commencement of section 20 of the National Gas (South
Australia) Act 2008 of South Australia;
gas market operator means VENCorp or any other person or body
prescribed by the Regulations to be a gas market operator;
general regulatory information order has the meaning given by
section 45;
greenfields pipeline incentive means—
(a) a 15-year no-coverage determination; or
(b) a price regulation exemption;
haulage, in relation to natural gas, includes conveyance or
reticulation of natural gas;
initial classification decision means a decision of the NCC
under section 98 or 155;
initial National Gas Rules means the National Gas Rules made
under section 294;
international pipeline means a pipeline for the haulage of
gas from a foreign source;
jurisdictional determination criteria, in relation to a cross
boundary distribution pipeline, has the meaning given by
section 14;
jurisdictional gas legislation means an Act of a
participating jurisdiction (other than national gas legislation), or any
instrument made or issued under or for the purposes of that Act, that regulates
the haulage of gas in that jurisdiction;
light regulation determination means a determination of the
NCC under Chapter 3 Part 2 Division 1;
light regulation services means pipeline services to which a
light regulation determination applies;
limited access arrangement means an access arrangement that,
under this Law and the Rules, is not required to make provision for price or
revenue regulation but deals with the matters for which this Law and the Rules
require provision to be made in an access arrangement;
limited access arrangement decision means a decision of the
AER under the Rules that approves or does not approve—
(a) a limited access arrangement submitted to the AER under
section 116 or 168; or
(b) revisions to a limited access arrangement submitted to the AER under
section 116(3) or 168(3) or the Rules;
MCE means the Ministerial Council on Energy established on 8
June 2001, being the Council of Ministers with primary carriage of energy
matters at a national level comprising the Ministers representing the
Commonwealth, the States, the Australian Capital Territory and the Northern
Territory, acting in accordance with its own procedures;
MCE directed review means a review conducted by the AEMC
under Chapter 2 Part 2 Division 4;
MCE statement of policy principles means a statement of
policy principles issued by the MCE under section 25;
minimum ring fencing requirement means a requirement under
Chapter 4 Part 2 Division 2;
Minister of a participating jurisdiction means a Minister who
is a Minister of a participating jurisdiction within the meaning of section
22;
Ministerial coverage decision means—
(a) a decision of a relevant Minister under section 99, 106 or 156;
or
(b) a decision of the Commonwealth Minister under
section 164;
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 (South Australia) Act 1997 of South Australia as in force from
time to time before the commencement of section 20 of the National Gas (South
Australia) Act 2008 of South Australia;
old scheme classification or determination means a
classification or determination under section 10 or 11 of the old access law in
force at any time before the repeal of the old access law;
old scheme distribution pipeline means a pipeline that was,
at any time before the repeal of the old access law—
(a) a distribution pipeline as defined in that law; and
(b) a covered pipeline as defined in the Gas Code;
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;
reclassification decision means a decision of the NCC under
Chapter 3 Part 5;
reference service means a pipeline service specified by, or
determined or approved by the AER under, the Rules as a reference
service;
reference tariff means a tariff or charge for a reference
service—
(a) specified in an applicable access arrangement approved or made under a
full access arrangement decision; or
(b) determined by applying the formula or methodology contained in an
applicable access arrangement approved or made under a full access arrangement
decision;
Regulations means the regulations made under Part 3 of the
National Gas (South Australia) Act 2008 of South Australia that apply as
a law of this jurisdiction;
regulatory information instrument means—
(a) a general regulatory information order; or
(b) a regulatory information notice;
regulatory information notice has the meaning given by
section 46;
regulatory obligation or requirement has the meaning given by
section 6;
regulatory payment has the meaning given by
section 7;
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;
VENCorp means the Victorian Energy Networks Corporation
continued under Part 8 of the Gas Industry Act 2001 of
Victoria.
3—Meaning of civil penalty
provision
A civil penalty provision is—
(a) a provision of this Law specified in an item in the Table at the foot
of this section; or
(b) a provision of this Law (other than an offence provision) or the Rules
that is prescribed by the Regulations to be a civil penalty provision.
Table
Item |
Provision |
---|---|
1 |
Section 56 |
2 |
Section 57 |
3 |
Section 131 |
4 |
Section 133 |
5 |
Section 134 |
6 |
Section 135 |
7 |
Section 136 |
8 |
Section 139 |
9 |
Section 140 |
10 |
Section 141 |
11 |
Section 143(6) |
12 |
Section 147 |
13 |
Section 148 |
14 |
Section 168 |
15 |
Section 169(3) |
16 |
Section 170 |
17 |
Section 195 |
18 |
Section 223 |
19 |
Section 225 |
20 |
Section 227 |
21 |
Section 228 |
4—Meaning of conduct provision
A conduct provision is—
(a) a provision of this Law specified in an item in the Table at the foot
of this section; or
(b) a provision of this Law (other than an offence provision) or the Rules
that is prescribed by the Regulations to be a conduct provision.
Table
Item |
Provision |
---|---|
1 |
Section 133 |
2 |
Section 134 |
3 |
Section 135 |
4 |
Section 136 |
5 |
Section 147 |
6 |
Section 148 |
7 |
Section 170 |
5—Meaning of prospective user
(1) A prospective user is a person who seeks or wishes to be provided with
a pipeline service by means of a scheme pipeline.
(2) To avoid doubt, a user is also a prospective user if the user seeks or
wishes to be provided with a pipeline service by means of a scheme pipeline
other than a pipeline service already provided to them under—
(a) a contract; or
(b) an access determination.
6—Meaning of regulatory obligation or
requirement
(1) A regulatory obligation or requirement is—
(a) in relation to the provision of a pipeline service by a service
provider—
(i) a pipeline safety duty; or
(ii) a pipeline reliability standard; or
(iii) a pipeline service standard; or
(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).
7—Meaning of regulatory
payment
A regulatory payment is a sum that a service provider had been required or
allowed to pay to a user or an end user for a breach of, as the case
requires—
(a) a pipeline reliability standard; or
(b) a pipeline service standard,
because it was efficient for the service provider (in terms of the service
provider's overall business) to pay that sum.
Note—
See also section 24(2)(b).
8—Meaning of service provider
(1) A service provider is a person who—
(a) owns, controls or operates; or
(b) intends to own, control or operate,
a pipeline or scheme pipeline, or any part of a pipeline or scheme
pipeline.
Note—
A service provider must not provide pipeline services by means of a scheme
pipeline unless the service provider is a legal entity of a specified kind: See
section 131, and section 169 where the scheme pipeline is an
international pipeline to which a price regulation exemption applies.
(2) A gas market operator that controls or operates (without at the same
time owning)—
(a) a pipeline or scheme pipeline; or
(b) a part of a pipeline or scheme pipeline,
is not to be taken to be a service provider for the purposes of this
Law.
9—Passive owners of scheme pipelines deemed to
provide or intend to provide pipeline services
(1) This section applies to a person who owns a scheme pipeline but does
not provide or intend to provide pipeline services by means of that
pipeline.
(2) The person is, for the purposes of this Law, deemed to provide or
intend to provide pipeline services by means of that pipeline even if the person
does not, in fact, do so.
10—Things done by 1 service provider to be treated
as being done by all of service provider group
(1) This section applies if—
(a) more than 1 service provider (a service provider group)
carries out a controlling pipeline activity in respect of a pipeline (or a part
of a pipeline); and
(b) under this Law or the Rules a service provider is required or allowed
to do a thing.
(2) A service provider of the service provider group (the complying
service provider) may do that thing on behalf of the other service
providers of the service provider group if the complying service provider has
the written permission of all of the service providers of that group to do that
thing on behalf of the service provider group.
(3) Unless this Law or the Rules otherwise provide, on the doing of a
thing referred to in subsection (2) by a complying service provider, the
service providers of the service provider group on whose behalf the complying
service provider does that thing, must, for the purposes of this Law and the
Rules, each be taken to have done the thing done by the complying service
provider.
(4) This section does not apply to a thing required or allowed to be done
under section 131 or Chapter 4 Part 2.
(5) In this section—
controlling pipeline activity means own, control or
operate.
11—Local agents of foreign service
providers
(1) This section applies if—
(a) a service provider is a foreign company; and
(b) the service provider has, under the Corporations Act 2001 of
the Commonwealth, appointed a local agent within the meaning of that
Act.
(2) The local agent—
(a) is answerable for the doing of all acts, matters and things the
service provider is required by or under this Law to do; and
(b) is personally liable to a penalty imposed on the service provider for
a breach of a provision of this Law or the Rules if a court hearing the matter
is satisfied that the local agent should be so liable.
12—Commissioning of a pipeline
A pipeline is commissioned when the pipeline is first used for the haulage
of natural gas, on a commercial basis.
13—Pipeline classification
criterion
(1) The pipeline classification criterion is whether the primary function
of the pipeline is to—
(a) reticulate gas within a market (which is the primary function of a
distribution pipeline); or
(b) convey gas to a market (which is the primary function of a
transmission pipeline).
(2) Without limiting subsection (1), in determining the primary
function of the pipeline, regard must also be had to whether the characteristics
of the pipeline are those of a transmission pipeline or distribution pipeline
having regard to—
(a) the characteristics and classification of, as the case requires, an
old scheme transmission pipeline or an old scheme distribution
pipeline;
(b) the characteristics of, as the case requires, a transmission pipeline
or a distribution pipeline classified under this Law;
(c) the characteristics and classification of pipelines specified in the
Rules (if any);
(d) the diameter of the pipeline;
(e) the pressure at which the pipeline is or will be designed to
operate;
(f) the number of points at which gas can or will be injected into the
pipeline;
(g) the extent of the area served or to be served by the
pipeline;
(h) the pipeline's linear or dendritic configuration.
14—Jurisdictional determination
criteria—cross boundary distribution pipelines
The pipeline jurisdictional determination criteria are—
(a) whether more gas is to be delivered by a cross boundary distribution
pipeline in the jurisdictional area of 1 participating jurisdiction than in the
jurisdictional area of any other participating jurisdiction;
(b) whether more customers to be served by a cross boundary distribution
pipeline are resident in the jurisdictional area of 1 participating jurisdiction
than in the jurisdictional area of any other participating
jurisdiction;
(c) whether more of the network for a cross boundary distribution pipeline
is in the jurisdictional area of 1 participating jurisdiction than in the
jurisdictional area of any other participating jurisdiction;
(d) whether 1 participating jurisdiction has greater prospects for growth
in the gas market served or to be served by a cross boundary distribution
pipeline than any other participating jurisdiction;
(e) whether the regional economic benefits from competition are likely to
be greater for 1 participating jurisdiction than for any other participating
jurisdiction.
15—Pipeline coverage criteria
The pipeline coverage criteria are—
(a) that access (or increased access) to pipeline services provided by
means of the pipeline would promote a material increase in competition in at
least 1 market (whether or not in Australia), other than the market for the
pipeline services provided by means of the pipeline;
(b) that it would be uneconomic for anyone to develop another pipeline to
provide the pipeline services provided by means of the pipeline;
(c) that access (or increased access) to the pipeline services provided by
means of the pipeline can be provided without undue risk to human health or
safety;
(d) that access (or increased access) to the pipeline services provided by
means of the pipeline would not be contrary to the public interest.
16—Form of regulation factors
The form of regulation factors are—
(a) the presence and extent of any barriers to entry in a market for
pipeline services;
(b) the presence and extent of any network externalities (that is,
interdependencies) between a natural gas service provided by a service provider
and any other natural gas service provided by the service provider;
(c) the presence and extent of any network externalities (that is,
interdependencies) between a natural gas service provided by a service provider
and any other service provided by the service provider in any other
market;
(d) the extent to which any market power possessed by a service provider
is, or is likely to be, mitigated by any countervailing market power possessed
by a user or prospective user;
(e) the presence and extent of any substitute, and the elasticity of
demand, in a market for a pipeline service in which a service provider provides
that service;
(f) the presence and extent of any substitute for, and the elasticity of
demand in a market for, electricity or gas (as the case may be);
(g) the extent to which there is information available to a prospective
user or user, and whether that information is adequate, to enable the
prospective user or user to negotiate on an informed basis with a service
provider for the provision of a pipeline service to them by the service
provider.
17—Effect of separate and consolidated access
arrangements in certain cases
(1) This section applies despite anything to the contrary in this
Law.
(2) If, under this Law and the Rules, separate access arrangements are
approved in an applicable access arrangement decision for pipeline services
provided, or to be provided, by means of different parts of a covered pipeline,
each part of the covered pipeline—
(a) by which pipeline services are provided; and
(b) to which each separate applicable access arrangement
applies,
must to be taken to be a separate covered pipeline for the purposes of this
Law.
(3) If under this Law and the Rules, a single access arrangement is
approved in an applicable access arrangement decision for pipeline services
provided, or to be provided, by means of 2 or more covered pipelines, those
pipelines must be taken to be a single covered pipeline for the purposes of this
Law.
18—Certain extensions to, or expansion of the
capacity of, pipelines to be taken to be part of a covered
pipeline
For the purposes of this Law—
(a) an extension to, or expansion of the capacity of, a covered pipeline
must be taken to be part of the covered pipeline; and
(b) the pipeline as extended or expanded must be taken to be a covered
pipeline,
if, by operation of the extension and expansion requirements under an
applicable access arrangement, the applicable access arrangement will apply to
pipeline services provided by means of the covered pipeline as extended or
expanded.
19—Expansions of and extensions to covered pipeline
by which light regulation services are provided
For the purposes of this Law, an extension to, or expansion of the capacity
of, a covered pipeline by means of which light regulation services (and in
respect of which there is no limited access arrangement) are provided, must be
taken to be part of the covered pipeline unless the AER determines otherwise in
writing.
20—Interpretation generally
Schedule 2 to this Law applies to this Law, the Regulations and the Rules
and any other statutory instrument made under this Law.
Part 2—Participating
jurisdictions
21—Participating jurisdictions
The State of South Australia, the Commonwealth, each of the States of New
South Wales, Victoria, Queensland, Western Australia and Tasmania, and the
Australian Capital Territory and the Northern Territory are participating
jurisdictions for the purposes of this Law.
22—Ministers of participating
jurisdictions
The Ministers of the participating jurisdictions are—
(a) the Minister of the Crown in right of South Australia administering
Part 2 of the National Gas (South Australia) Act 2008 of South Australia;
and
(b) the Minister of the Crown in right of Western Australia administering
the National Gas Access (Western Australia) Act 2008 of Western
Australia; and
(c) the Minister of the Crown in right of the Commonwealth administering
the Australian Energy Market Act 2004 of the Commonwealth; and
(d) the Ministers of the Crown in right of the other participating
jurisdictions administering the laws of those jurisdictions that substantially
correspond to Part 2 of the National Gas (South Australia) Act 2008 of
South Australia.
Part 3—National gas objective and
principles
Division 1—National gas
objective
23—National gas objective
The objective of this Law is to promote efficient investment in, and
efficient operation and use of, natural gas services for the long term interests
of consumers of natural gas with respect to price, quality, safety, reliability
and security of supply of natural gas.
Division 2—Revenue and pricing
principles
24—Revenue and pricing
principles
(1) The revenue and pricing principles are the principles set out in
subsections (2) to (7).
(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.
Division 3—MCE policy
principles
25—MCE statements of policy
principles
(1) Subject to this section, the MCE may issue a statement of policy
principles in relation to any matters that are relevant to the exercise and
performance by the AEMC of its functions and powers in—
(a) making a Rule; or
(b) conducting a review under section 83.
(2) Before issuing a statement of policy principles, the MCE must be
satisfied that the statement is consistent with the national gas
objective.
(3) As soon as practicable after issuing a statement of policy principles,
the MCE must give a copy of the statement to the AEMC.
(4) The AEMC must publish the statement in the South Australian Government
Gazette and on its website as soon as practicable after it is given a copy of
the statement.
Part 4—Operation and effect of National Gas
Rules
26—National Gas Rules to have force of
law
The National Gas Rules have the force of law in this
jurisdiction.
Chapter 2—Functions and powers of gas market
regulatory entities
Part 1—Functions and powers of the Australian
Energy Regulator
Division 1—General
27—Functions and powers of the
AER
(1) The AER has the following functions and powers:
(a) to monitor compliance by persons with this Law, the Regulations and
the Rules, including compliance with an applicable access arrangement, an access
determination and a ring fencing decision; and
(b) to investigate breaches or possible breaches of provisions of this
Law, the Regulations or the Rules, including offences against this Law;
and
(c) to institute and conduct proceedings in relation to breaches of
provisions of this Law, the Regulations or the Rules, including offences against
this Law; and
(d) to institute and conduct appeals from decisions in proceedings
referred to in paragraph (c); and
(e) AER economic regulatory functions or powers; and
(f) to prepare and publish reports on the financial and operational
performance of service providers in providing pipeline services by means of
covered pipelines; and
(g) to approve compliance programs of service providers relating to
compliance by service providers with this Law or the Rules; and
(h) any other functions and powers conferred on it under this Law or the
Rules.
(2) The AER has the power to do all things necessary or convenient to be
done for or in connection with the performance of its functions.
28—Manner in which AER must perform or exercise AER
economic regulatory functions or powers
(1) The AER must, in performing or exercising an AER economic regulatory
function or power, perform or exercise that function or power in a manner that
will or is likely to contribute to the achievement of the national gas
objective.
(2) In addition, the AER—
(a) must take into account the revenue and pricing
principles—
(i) when exercising a discretion in approving or making those parts of an
access arrangement relating to a reference tariff; or
(ii) when making an access determination relating to a rate or charge for
a pipeline service; and
(b) may take into account the revenue and pricing principles when
performing or exercising any other AER economic regulatory function or power, if
the AER considers it appropriate to do so.
(3) For the purposes of subsection (2)(a)(ii), a reference to a
"reference service" in the revenue and pricing principles must be read as a
reference to a "pipeline service".
29—Delegations
Any delegation by the AER under section 44AAH of the Trade Practices Act
1974 of the Commonwealth extends to, and has effect for the purposes of,
this Law, the Regulations and the Rules.
30—Confidentiality
Section 44AAF of the Trade Practices Act 1974 of the Commonwealth
has effect for the purposes of this Law, the Regulations and the Rules as if it
formed part of this Law.
Note—
See also Chapter 10 Part 2 Division 1.
Division 2—Search warrants
31—Definitions
In this Division—
authorised person means a person authorised under
section 32;
relevant provision means a provision of this Law, the
Regulations or the Rules.
32—Authorised person
(1) The AER may, in writing, authorise a person that the AER considers is
suitably qualified or trained to be an authorised person for the purposes of
this Division.
(2) An authorised person must comply with any direction of the AER in
exercising powers or functions as an authorised person.
33—Identity cards
(1) The AER must issue an identity card to an authorised person.
(2) The identity card must contain the name, a recent photograph and the
signature of the authorised person.
(3) An authorised person must carry the identity card at all times when
exercising powers or performing functions as an authorised person.
(4) An authorised person must produce his or her identity card for
inspection—
(a) before exercising a power as an authorised person; or
(b) at any time during the exercise of a power as an authorised person, if
asked to do so.
34—Return of identity cards
If a person to whom an identity card has been issued ceases to be an
authorised person, the person must return the identity card to the AER as soon
as practicable.
Maximum penalty: $500
35—Search warrant
(1) An authorised person may apply to a magistrate for the issue of a
search warrant in relation to a particular place if the person—
(a) believes on reasonable grounds that—
(i) there is or has been or will be a breach of a relevant provision;
and
(ii) there is or may be a thing or things of a particular kind connected
with that breach on or in that place; or
(b) reasonably suspects that—
(i) there may have been a breach of a relevant provision; and
(ii) there is or may be a thing or things of a particular kind connected
with that breach on or in that place.
(2) If a magistrate is satisfied by the evidence, on oath or by affidavit,
of an authorised person that there are reasonable grounds for suspecting that
there is, or may be within the next 7 days, a thing or things of a particular
kind connected with a breach or possible breach of a relevant provision on or in
a place, the magistrate may issue a search warrant authorising an authorised
person named in the warrant—
(a) to enter the place specified in the warrant, with such assistance and
by the use of such force as is necessary and reasonable;
(b) to search the place or any part of the place;
(c) to search for and seize a thing named or described in the warrant and
which the person believes on reasonable grounds to be connected with the breach
or possible breach of the relevant provision;
(d) to inspect, examine or record an image of anything in the
place;
(e) to take extracts from, and make copies of, any documents in the
place;
(f) to take into the place such equipment and materials as the person
requires for exercising the powers.
(3) A search warrant issued under this section must state—
(a) the purpose for which the search is required and the nature of the
suspected breach of the relevant provision; and
(b) any conditions to which the warrant is subject; and
(c) whether entry is authorised to be made at any time of the day or night
or during stated hours of the day or night; and
(d) a day, not later than 7 days after the issue of the warrant, on which
the warrant ceases to have effect.
(4) Except as provided by this Law, the rules to be observed with respect
to search warrants mentioned in any relevant laws of this jurisdiction extend
and apply to warrants under this section.
36—Announcement of entry and details of warrant to
be given to occupier or other person at premises
(1) This section applies if the occupier or another person who apparently
represents the occupier is present at premises when a search warrant is being
executed.
(2) The authorised person executing the warrant must—
(a) identify himself or herself to that person; and
(b) announce that he or she is authorised by the warrant to enter the
place; and
(c) before using force to enter, give the person an opportunity to allow
entry; and
(d) give the person a copy of the warrant.
(3) The authorised person executing the warrant is not entitled to
exercise any powers under the warrant in relation to premises if the authorised
person does not comply with subsection (2).
37—Immediate entry permitted in certain
cases
An authorised person executing a warrant need not comply with
section 36 if he or she believes on reasonable grounds that immediate entry
to premises is required to ensure—
(a) the safety of any person; or
(b) that the effective execution of the search warrant is not
frustrated.
38—Copies of seized documents
(1) If an authorised person executing a warrant retains possession of a
document seized from a person in accordance with the warrant, the authorised
person must give that other person, within 21 days of the seizure, a copy of the
document certified as correct by the authorised person executing the
warrant.
(2) A copy of a document certified under subsection (1) shall be
received in all courts and all tribunals as evidence of equal validity to the
original.
39—Retention and return of seized documents or
things
(1) If an authorised person executing a warrant seizes a document or other
thing in accordance with the warrant, the authorised person must if he or she is
not a person employed by the AER, give the document or other thing seized to the
AER.
(2) The AER must take reasonable steps to return the document or thing to
the person from whom it was seized if the reason for its seizure no longer
exists.
(3) If the document or thing seized has not been returned within 3 months
after it was seized, the AER must take reasonable steps to return it
unless—
(a) proceedings for the purpose for which the document or thing was
retained have commenced within that 3 month period and those proceedings
(including any appeal) have not been completed; or
(b) a magistrate makes an order under section 40 extending the period
during which the document or thing may be retained.
40—Extension of period of retention of documents or
things seized
(1) The AER may apply to a magistrate—
(a) within 3 months after a document or other thing was seized in
accordance with a warrant; or
(b) if an extension has been granted under this section, before the end of
the period of the extension,
for an extension of the period for which the AER may retain the document or
thing but so that the total period of retention does not exceed 12
months.
(2) An application must be made before proceedings for the purpose for
which the document or thing was retained have been commenced.
(3) A magistrate may order such an extension if he or she is satisfied
that—
(a) it is in the interests of justice; and
(b) the total period of retention does not exceed 12 months; and
(c) retention of the document or other thing is necessary—
(i) for the purposes of an investigation into whether a breach of a
relevant provision has occurred; or
(ii) to enable evidence of a breach of a relevant provision to be obtained
for the purposes of a proceeding under this Law.
(4) If proceedings are commenced for the purpose for which the document or
thing was retained at any time before the expiry of the period specified in an
order under this section, the document or thing may be retained until those
proceedings (including any appeal) have been completed despite those proceedings
being completed after the period specified in the order.
(5) At least 7 days prior to the hearing of an application under this
section by a magistrate, notice of the application must be sent to the owner of
the document or thing described in the application.
41—Obstruction of persons authorised to
enter
A person must not, without reasonable excuse, obstruct or hinder an
authorised person in the exercise of a power under a search warrant under this
Division.
Maximum penalty:
(a) in the case of a natural person—$2 000;
(b) in the case of a body corporate—$10 000.
Division 3—General information gathering
powers
42—Power to obtain information and documents in
relation to performance and exercise of functions and
powers
(1) If the AER has reason to believe that a person is capable of providing
information or producing a document that the AER requires for the performance or
exercise of a function or power conferred on it under this Law or the Rules, the
AER may, by notice in writing, serve on that person a notice (a relevant
notice).
(2) A relevant notice may require the person to—
(a) provide to the AER, by writing signed by that person or, in the case
of a body corporate, by a competent officer of the body corporate, within the
time and in the manner specified in the notice, any information of the kind
referred to in subsection (1); or
(b) produce to the AER, or to a person specified in the notice acting on
its behalf, in accordance with the notice, any documents of the kind referred to
in subsection (1).
(3) A person on whom a relevant notice is served must comply with the
relevant notice unless the person has a reasonable excuse.
Maximum penalty:
(a) in the case of a natural person—$2 000;
(b) in the case of a body corporate—$10 000.
(4) A person must not, in purported compliance with a relevant notice,
provide information that the person knows is false or misleading in a material
particular.
Maximum penalty:
(a) in the case of a natural person—$2 000;
(b) in the case of a body corporate—$10 000.
(5) It is a reasonable excuse for the purposes of subsection (3) if
the person served the relevant notice is not capable of complying with that
notice.
(6) It is a reasonable excuse for a natural person to—
(a) fail to provide information of the kind referred to in
subsection (1) to the AER; or
(b) fail to produce a document of the kind referred to in
subsection (1) to the AER, or to a person specified in a relevant notice
acting on behalf of the AER,
if to do so might tend to incriminate the person, or make the person liable
to a criminal penalty, under a law of this jurisdiction or a law of another
participating jurisdiction.
(7) It is not a reasonable excuse for a person to—
(a) fail to provide information of the kind referred to in
subsection (1) to the AER; or
(b) fail to produce a document of the kind referred to in
subsection (1) to the AER, or to a person specified in a relevant notice
acting on behalf of the AER,
on the ground of any duty of confidence.
(8) This section does not require a person to—
(a) provide information that is the subject of legal professional
privilege; or
(b) produce a document the production of which would disclose information
that is the subject of legal professional privilege.
(9) This section does not require a person to—
(a) provide information that would disclose the contents of a document
prepared for the purposes of a meeting of the Cabinet or a committee of the
Cabinet of the Commonwealth or of a State or a Territory; or
(b) produce a document prepared for the purposes of a meeting of the
Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a
Territory; or
(c) provide information, or produce a document, that would disclose the
deliberations of the Cabinet or a committee of the Cabinet of the Commonwealth
or of a State or a Territory.
(10) A person incurs, by complying with a relevant notice, no liability
for breach of contract, breach of confidence or any other civil wrong.
Division 4—Regulatory information notices and
general regulatory information orders
Subdivision 1—Interpretation
43—Definitions
In this Division—
contributing service has the meaning given by
section 44;
scheme pipeline service provider means—
(a) a covered pipeline service provider; or
(b) a service provider who provides or intends to provide pipeline
services by means of an international pipeline to which a price regulation
exemption applies;
related provider means a person who supplies a contributing
service to a scheme pipeline service provider.
44—Meaning of contributing
service
(1) A contributing service is a service that the AER, in accordance with
this section, decides is a service that contributes in a material way to the
provision of a pipeline service by a scheme pipeline service provider.
(2) In deciding whether a service is a service that contributes in a
material way to the provision of a pipeline service by a scheme pipeline service
provider, the AER must have regard to—
(a) the nature and kind of the service;
(b) when the service was first supplied;
(c) the nature and extent of the contribution of the service relative
to—
(i) the pipeline service; and
(ii) all other services supplied by the scheme pipeline service
provider;
(d) whether the service was previously supplied—
(i) by the scheme pipeline service provider; or
(ii) directly or indirectly by an associate of the scheme pipeline service
provider;
(e) whether the service, together with other services, contributes in a
material way to the provision of pipeline services;
(f) any other matter specified under the Rules.
45—Meaning of general regulatory information
order
A general regulatory information order is an order made by the AER in
accordance with this Division that requires each scheme pipeline service
provider of a specified class, or each related provider of a specified class, to
do either or both of the following:
(a) provide to the AER the information specified in the order;
(b) prepare, maintain or keep information specified in the notice in a
manner and form specified in the order.
46—Meaning of regulatory information
notice
A regulatory information notice is a notice prepared and served by the AER
in accordance with this Division that requires the scheme pipeline service
provider, or a related provider, named in the notice to do either or both of the
following:
(a) provide to the AER the information specified in the notice;
(b) prepare, maintain or keep information specified in the notice in a
manner and form specified in the notice.
47—Division does not limit operation of information
gathering powers under Division 3
This Division does not limit the operation of Division 3.
Subdivision 2—Serving and making of regulatory
information instruments
48—Service and making of regulatory information
instrument
(1) Subject to this Division, the AER, if it considers it reasonably
necessary for the performance or exercise of its functions or powers under this
Law or the Rules, may—
(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.
49—Additional matters to be considered for related
provider regulatory information instruments
(1) This section applies if the AER is intending to—
(a) serve a regulatory information notice on a related provider;
or
(b) make a general regulatory information order that will apply to a class
of related providers.
(2) In addition to the matters set out in section 48(2), the AER, in
considering whether it is reasonably necessary to serve the regulatory
information notice, or make the general regulatory information order, must have
regard to—
(a) whether the scheme pipeline service provider being supplied a
contributing service by the related provider or related providers to which the
intended regulatory information instrument will apply can—
(i) provide the information to be specified in that instrument;
or
(ii) prepare, maintain or keep the information to be specified in the
particular manner and form to be specified in that instrument; and
(b) the extent to which the related provider or related providers to which
the intended regulatory information instrument will apply is, or are, supplying
a contributing service on a genuinely competitive basis; and
(c) the nature of any ownership or control between—
(i) the scheme pipeline service provider being supplied a contributing
service by a related provider to which the intended regulatory information
instrument will apply; and
(ii) that related provider; and
(d) the nature of any ownership or control as between different related
providers supplying the contributing service to the scheme pipeline service
provider; and
(e) any other matter the AER considers relevant.
(3) For the purposes of subsection (2)(b), in considering whether a
contributing service is being supplied on a genuinely competitive basis, the AER
may take into account—
(a) whether there is effective competition in the market for the supply of
the contributing service; and
(b) whether the related provider supplies the contributing service to a
scheme pipeline service provider under a contract, arrangement or understanding
entered into with that scheme pipeline service provider following a competitive
process for the awarding of the right to enter into that contract, arrangement
or understanding involving persons who were not associates of the scheme
pipeline service provider.
50—AER must consult before publishing a general
regulatory information order
The AER must, in accordance with the Rules, consult with the public on the
general regulatory information order it intends to make before it makes that
order.
Note—
See also section 65 about what the AER must and may do after receiving
submissions.
51—Publication requirements for general regulatory
information orders
(1) A general regulatory information order made under
section 48(1)(b) must be published on the AER's website as soon as
practicable after it is made.
(2) Notice of the making of a general regulatory information order must be
published in a newspaper circulating generally throughout Australia as soon as
practicable after it is made.
52—Opportunity to be heard before regulatory
information notice is served
(1) The AER, before serving a regulatory information notice,
must—
(a) notify, in writing, the scheme pipeline service provider, or the
related provider, on whom the AER intends to serve the regulatory information
notice of its intention to do so; and
(b) give the scheme pipeline service provider, or the related provider, a
draft of the regulatory information notice it intends to serve.
(2) If the regulatory information notice to be served is an urgent notice,
the AER must, in a notice under subsection (1)—
(a) identify the regulatory information notice to be served as an urgent
notice; and
(b) give its reasons, in writing, why the regulatory information notice to
be served is an urgent notice.
(3) A regulatory information notice is an urgent notice
if—
(a) under the notice the AER will require the scheme pipeline service
provider or related provider to provide information to the AER; and
(b) that requirement has arisen because the AER considers it must deal
with or address a particular matter or thing in order for it to make an AER
economic regulatory decision; and
(c) the AER considers that, having regard to the time within which it must
make that AER economic regulatory decision, the time within which the AER
requires the information is of the essence.
(4) A notice under subsection (1) must—
(a) invite the scheme pipeline service provider, or the related provider,
to make written representations to the AER as to whether the AER should serve
the regulatory information notice on them; and
(b) specify the period within which the scheme pipeline service provider,
or the related provider, may make the representations.
(5) The period that must be specified in accordance with
subsection (4) must be—
(a) in the case of an urgent notice to be served—a period of not
less than 5 business days and not more than 10 business days calculated from the
date of the notice under subsection (1);
(b) in all other cases—a period of at least 20 business days
calculated from the date of the notice under subsection (1).
(6) The AER must consider the written representations made in accordance
with a notice under subsection (1) before making its decision in accordance
with this Division to serve the regulatory information notice.
Subdivision 3—Form and content of regulatory
information instruments
53—Form and content of regulatory information
instrument
(1) A regulatory information instrument—
(a) must specify the information required to be—
(i) provided to the AER;
(ii) prepared, maintained or kept in the particular manner and form
specified in the instrument; and
(b) may specify the manner and form in which the information described in
the instrument is required to be—
(i) provided to the AER;
(ii) prepared, maintained or kept; and
(c) must state the reasons of the AER for requiring the information
described in the instrument to be—
(i) provided to the AER;
(ii) prepared, maintained or kept in the particular manner and form
specified in the instrument; and
(d) in the case of an instrument requiring information to be provided to
the AER, must specify when the information must be provided.
(2) In the case of a regulatory information notice, the notice must name
the scheme pipeline service provider or the related provider to whom it
applies.
(3) In the case of a general regulatory information order, the order must
specify the class of scheme pipeline service provider, or related provider, to
whom the order applies.
54—Further provision about the information that may
be described in a regulatory information instrument
Without limiting section 53(1)(a), the information that may be
required to be provided to the AER, or to be prepared, maintained or kept, may
include—
(a) historic, current and forecast information (including financial
information);
(b) information that is or may be derived from other information in the
possession or control of the scheme pipeline service provider or the related
provider to whom the instrument applies;
(c) information to enable the AER to verify whether the scheme pipeline
service provider to whom the instrument applies is or has been complying with
Chapter 4;
(d) information to enable the AER to verify compliance with any
requirements for the allocation of costs between natural gas services
under—
(i) the Rules; or
(ii) an applicable access arrangement.
55—Further provision about manner in which
information must be provided to AER or kept
Without limiting section 53(1)(b), a regulatory information instrument
may specify the information specified in the instrument—
(a) be provided to the AER, or prepared, maintained or kept, on an annual
basis or some other basis, including on the occurrence of a specified event or
state of affairs;
(b) be provided to the AER, or prepared, maintained or kept, in accordance
with specified Rules;
(c) be provided to the AER, or prepared, maintained or kept, in accordance
with any document, code, standard, rule, specification or method formulated,
issued, prescribed or published by the AER or any person, authority or body
whether—
(i) wholly or partially or as amended by the instrument; or
(ii) as formulated, issued, prescribed or published at the time the
instrument is served or published or at any time before the instrument is served
or published; or
(iii) as amended from time to time;
Example—
The AER may require a scheme pipeline service provider to provide
information in a form and manner that complies with relevant accounting
standards.
(d) be verified by way of statutory declaration by an officer of the
scheme pipeline service provider, or of a related provider, to whom the
instrument applies;
(e) be audited—
(i) by a class of person specified in the instrument before it is provided
to the AER; and
(ii) at the expense of the scheme pipeline service provider or related
provider to whom the instrument applies.
Subdivision 4—Compliance with regulatory
information instruments
56—Compliance with regulatory information notice
that is served
On being served a regulatory information notice, a person named in the
notice must comply with the notice.
57—Compliance with general regulatory information
order
(1) On publication of a general regulatory information order in accordance
with section 51(1), a person who is a member of the class of person to
which a general regulatory information order applies must comply with the
order.
(2) Subsection (1) does not apply to a person who has been given an
exemption under section 58.
58—Exemptions from compliance with general
regulatory information order
(1) The AER may exempt a person, or a class of person, from complying with
section 57—
(a) unconditionally or on specified conditions; or
(b) wholly or to the extent as is specified in the exemption.
(2) An exemption under this section must be in writing.
59—Assumptions where there is non-compliance with
regulatory information instrument
(1) This section applies if—
(a) under a regulatory information instrument the AER—
(i) requires a scheme pipeline service provider to provide information to
the AER for the purpose of enabling the AER to make an AER economic regulatory
decision relating to the scheme pipeline service provider; or
(ii) requires a related provider to provide information to the AER that is
relevant to the making of an AER economic regulatory decision relating to a
scheme pipeline service provider; and
(b) the scheme pipeline service provider or related
provider—
(i) does not provide the information to the AER in accordance with the
applicable regulatory information instrument; or
(ii) provides information that is insufficient (when compared to what was
requested under the applicable regulatory information instrument).
(2) Without limiting sections 56 and 57 and despite anything to the
contrary in this Law or the Rules, the AER—
(a) may make the AER economic regulatory decision on the basis of the
information the AER has at the time it makes that decision; and
(b) in making that decision, may make reasonable assumptions (including
assumptions adverse to the interests of the scheme pipeline service provider) in
respect of the matters the information required under the regulatory information
instrument would have addressed had that information been provided as
required.
Subdivision 5—General
60—Providing to AER false and misleading
information
A person must not, in purported compliance with a regulatory information
instrument requiring the person to provide information to the AER, provide
information to the AER that the person knows is false or misleading in a
material particular.
Maximum penalty:
(a) in the case of a natural person—$2 000;
(b) in the case of a body corporate—$10 000.
61—Person cannot rely on duty of confidence to
avoid compliance with regulatory information instrument
(1) A person must not refuse to comply with a regulatory information
instrument on the ground of any duty of confidence.
(2) A person incurs, by complying with a regulatory information
instrument, no liability for breach of contract, breach of confidence or any
other civil wrong.
62—Legal professional privilege not
affected
A regulatory information instrument, and sections 56 and 57, are not
to be taken as requiring a person to—
(a) provide to the AER information that is the subject of legal
professional privilege; or
(b) produce a document to the AER the production of which would disclose
information that is the subject of legal professional privilege.
63—Protection against
self-incrimination
(1) It is a reasonable excuse for a natural person to whom section 56
applies not to comply with a regulatory information notice served on the person
requiring the person to provide information to the AER if to do so might tend to
incriminate the person, or make the person liable to a criminal penalty, under a
law of this jurisdiction or another participating jurisdiction.
(2) It is a reasonable excuse for a natural person to whom section 57
applies not to comply with a general regulatory information order made requiring
the person to provide information to the AER if to do so might tend to
incriminate the person, or make the person liable to a criminal penalty, under a
law of this jurisdiction or another participating jurisdiction.
Division 5—Service provider performance
reports
64—Preparation of service provider performance
reports
(1) Subject to this section, the AER may prepare a report on the financial
performance or operational performance of 1 or more scheme pipeline service
providers in providing pipeline services by means of a scheme
pipeline.
Note—
The AER may only prepare a report under subsection (1) if the
preparation of the report will or is likely to contribute to the achievement of
the national gas objective: see section 28.
(2) A report prepared under this section may—
(a) deal with the financial or operational performance of the scheme
pipeline service provider in relation to—
(i) complying with pipeline service standards; and
(ii) standards relating to the provision of pipeline services to users or
end users; and
(iii) the profitability of scheme pipeline service providers in providing
pipeline services; and
(b) if the AER considers it appropriate, deal with the performance of the
scheme pipeline service provider in relation to other matters or things if that
performance is directly related to the performance or exercise by the AER of an
AER economic regulatory function or power.
(3) A report prepared under this section may include—
(a) information provided to the AER by a person in compliance with a
regulatory information instrument; and
(b) in the case of a report dealing with the financial performance of 1 or
more scheme pipeline service providers, a comparison of the profitability of the
scheme pipeline service providers to which the report relates from the provision
of pipeline services by them.
(4) Before preparing a report under this section, the AER must, in
accordance with the Rules, consult with the persons or bodies specified by the
Rules.
(5) The AER may publish a report prepared under this section on its
website.
Division 6—Miscellaneous
matters
65—Consideration by the AER of submissions or
comments made to it under this Law or the Rules
If, under this Law or the Rules, the AER publishes a notice inviting
submissions in relation to the making of an AER economic regulatory decision,
the AER, in making the decision—
(a) must consider every submission it receives within the period specified
in the notice; and
(b) may, but need not, consider a submission it receives after the period
specified in the notice expires.
66—Use of information provided under a notice under
Division 3 or a regulatory information instrument
The AER may use information provided to it by a person in compliance with a
notice under section 42 or a regulatory information instrument for any
purpose connected with the performance or exercise of a function or power of the
AER under this Law or the Rules.
67—AER to inform certain persons of decisions not
to investigate breaches, institute proceedings or serve infringement
notices
(1) If the AER is given information by any person in relation to a breach
or a possible breach of this Law, the Regulations or the Rules by a person
but—
(a) decides not to investigate that breach or possible breach;
or
(b) following an investigation, decides not to—
(i) institute any proceedings under Chapter 8 in respect of that breach or
possible breach; or
(ii) serve an infringement notice in accordance with Chapter 8 Part 7 in
respect of that breach or possible breach,
the AER must notify that person of that decision in writing.
(2) This section does not apply if the person gave the information to the
AER anonymously.
68—AER enforcement guidelines
(1) The AER may prepare guidelines about the matters it will have regard
to before—
(a) making an application under section 231; or
(b) serving an infringement notice under section 277.
(2) The AER must publish guidelines prepared under subsection (1) on
its website.
Part 2—Functions and powers of the Australian
Energy Market Commission
Division 1—General
69—Functions and powers of the
AEMC
(1) The AEMC has the following functions and powers:
(a) the Rule making functions and powers conferred on it under this Law
and the Regulations;
(b) the market development functions conferred on it under this Law and
the Rules;
(c) any other functions and powers conferred on it under this Law and the
Rules.
(2) The AEMC has power to do all things necessary or convenient to be done
for or in connection with the performance of its functions.
70—Delegations
Any delegation by the AEMC under section 20 of the Australian Energy
Market Commission Establishment Act 2004 of South Australia extends to,
and has effect for the purposes of, this Law, the Regulations and the
Rules.
71—Confidentiality
Section 24 of the Australian Energy Market Commission Establishment
Act 2004 of South Australia has effect for the purposes of this Law,
the Regulations and the Rules as if it formed part of this Law.
Note—
See also Chapter 10 Part 2 Division 2.
72—AEMC must have regard to national gas
objective
In performing or exercising any function or power under this Law, the
Regulations or the Rules, the AEMC must have regard to the national gas
objective.
73—AEMC must have regard to MCE statements of
policy principles in relation to Rule making and reviews
The AEMC must have regard to any relevant MCE statement of policy
principles—
(a) in making a Rule; or
(b) in conducting a review under section 83.
Division 2—Rule making functions and powers of the
AEMC
74—Subject matter for National Gas
Rules
(1) Subject to this Division, the AEMC, in accordance with this Law and
the Regulations, may make Rules, to be known, collectively, as the "National Gas
Rules", for or with respect to—
(a) regulating—
(i) access to pipeline services;
(ii) the provision of pipeline services;
(iii) the collection, use, disclosure, copying, recording, management and
publication of information in relation to natural gas services;
(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.
75—Rules relating to MCE or Ministers of
participating jurisdictions require MCE consent
The AEMC must not, without the consent of the MCE, make a Rule that confers
a right or function, or imposes an obligation, on the MCE or a Minister of a
participating jurisdiction.
Note—
The term function is defined in clause 10 of Schedule 2
to this Law to include "duty".
76—AEMC must not make Rules that create criminal
offences or impose civil penalties for breaches
The AEMC must not make a Rule that—
(a) creates an offence for a breach of a provision of the Rules;
or
(b) provides for a criminal penalty or civil penalty for a breach of a
provision of the Rules.
77—Documents etc applied, adopted and incorporated
by Rules to be publicly available
(1) The AEMC must make publicly available—
(a) every standard, rule, specification, method or document (however
described) formulated, issued, prescribed or published by any person, authority
or body that is applied, adopted or incorporated by a Rule; and
(b) if a standard, rule, specification, method or document (however
described) formulated, issued, prescribed or published by any person, authority
or body is applied, adopted or incorporated by a Rule as amended from time to
time—any amendment to that standard, rule, specification, method or
document.
(2) For the purposes of subsection (1), the AEMC makes a standard,
rule, specification, method or document (however described) formulated, issued,
prescribed or published by any person, authority or body applied, adopted or
incorporated by any Rule publicly available if the AEMC—
(a) publishes the standard, rule, specification, method or document on the
AEMC's website; or
(b) specifies a place from which the standard, rule, specification, method
or document may be obtained or purchased (as the case requires).
Division 3—Committees, panels and working groups of
the AEMC
78—Establishment of committees, panels and working
groups
The AEMC may establish committees, panels and working groups
to—
(a) provide advice on specified aspects of the AEMC's functions;
or
(b) undertake any other activity in relation to the AEMC's functions as is
specified by the AEMC.
Division 4—MCE directed
reviews
79—MCE directions
(1) The MCE may give a written direction to the AEMC that the AEMC conduct
a review into—
(a) any matter relating to a market for gas (including services provided
in a market for gas); or
(b) any matter relating to access to pipelines or to pipeline services
provided by means of pipelines; or
(c) the operation and effectiveness of the Rules; or
(d) any matter relating to the Rules; or
(e) the effectiveness of competition in a market for gas for the purpose
of giving advice about whether to retain, remove or reintroduce price controls
on prices for retail gas services.
(2) A direction given to the AEMC under this section is binding on the
AEMC and must be complied with despite anything to the contrary in the
Rules.
(3) A direction given under this section must be published in the South
Australian Government Gazette.
(4) The AEMC must cause a direction given under this section to be
published on its website.
80—Terms of reference
(1) The terms of reference of a MCE directed review will be as specified
in the direction given by the MCE.
Example—
The terms of reference may require a MCE directed review to be
conducted—
(a) about a specific matter within a specified time; or
(b) whenever a specified event occurs; or
(c) on an annual basis.
(2) Without limiting subsection (1), the MCE may in its direction to
the AEMC do 1 or more of the following:
(a) require the AEMC to give a report on a MCE directed review to the MCE
within a specified period;
(b) require the AEMC to make the report on a MCE directed review publicly
available or available to specified persons or bodies;
(c) require the AEMC to make a draft report publicly available or
available to specified persons or bodies during a MCE directed review;
(d) require the AEMC to consider specified matters in the conduct of a MCE
directed review;
(e) require the AEMC to have specified objectives in the conduct of a MCE
directed review which need not be limited by the national gas
objective;
(f) require the AEMC to assess a particular matter in relation to services
provided in a market for gas against specified criteria or a specified
methodology;
(g) require the AEMC—
(i) to assess a particular matter in relation to services provided in a
market for gas; and
(ii) to develop appropriate and relevant criteria, or an appropriate and
relevant methodology, for the purpose of the required assessment;
(h) give the AEMC other specific directions in respect of the conduct of a
MCE directed review.
81—Notice of MCE directed
review
(1) The AEMC must publish notice of a MCE directed review on its website
and in a newspaper circulating generally throughout Australia.
(2) The AEMC must publish a further such notice if a term of reference or
a requirement or direction relating to the MCE directed review is
varied.
82—Conduct of MCE directed
review
Subject to any requirement or direction of the MCE, a MCE directed
review—
(a) may be conducted in such manner as the AEMC considers appropriate;
and
(b) may (but need not) involve public hearings.
Division 5—Other reviews
83—Rule reviews by the AEMC
(1) The AEMC may conduct a review into—
(a) the operation and effectiveness of the Rules; or
(b) any matter relating to the Rules.
(2) A review—
(a) may be conducted in such manner as the AEMC considers appropriate;
and
(b) may (but need not) involve public hearings.
(3) During the course of a review, the AEMC may—
(a) consult with any person or body that it considers
appropriate;
(b) establish working groups to assist it in relation to any aspect, or
any matter or thing that is the subject of, the review;
(c) commission reports by other persons on its behalf on any aspect, or
matter or thing that is the subject of, the review;
(d) publish discussion papers or draft reports.
(4) At the completion of a review, the AEMC must—
(a) give a copy of the report to the MCE; and
(b) publish a report or a version of a report from which confidential
information has been omitted in accordance with section 331.
Division 6—Miscellaneous
matters
84—AEMC must publish and make available up to date
versions of Rules
The AEMC must, at all times—
(a) maintain, on its website, a copy of the National Gas Rules, as in
force from time to time; and
(b) make copies of the National Gas Rules, as in force from time to time,
available to the public for inspection at its offices during business
hours.
85—Fees
(1) The AEMC may charge a fee specified, or a fee calculated in accordance
with a formula or methodology specified, in the Regulations for services
provided by it in performing or exercising any of its functions or powers under
this Law, the Regulations or the Rules.
(2) The fee must not be such as to amount to taxation.
86—Immunity from personal liability of AEMC
officials
(1) No personal liability attaches to an AEMC official for an act or
omission in good faith in the performance or exercise, or purported performance
or exercise of a function or power under this Law, the Regulations or the
Rules.
(2) A liability that would, but for subsection (1), lie against an
AEMC official lies instead against the AEMC.
(3) In this section—
AEMC official means—
(a) a member of the AEMC;
(b) the chief executive of the AEMC;
(c) a member of staff appointed by the AEMC.
Part 3—Functions and powers of Ministers of
participating jurisdictions
87—Functions and powers of Minister of this
participating jurisdiction under this Law
(1) The Minister of this participating jurisdiction has the functions and
powers conferred on him or her under this Law, the Regulations or the
Rules.
(2) The Minister of this participating jurisdiction has power to do all
things necessary or convenient to be done for or in connection with the
performance of his or her functions.
(3) In this section—
Minister of this participating jurisdiction means the
Minister that administers the Act of this jurisdiction that applies this Law as
a law of this jurisdiction.
88—Functions and powers of Commonwealth Minister
under this Law
(1) The Commonwealth Minister has the functions and powers conferred on
him or her under this Law, the Regulations or the Rules.
(2) The Commonwealth Minister has power to do all things necessary or
convenient to be done for or in connection with the performance of his or her
functions.
Part 4—Functions and powers of the
NCC
89—Functions and powers of NCC under this
Law
(1) The NCC has the functions and powers conferred on it under this Law,
the Regulations or the Rules.
(2) The NCC has power to do all things necessary or convenient to be done
for or in connection with the performance of its functions.
90—Confidentiality
(1) The NCC must take all reasonable measures to protect from unauthorised
use or disclosure information given to it in confidence in, or in connection
with, the performance of its functions or the exercise of its powers under this
Law, the Regulations or the Rules.
(2) For the purposes of subsection (1), the disclosure of information
as required or permitted by this Law, a law of the Commonwealth, a State or
Territory is taken to be authorised use and disclosure of the
information.
(3) Disclosing information to 1 of the following is authorised use and
disclosure of the information:
(a) the ACCC;
(b) the AER;
(c) the ERA;
(d) the AEMC;
(e) any staff or consultant assisting a body mentioned in
paragraph (a) to (d) in performing its functions or exercising its
powers;
(f) any other person or body prescribed by the Regulations for the purpose
of this paragraph.
(4) A person or body to whom information is disclosed under
subsection (3) may use the information for any purpose connected with the
performance of the functions, or the exercise of the powers, of the person or
body.
(5) The NCC may impose conditions to be complied with in relation to
information disclosed under subsection (3).
(6) For the purposes of subsection (1), the use or disclosure of
information by a person for the purposes of performing the person’s
functions, or exercising the person’s powers, as—
(a) a Councillor or a person referred to in section 29M of the Trade
Practices Act 1974 of the Commonwealth; or
(b) a person who is authorised to perform or exercise a function or power
of, or on behalf of, the NCC,
is taken to be authorised use and disclosure of the information.
(7) Regulations made for the purposes of this section may specify uses of
information and disclosures of information that are authorised uses and
authorised disclosures for the purposes of this section.
(8) Nothing in any of the above subsections limits—
(a) anything else in any of those subsections; or
(b) what may otherwise constitute, for the purposes of
subsection (1), authorised use or disclosure of information.
(9) In this section—
Councillor has the same meaning as in the Trade Practices
Act 1974 of the Commonwealth.
Note—
See also Chapter 10 Part 2 Division 2.
Part 5—Functions and powers of
Tribunal
91—Functions and powers of Tribunal under this
Law
(1) The Tribunal has the functions and powers conferred on it under
Chapter 8 Part 5 and any Regulations made for the purposes of that
Division.
(2) The Tribunal has power to do all things necessary or convenient to be
done for or in connection with the performance of its functions.
Chapter 3—Coverage and classification of
pipelines
Part 1—Coverage of pipelines
Division 1—Coverage
determinations
92—Application for recommendation that a pipeline
be a covered pipeline
(1) Any person may apply for a determination that a pipeline be a covered
pipeline (a coverage determination).
(2) An application for a coverage determination—
(a) is to be made to the NCC in accordance with the Rules; and
(b) must contain the information required by the Rules; and
(c) must be accompanied by the fee prescribed by the Regulations (if
any).
93—Application to be dealt with in accordance with
the Rules
Subject to section 94, on receiving an application under
section 92 the NCC must deal with it in accordance with the
Rules.
94—NCC may defer consideration of application in
certain cases
(1) This section applies if an application under section 92 is made
in relation to a proposed pipeline after—
(a) an application has been made to the AER under the Rules for the
approval, by the AER, of the tender process for the construction and operation
of the proposed pipeline as a competitive tender process; or
(b) a tender approval decision has been made in respect of the tender
process for the construction and operation of the proposed pipeline.
(2) The NCC may defer consideration of whether to make a recommendation in
respect of the application until—
(a) the application for the approval, by the AER, of the tender process
for the construction and operation of the proposed pipeline as a competitive
tender process has been rejected by the AER under the Rules; or
(b) the tender approval decision—
(i) has been revoked under the Rules; or
(ii) has lapsed as provided under the Rules.
95—NCC coverage recommendation
(1) Subject to sections 94 and 96, the NCC must recommend to the
relevant Minister that the pipeline the subject of the
application—
(a) be a covered pipeline; or
(b) not be a covered pipeline.
Note—
See also Chapter 3 Part 2 Division 1 Subdivision 1.
(2) A recommendation under this section must—
(a) be made in accordance with this Law and the Rules; and
(b) be made within the time specified by the Rules; and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the Rules.
(3) A recommendation under this section may recommend an outcome different
from the outcome sought in the application under section 92.
Example—
An applicant may apply for a determination that the whole of a pipeline be
a covered pipeline. The NCC may recommend that only a part of the pipeline the
subject of the application be covered or may recommend that the pipeline not be
covered.
(4) A recommendation under this section must be delivered to the relevant
Minister without delay.
96—NCC must not make coverage recommendation if
tender approval decision becomes irrevocable
Despite anything to the contrary in this Division, the NCC—
(a) must not make a recommendation under section 95 if the pipeline
is the subject of a tender approval decision that—
(i) has not lapsed as provided under the Rules; or
(ii) is not revoked under the Rules; and
(b) must, for the purposes of paragraph (a), treat the application as
having never been made.
97—Principles governing the making of a coverage
recommendation
(1) In making a coverage recommendation, the NCC—
(a) must give effect to the pipeline coverage criteria; and
(b) in deciding whether or not the pipeline coverage criteria are
satisfied must have regard to the national gas objective.
(2) The NCC gives effect to the pipeline coverage criteria as
follows:
(a) if the NCC is satisfied that all the pipeline coverage criteria are
satisfied in relation to the pipeline—the recommendation must be in favour
of the pipeline being a covered pipeline;
(b) if the NCC is not satisfied that all the pipeline coverage criteria
are satisfied in relation to the pipeline—the recommendation must be
against the pipeline being a covered pipeline.
98—Initial classification decision to be made as
part of recommendation
(1) The NCC must, as part of a coverage recommendation, classify the
pipeline the subject of an application under section 92 as a transmission
pipeline or a distribution pipeline (an initial classification
decision). In doing so, the NCC must apply the pipeline classification
criterion.
(2) The NCC must as part of an initial classification
decision—
(a) if it classifies the pipeline the subject of the application as a
transmission pipeline—determine whether the transmission pipeline is also
a cross boundary transmission pipeline;
(b) if it classifies the pipeline the subject of the application as a
distribution pipeline—determine whether the distribution pipeline is also
a cross boundary distribution pipeline.
(3) The NCC must also determine, as part of an initial classification
decision, the participating jurisdiction with which the pipeline the subject of
the application under section 92 is most closely connected if the NCC
determines the pipeline is also a cross boundary distribution pipeline. In doing
so, the NCC must apply the pipeline classification criterion.
99—Relevant Minister's determination on
application
(1) On receiving a coverage recommendation, the relevant Minister must
decide whether to make a coverage determination in respect of the pipeline to
which the recommendation relates.
(2) The relevant Minister must use his or her best endeavours to make the
decision within 20 business days after receiving the coverage
recommendation.
(3) If the relevant Minister is unable to make the decision within the
period specified under subsection (2), he or she must make the decision as
soon as reasonably practicable after the end of the specified period.
(4) The relevant Minister, for the purpose of making the decision, may
request submissions or comments in relation to an application under
section 92.
(5) A coverage determination or a decision not to make a coverage
determination must—
(a) be made in accordance with this Law and the Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
(6) In the case of a coverage determination, the determination must
specify the date the determination takes effect.
(7) A coverage determination may have an outcome different to the
outcome—
(a) sought in the application under section 92; or
(b) of the coverage recommendation.
Example—
An applicant may apply for a determination that the whole of a pipeline be
a covered pipeline. The NCC may recommend that only a part of the pipeline the
subject of the application be covered. The relevant Minister may determine that
different parts of the pipeline to those recommended by the NCC be
covered.
100—Principles governing the making of a coverage
determination or decision not to do so
(1) In deciding whether to make a coverage determination under this
Division, the relevant Minister—
(a) must give effect to the pipeline coverage criteria; and
(b) in deciding whether or not the pipeline coverage criteria are
satisfied in relation to the pipeline—
(i) must have regard to the national gas objective; and
(ii) must have regard to the coverage recommendation; and
(iii) must take into account any submissions or comments he or she
receives on a request under section 99(4); and
(iv) may take into account any relevant submissions and comments made to
the NCC by the public under the Rules in relation to the application.
(2) The relevant Minister gives effect to the pipeline coverage criteria
as follows:
(a) if the relevant Minister is satisfied that all the pipeline coverage
criteria are satisfied in relation to the pipeline—the Minister must make
a coverage determination;
(b) if the relevant Minister is not satisfied that all the pipeline
coverage criteria are satisfied in relation to the pipeline—the Minister
must not make a coverage determination.
101—Operation and effect of coverage
determination
The pipeline the subject of a coverage determination becomes a covered
pipeline—
(a) when the coverage determination takes effect; and
(b) continues to be a covered pipeline while the coverage determination
remains in effect.
Division 2—Coverage revocation
determinations
102—Application for a determination that a pipeline
no longer be a covered pipeline
(1) Any person may apply for a determination that a covered pipeline no
longer be a covered pipeline (a coverage revocation
determination).
(2) An application for a coverage revocation
determination—
(a) is to be made to the NCC in accordance with the Rules; and
(b) must contain the information required by the Rules; and
(c) must be accompanied by the fee prescribed by the Regulations (if
any).
103—Application to be dealt with in accordance with
the Rules
On receiving an application under section 102, the NCC must deal with
it in accordance with the Rules.
104—NCC coverage revocation
recommendation
(1) The NCC must make a recommendation to the relevant Minister as to
whether the covered pipeline the subject of the application should continue to
be a covered pipeline.
Note—
See also section 119.
(2) A recommendation under this section must—
(a) be made in accordance with this Law and the Rules; and
(b) be made within the time specified by the Rules; and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the Rules.
(3) A recommendation under this section may recommend an outcome different
from the outcome sought in the application under section 102.
Example—
A service provider may apply for a determination that revokes the coverage
of the covered pipeline by means of which the provider provides pipeline
services. The NCC may recommend that the coverage of the covered pipeline be
only partly revoked or not be revoked.
(4) A recommendation under this section must be delivered to the relevant
Minister without delay.
105—Principles governing the making of a coverage
revocation recommendation
(1) In making a coverage revocation recommendation, the
NCC—
(a) must give effect to the pipeline coverage criteria; and
(b) in deciding whether or not the pipeline coverage criteria are
satisfied must have regard to the national gas objective.
(2) The NCC gives effect to the pipeline coverage criteria as
follows:
(a) if the NCC is satisfied that all the pipeline coverage criteria are
satisfied in relation to the pipeline—the recommendation must be in favour
of the pipeline continuing to be a covered pipeline;
(b) if the NCC is not satisfied that all the pipeline coverage criteria
are satisfied in relation to the pipeline—the recommendation must be in
favour of the pipeline no longer being a covered pipeline.
106—Relevant Minister's determination on
application
(1) On receiving a coverage revocation recommendation, the relevant
Minister must decide whether to make a coverage revocation determination in
respect of the pipeline to which the recommendation relates.
(2) The relevant Minister must use his or her best endeavours to make the
decision within 20 business days after receiving the coverage revocation
recommendation.
(3) If the relevant Minister is unable to make the decision within the
period specified under subsection (2), he or she must make the decision as
soon as reasonably practicable after the end of the specified period.
(4) The relevant Minister, for the purpose of making the decision, may
request submissions or comments in relation to an application under
section 102.
(5) A coverage revocation determination or a decision not to make a
coverage revocation determination must—
(a) be made in accordance with this Law and the Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
(6) In the case of a coverage revocation determination, the determination
must specify the date the determination takes effect.
(7) A coverage revocation determination may have an outcome different to
the outcome—
(a) sought in the application under section 102; or
(b) of the coverage revocation recommendation.
Example—
A service provider may apply for a determination that revokes the coverage
of the covered pipeline by means of which the provider provides pipeline
services. The NCC may recommend that the coverage of the covered pipeline be
only partly revoked. The relevant Minister may make a determination that revokes
coverage of different parts of the covered pipeline to those parts in relation
to which the NCC recommended coverage be revoked.
107—Principles governing the making of a coverage
revocation determination or decision not to do so
(1) In deciding whether to make a coverage revocation determination under
this Division, the relevant Minister—
(a) must give effect to the pipeline coverage criteria; and
(b) in deciding whether or not the pipeline coverage criteria are
satisfied in relation to the pipeline—
(i) must have regard to the national gas objective; and
(ii) must have regard to the coverage revocation recommendation;
and
(iii) must take into account any submissions or comments he or she
receives on a request under section 106(4); and
(iv) may take into account any relevant submissions and comments made to
the NCC by the public under the Rules in relation to the application.
(2) The relevant Minister gives effect to the pipeline coverage criteria
as follows:
(a) if the relevant Minister is satisfied that all the pipeline coverage
criteria are satisfied in relation to the pipeline—the Minister must not
make a coverage revocation determination;
(b) if the relevant Minister is not satisfied that all the pipeline
coverage criteria are satisfied in relation to the pipeline—the Minister
must make a coverage revocation determination.
108—Operation and effect of coverage revocation
determination
The pipeline the subject of a coverage revocation determination ceases to
be a covered pipeline when the coverage revocation determination takes
effect.
Part 2—Light regulation of covered pipeline
services
Division 1—Making of light regulation
determinations
Subdivision 1—Decisions when pipeline is not a
covered pipeline
109—Application of Subdivision
This Subdivision applies if—
(a) an application has been made under section 92 for a coverage
determination; and
(b) the pipeline the subject of the application is not a designated
pipeline.
110—NCC's decision on light regulation of pipeline
services
(1) The NCC must decide whether to make a determination that the pipeline
services provided or to be provided by means of the pipeline are light
regulation services (a light regulation determination).
(2) The NCC must make its decision under
subsection (1)—
(a) at the same time as it makes the coverage recommendation;
and
(b) within the time it must make the coverage recommendation.
(3) A light regulation determination or a decision not to make a light
regulation determination must—
(a) be made in accordance with this Law and the Rules; and
Note—
For example, see section 122.
(b) be attached to the coverage recommendation; and
(c) contain the information required by the Rules.
Note—
If the NCC makes a light regulation determination, and the relevant
Minister makes the coverage determination, the service provider may submit a
limited access arrangement in respect of the light regulation services to the
AER for approval: see section 116.
Subdivision 2—Decisions when pipeline is a covered
pipeline
111—Application of Subdivision
This Subdivision applies if a service provider provides pipelines
services—
(a) by means of a covered pipeline that is not a designated pipeline;
and
(b) to which an applicable access arrangement approved or made under a
full access arrangement decision applies.
112—Application
(1) A service provider may apply to the NCC for a determination that
pipeline services provided by the service provider by means of a covered
pipeline be light regulation services (a light regulation
determination).
(2) An application must—
(a) be in accordance with the Rules; and
(b) contain the information required by the Rules.
(3) An application may only be made in respect of all of the pipeline
services provided by means of the covered pipeline.
113—Application to be dealt with in accordance with
the Rules
On receiving an application under section 112, the NCC must deal with
it in accordance with the Rules.
114—NCC's decision on light regulation of pipeline
services
(1) The NCC must decide whether to make a light regulation determination
within—
(a) 4 months after receiving an application under section 112;
or
(b) if the Rules specify a later period, that period.
(2) A light regulation determination or a decision not to make a light
regulation determination must—
(a) be made in accordance with this Law and the Rules; and
Note—
For example, see section 122.
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
Note—
If the NCC makes a light regulation determination, the service provider may
submit a limited access arrangement in respect of the light regulation services
to the AER for approval: see section 116.
Subdivision 3—Operation and effect of light
regulation determinations
115—When light regulation determinations take
effect
(1) A light regulation determination takes effect—
(a) in the case of a light regulation determination made under Subdivision
1—on the day the relevant coverage determination takes effect;
(b) in the case of a light regulation determination made under Subdivision
2—60 business days after the light regulation determination is
made.
(2) A light regulation determination continues in operation
until—
(a) it is revoked by operation of section 117(5); or
(b) a decision under section 119(2) or 120 takes effect; or
(c) it is revoked by operation of section 123(2); or
(d) it is revoked by operation of section 124.
116—Submission of limited access arrangement for
light regulation services
(1) A service provider may, in respect of light regulation services the
service provider provides or intends to provide, submit a limited access
arrangement to the AER for approval by the AER under the Rules.
(2) If the service provider chooses to submit a limited access arrangement
in accordance with subsection (1), the limited access arrangement
must—
(a) be submitted in accordance with the Rules; and
(b) contain the information required by the Rules.
(3) A service provider must submit to the AER, for approval by the AER
under the Rules, revisions to an applicable access arrangement that is a limited
access arrangement and that applies to the light regulation services the
provider provides—
(a) in accordance with the Rules; and
(b) within the period specified by the Rules.
Division 2—Revocation of light regulation
determinations
Subdivision 1—On advice from service
providers
117—Advice by service provider that light
regulation services should cease to be light regulation
services
(1) A service provider may advise the NCC that it wishes that the pipeline
services it provides cease to be light regulation services.
(2) An advice under subsection (1) must be in writing.
(3) On receiving an advice under subsection (1), the NCC must,
without delay, publish notice of receipt of that advice—
(a) on its website; and
(b) in a newspaper circulating generally throughout Australia.
(4) On publication of a notice under subsection (3) the service
provider must comply with section 132.
(5) The light regulation determination applying to the pipeline services
is, by force of this section, revoked on the same day that an access arrangement
that applies to the pipeline services provided by that service provider is, as
the case requires, approved or made under a full access arrangement
decision.
(6) On the revocation of the light regulation determination the pipeline
services to which the light regulation determination applied cease to be light
regulation services.
Subdivision 2—On application by persons other than
service providers
118—Application (other than by service provider)
for revocation of light regulation determinations
(1) A person (other than the service provider who provides light
regulation services) may apply to the NCC for the revocation of a light
regulation determination relating to those services.
(2) An application under subsection (1) must—
(a) be in accordance with the Rules; and
(b) contain the information required by the Rules.
119—Decisions on applications made around time of
applications for coverage revocation determinations
(1) This section applies if an application is made under section 118
and—
(a) there is an application for a coverage revocation determination under
section 102 under consideration—
(i) in respect of the covered pipeline by means of which the light
regulation services the subject of the application under section 118 are
provided; and
(ii) in respect of which the NCC has not made a coverage revocation
recommendation; or
(b) an application for a coverage revocation determination is made under
section 102 in respect of the covered pipeline by means of which the light
regulation services the subject of the application under section 118 are
provided—
(i) after the application under section 118; but
(ii) before the NCC makes its decision in respect of the application under
section 118.
(2) Despite anything to the contrary in this Part, the NCC must make its
decision in respect of the application under this section.
(3) On receiving the application under section 118, the NCC must
decide whether to revoke the light regulation determination.
(4) The NCC must make its decision under
subsection (3)—
(a) at the same time as it makes the coverage revocation recommendation;
and
(b) within the time it must make the coverage revocation
recommendation.
(5) A decision under subsection (3) must—
(a) be made in accordance with this Law and the Rules; and
Note—
For example, see section 122.
(b) be attached to the coverage revocation recommendation; and
(c) contain the information required by the Rules.
120—NCC decision on application where no
application for a coverage revocation recommendation
(1) This section applies if—
(a) an application is made under section 118; and
(b) no application for a coverage revocation determination in respect of
the covered pipeline (by means of which the light regulation services the
subject of the application under section 118) are provided is made before
the NCC makes its decision in respect of the application under
section 118.
(2) Subject to this section, on receiving an application under
section 118 the NCC must deal with it in accordance with the
Rules.
(3) The NCC must decide whether to revoke a light regulation determination
within—
(a) 4 months after receiving an application under section 118;
or
(b) if the Rules specify a later period, that period.
(4) A decision under this section must—
(a) be made in accordance with this Law and the Rules; and
Note—
For example, see section 122.
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
121—Operation and effect of decision of NCC under
this Division
(1) Subject to section 124, on the making of a decision under
section 119(2) or 120 revoking a light regulation determination, the
service provider must comply with section 132.
(2) However, the decision under section 119(2) or 120 revoking a
light regulation determination does not take effect until an access arrangement
that applies to the pipeline services provided by that service provider is
approved or made under a full access arrangement decision.
(3) The effect of a decision under section 119(2) or 120 revoking a
light regulation determination is that the pipeline services to which the light
regulation determination applied cease to be light regulation
services.
Division 3—Principles governing light regulation
determinations
122—Principles governing the making or revoking of
light regulation determinations
(1) In deciding whether to make a light regulation determination under
Division 1 or to revoke a light regulation determination under Division 2, the
NCC must consider—
(a) the likely effectiveness of the forms of regulation provided for under
this Law and the Rules to regulate the provision of the pipeline services (the
subject of the application) to promote access to pipeline services;
and
(b) the effect of the forms of regulation provided for under this Law and
the Rules on—
(i) the likely costs that may be incurred by an efficient service
provider; and
(ii) the likely costs that may be incurred by efficient users and
efficient prospective users; and
(iii) the likely costs of end users.
Note—
The forms of regulation provided for under this Law and the Rules to
regulate the provision of the pipeline services by means of a covered pipeline
are—
(a) making a light regulation determination so that those services become
light regulation services;
(b) not making a light regulation determination so that those services are
regulated under a full access arrangement decision that approves or makes the
applicable access arrangement that applies to those services.
(2) In doing so, the NCC—
(a) must have regard to the national gas objective; and
(b) must have regard to the form of regulation factors; and
(c) may have regard to any other matters it considers relevant.
Division 4—Revocation if coverage determination not
made
123—Light regulation determination revoked if
coverage determination not made
(1) This section applies if—
(a) a light regulation determination has been made in respect of pipeline
services; but
(b) the pipeline by means of which those services will be provided does
not become a covered pipeline because the relevant Minister, contrary to a
coverage recommendation recommending coverage, makes a decision not to make a
coverage determination.
(2) The light regulation determination is, by force of this section,
revoked on the same day as the relevant Minister's decision not to make a
coverage determination takes effect.
Division 5—Effect of pipeline ceasing to be covered
pipeline
124—Light regulation services cease to be such
services on cessation of coverage of pipeline
If a pipeline by means of which light regulation services are provided
ceases to be a covered pipeline because of a coverage revocation
determination—
(a) the light regulation determination applying to the light regulation
services provided by means of that pipeline is, by force of this section,
revoked on the same day the coverage revocation determination takes effect;
and
(b) to avoid doubt, the light regulation services to which that
determination applied cease to be light regulation services on the same
day.
Division 6—AER reviews into designated
pipelines
125—AER reviews
(1) The MCE may request the AER to conduct a review into, and report to it
as to, whether a pipeline should continue to be a designated pipeline.
(2) A service provider that provides pipeline services by means of a
designated pipeline may request the AER to conduct a review into, and report to
the MCE as to, whether that pipeline should continue to be a designated
pipeline.
(3) A request under subsection (1) or (2) must be in
writing.
(4) On receiving a request under this section, the AER must conduct a
review as to whether the pipeline the subject of the request should continue to
be a designated pipeline.
(5) In conducting a review under this section, the AER
must—
(a) have regard to—
(i) the national gas objective; and
(ii) whether there has been a material change in competition in a market
served by the designated pipeline; and
(b) consult, in accordance with the Rules, with the public.
(6) On the completion of a review under this section, the AER must prepare
a report and—
(a) give the report to the MCE; and
(b) publish the report on its website.
(7) The AER must also give a copy of the report to the service provider
that has requested the review.
Part 3—Coverage of pipelines the subject of tender
process
126—Tender approval pipelines deemed to be covered
pipelines
(1) A pipeline to which a tender approval decision relates is deemed to be
a covered pipeline on and from the date the tender approval decision becomes
irrevocable by operation of the Rules.
(2) The pipeline ceases to be a covered pipeline—
(a) if there is an applicable access arrangement that applies to the
pipeline services provided, or that are to be provided by means of that
pipeline—when that arrangement expires; or
(b) when a coverage revocation determination made in respect of that
pipeline takes effect.
Note—
Under the Rules, the NCC will—
(a) classify the pipeline to be constructed and operated in accordance
with an approved tender process as a cross boundary transmission pipeline, cross
boundary distribution pipeline, transmission pipeline or distribution pipeline;
and
(b) determine the relevant Minister for the purposes of that
pipeline.
Part 4—Coverage following approval of voluntary
access arrangement
127—Certain pipelines become covered pipelines on
approval of voluntary access arrangement
(1) This section applies if—
(a) a service provider voluntarily submits to the AER for approval by the
AER, under the Rules, a full access arrangement that will apply to the pipeline
services provided, or that are to be provided, by means of a pipeline;
and
(b) that pipeline is not a covered pipeline.
(2) The pipeline is deemed to be a covered pipeline on the day the
voluntarily submitted full access arrangement takes effect as an applicable
access arrangement.
(3) The pipeline ceases to be a covered pipeline—
(a) when the applicable access arrangement that applies to the pipeline
services provided, or that are to be provided, expires; or
(b) when a coverage revocation determination is made in respect of that
pipeline takes effect.
Note—
Under the Rules, the NCC will—
(a) classify the pipeline (by means of which the pipeline services to
which the arrangement relates are provided) as a cross boundary transmission
pipeline, cross boundary distribution pipeline, transmission pipeline or
distribution pipeline; and
(b) determine the relevant Minister for the purposes of that
pipeline.
Part 5—Reclassification of
pipelines
128—Service provider may apply for reclassification
of pipeline
(1) A service provider may, in respect of a pipeline by means of which the
service provider provides pipeline services, apply to the NCC for the pipeline
to be reclassified as—
(a) if the pipeline is a transmission pipeline—a distribution
pipeline; or
(b) if the pipeline is a distribution pipeline—a transmission
pipeline.
(2) The application must be accompanied by the fee prescribed by the
Regulations (if any).
129—Reclassification decision
(1) The NCC must make a decision (a reclassification
decision) within—
(a) 4 months after receiving an application under section 128;
or
(b) if the Rules specify a later period, that period.
(2) A reclassification decision must—
(a) be made in accordance with this Law and the Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
(3) In making a reclassification decision, the NCC must have regard
to—
(a) the national gas objective; and
(b) the pipeline classification criterion.
(4) The NCC must also as part of the reclassification
decision—
(a) if it reclassifies the pipeline the subject of the application as a
transmission pipeline—determine whether the transmission pipeline is also
a cross boundary transmission pipeline;
(b) if it reclassifies the pipeline the subject of the application as a
distribution pipeline—determine whether the distribution pipeline is also
a cross boundary distribution pipeline.
(5) If, under subsection (4), the NCC determines that a pipeline
reclassified as a distribution pipeline is also a cross boundary distribution
pipeline, the NCC must determine the participating jurisdiction with which the
cross boundary distribution pipeline is most closely connected. In doing so, the
NCC must have regard to the jurisdictional determination criteria.
130—Effect of reclassification
decision
On the making of a reclassification decision—
(a) the pipeline is, in accordance with the decision, reclassified as
either a transmission pipeline or distribution pipeline; and
(b) the relevant Minister in respect of the pipeline is the relevant
Minister as provided under this Law.
Chapter 4—General requirements for provision of
covered pipeline services
Part 1—General duties for provision of pipeline
services by covered pipelines
131—Service provider must be legal entity of a
specified kind to provide pipeline services by covered
pipeline
A covered pipeline service provider must not provide a pipeline service by
means of a covered pipeline unless the service provider is—
(a) a legal entity registered under the Corporations Act 2001 of
the Commonwealth; or
(b) a foreign company; or
(c) a corporation established by or under a law of this jurisdiction or
another participating jurisdiction, whether or not that corporation has been
established for a public purpose; or
(d) the Crown in right of this jurisdiction or another participating
jurisdiction; or
(e) a person referred to in paragraph (a) to (d) and that person
provides a pipeline service by means of a covered pipeline together with another
person referred to in paragraph (a) to (d).
132—Submission of full access arrangement or
revisions to applicable full access arrangements
(1) A covered pipeline service provider must submit to the AER, for
approval by the AER under the Rules, a full access arrangement or revisions to
an applicable access arrangement that is a full access arrangement, in respect
of the pipeline services the provider provides or intends to
provide—
(a) in the circumstances specified by the Rules; and
(b) within the period of time specified by the Rules.
(2) Subsection (1) does not apply—
(a) if the pipeline services that are, or are intended to be, provided by
the service provider light regulation services; or
(b) to the extent the Rules provide subsection (1) is not to
apply.
Note—
A service provider who provides or intends to provide pipeline services by
means of an international pipeline to which a price regulation applies must
submit a limited access arrangement to the AER for approval: see
section 168.
133—Preventing or hindering
access
(1) A person who is—
(a) a covered pipeline service provider; or
(b) a person who—
(i) is a party to an agreement with a service provider relating to a
pipeline service provided by means of a covered pipeline; or
(ii) as a result of an access determination is entitled to a pipeline
service provided by means of a covered pipeline; or
(c) an associate of a service provider or a person referred to in
paragraph (b),
must not engage in conduct for the purpose of preventing or hindering the
access of another person to a pipeline service provided by means of the covered
pipeline.
(2) For the purposes of subsection (1), a person is deemed to engage
in conduct for a particular purpose if—
(a) the conduct is or was engaged in for that purpose or for a purpose
that includes, or included, that purpose; and
(b) that purpose is or was a substantial purpose.
(3) A person may be taken to have engaged in conduct for the purpose
referred to in subsection (1) even though, after all the evidence has been
considered, the existence of that purpose is ascertainable only by inference
from the conduct of the person or of any other person or from other relevant
circumstances.
(4) Subsection (3) does not limit the manner in which the purpose of
a person may be established for the purpose of subsection (1).
(5) In this section—
(a) a reference to engaging in conduct is a reference to doing or refusing
to do any act, including refusing to supply a pipeline service or, without
reasonable grounds, limiting or disrupting a pipeline service, or making, or
giving effect to, a provision of, a contract or arrangement, arriving at, or
giving effect to, a provision of, an understanding or requiring the giving of,
or giving, a covenant;
(b) a reference to refusing to do an act includes a reference
to—
(i) refraining (otherwise than inadvertently) from doing that act;
or
(ii) making it known that that act will not be done.
(6) Subsection (1) does not apply to conduct engaged in in accordance
with an agreement, if the agreement was in force on 30 March 1995.
Example—
An example of conduct which may be prohibited if the requisite purpose is
established is refusing to supply, or limiting or disrupting the supply of, a
pipeline service to a user or prospective user for technical or safety reasons
without reasonable grounds.
134—Supply and haulage of natural
gas
(1) If a producer states terms and conditions (whether or not including
the price) (the first terms) on which the producer offers to
supply natural gas through a covered pipeline that is in operation at the time
of the offer to a person at a place other than the exit flange of the producer's
processing plant, the producer must, on request by the person, state terms and
conditions (including the price, if the price was included in the first terms)
(the second terms) on which the producer will supply natural gas
to the person at the exit flange.
(2) If there is a difference in the price stated in the first terms and
the second terms, the producer must include in the second terms a statement of
the reasons for the difference.
(3) If the producer offers to supply natural gas to a person at a place
other than the exit flange of the producer's processing plant, the producer
must, on request, offer to supply the gas at the exit flange on the terms and
conditions (including price) stated in accordance with this section.
135—Covered pipeline service provider must comply
with queuing requirements
A covered pipeline service provider must comply with the queuing
requirements of an applicable access arrangement.
136—Covered pipeline service provider providing
light regulation services must not price discriminate
(1) A covered pipeline service provider must not engage in price
discrimination when providing light regulation services.
(2) Subsection (1) does not apply if the covered pipeline service
provider engages in price discrimination that is conducive to efficient service
provision.
Part 2—Structural and operational separation
requirements (ring fencing)
Division 1—Interpretation
137—Definitions
In this Part—
additional ring fencing requirement has the meaning given by
section 143(1);
compliance date means the date that is 6 months after the
date a pipeline becomes a covered pipeline;
marketing staff has the meaning given by
section 138;
related business means the business of producing, purchasing
or selling natural gas or processable gas, but does not include purchasing or
selling of natural gas or processable gas to the extent
necessary—
(a) for the safe and reliable operation of a covered pipeline;
or
(b) to enable a service provider to provide balancing services in
connection with a covered pipeline.
138—Meaning of marketing staff
(1) A person is marketing staff of—
(a) a covered pipeline service provider, if the person—
(i) is an officer, employee, consultant or independent contractor or agent
of the covered pipeline service provider; and
(ii) is directly involved in the sale, marketing or advertising of
pipeline services (whether or not the person is also involved in other
activities);
(b) an associate of a covered pipeline service provider, if the
person—
(i) is an officer, employee, consultant or independent contractor or agent
of the associate; and
(ii) is directly involved in the sale, marketing or advertising of
pipeline services (whether or not the person is also involved in other
activities).
(2) A person 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.
Division 2—Minimum ring fencing
requirements
139—Carrying on of related businesses
prohibited
On and after the compliance date, a covered pipeline service provider must
not carry on a related business.
140—Marketing staff and the taking part in related
businesses
(1) On and after the compliance date, a covered pipeline service provider
must ensure that none of its marketing staff are officers, employees,
consultants, independent contractors or agents of an associate of the covered
pipeline service provider that takes part in a related business.
(2) On and after the compliance date, a covered pipeline service provider
must ensure that none of its officers, employees, consultants, independent
contractors or agents are marketing staff of an associate of the covered
pipeline service provider that takes part in a related business.
141—Accounts that must be prepared, maintained and
kept
On and after the compliance date, a covered pipeline service provider must
prepare, maintain and keep—
(a) separate accounts in respect of pipeline services provided by means of
every covered pipeline owned, operated or controlled by the covered pipeline
service provider; and
(b) a consolidated set of accounts in respect of the whole of the business
of the covered pipeline service provider.
Division 3—Additional ring fencing
requirements
142—Division does not limit operation of Division
2
This Division does not limit Division 2.
143—AER ring fencing
determinations
(1) Subject to this Division and subject to and in accordance with the
Rules, the AER may make a determination requiring a covered pipeline service
provider or associate of a covered pipeline service provider named in the
determination to do, or refrain from doing, a thing specified in the
determination (an additional ring fencing requirement).
(2) In specifying an additional ring fencing requirement the AER must have
regard to the following principles:
(a) in the case where 1 part of the business of a covered pipeline service
provider (business unit A) is providing pipeline services to
another part of the business of the covered pipeline service provider
(business unit B), the covered pipeline service provider must
ensure that business unit A provides the pipeline services to business unit B as
if business unit B were a separate unrelated entity;
(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.
144—AER to have regard to likely compliance costs
of additional ring fencing requirements
In making an AER ring fencing determination the AER must have regard to the
likely costs that may be incurred by, as the case requires—
(a) an efficient covered pipeline service provider; or
(b) an efficient associate of a covered pipeline service
provider,
in complying with an additional ring fencing requirement specified in the
determination.
145—Types of ring fencing requirements that may be
specified in an AER ring fencing determination
Without limiting what may be specified as an additional ring fencing
requirement, the AER, in an AER ring fencing determination, may require a
covered pipeline service provider to—
(a) ensure that its business and business activities are conducted,
structured and arranged in the particular manner specified;
Example 1—
An AER ring fencing determination may require the covered pipeline service
provider to ensure that persons employed or engaged by the covered pipeline
service provider in relation to the provision of pipeline services are not also
associates, or employed by associates, of the covered pipeline service provider
that take part in a related business and how this must be effected.
Example 2—
An AER ring fencing determination may require the covered pipeline service
provider to put in place electronic, physical and procedural security measures
in respect of the offices and computer systems of the covered pipeline service
provider, and of the offices and computer systems of its associates, so that
certain specified employees or persons engaged by the covered pipeline service
provider do not have access to certain specified information.
(b) in a specified manner, disclose, to the AER and to the public,
specified information in a specified manner about its business operations,
structure and arrangements, and its business activities.
Division 4—AER ring fencing
exemptions
146—Exemptions from minimum ring fencing
requirements
(1) A covered pipeline service provider may, in accordance with the Rules,
apply to the AER for an exemption from—
(a) the requirement under section 139; or
(b) a requirement under section 140; or
(c) the requirement under section 141.
(2) On receiving an application under subsection (1), the AER,
subject to and in accordance with the Rules, may exempt a covered pipeline
service provider from—
(a) the requirement under section 139; or
(b) a requirement under section 140; or
(c) the requirement under section 141.
Division 5—Associate contracts
147—Service provider must not enter into or give
effect to associate contracts that have anti-competitive
effect
A covered pipeline service provider must not—
(a) enter into an associate contract that has; or
(b) vary an associate contract so that contract, as varied, has;
or
(c) give effect to a provision of an associate contract that
has,
the purpose, or would have or be likely to have the effect, of
substantially lessening competition in a market for natural gas services
unless—
(d) that associate contract is an approved associate contract;
or
(e) that provision is contained in an approved associate
contract.
148—Service provider must not enter into or give
effect to associate contracts inconsistent with competitive parity
rule
(1) A covered pipeline service provider must not—
(a) enter into an associate contract that is; or
(b) vary an associate contract so that contract, as varied, is;
or
(c) give effect to a provision of an associate contract that is,
inconsistent with the competitive parity rule unless—
(d) that associate contract is an approved associated contract;
or
(e) that provision is contained in an approved associate
contract.
(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.
Chapter 5—Greenfields pipeline
incentives
Part 1—Interpretation
149—Definitions
In this Chapter—
excluded infrastructure, in relation to a pipeline, means
tanks, reservoirs, machinery, equipment or other infrastructure that forms part
of the pipeline but is classified by the Rules as excluded infrastructure for
the purposes of this Law;
greenfields pipeline project means a project for the
construction of—
(a) a pipeline that is to be structurally separate from any existing
pipeline (whether or not it is to traverse a route different from the route of
an existing pipeline); or
(b) a major extension to an existing pipeline that is not a covered
pipeline; or
(c) a major extension to a covered pipeline by means of which light
regulation services are provided if that extension is exempted by the AER under
section 19.
150—International pipeline to be a transmission
pipeline for purposes of Chapter
An international pipeline is, for the purposes of this Chapter, a
transmission pipeline.
Part 2—15-year no-coverage
determinations
151—Application for 15-year no-coverage
determination for proposed pipeline
(1) If a greenfields pipeline project is proposed, or has commenced, the
service provider may, before the pipeline is commissioned, apply for a
determination (a 15-year no-coverage determination) exempting the
pipeline from being a covered pipeline.
(2) If a price regulation exemption has been granted for an international
pipeline, an application for a 15-year no-coverage determination for the
pipeline may be made by the service provider—
(a) before the pipeline is commissioned; or
(b) after the pipeline is commissioned but before the term of the price
regulation exemption comes to an end.
(3) An application for a 15-year no-coverage
determination—
(a) is to be made to the NCC; and
(b) must include a description of the pipeline that meets the requirements
specified by the Rules; and
(c) must contain the information required by the Rules; and
(d) need not describe, or include details of, excluded infrastructure;
and
(e) must be accompanied by the fee prescribed by the Regulations (if
any).
(4) In this section—
service provider includes a person that intends to be a
service provider.
152—Application to be dealt with in accordance with
the Rules
On receiving an application under section 151, the NCC must deal with
it in accordance with the Rules.
153—No-coverage recommendation
(1) The NCC must make a recommendation recommending to the relevant
Minister that the pipeline the subject of the application—
(a) be exempted from being a covered pipeline for a period of 15 years;
or
(b) not be exempted from being a covered pipeline for a period of
15 years.
(2) A recommendation under this section must—
(a) be made in accordance with this Law and the Rules; and
(b) be made within the time specified by the Rules; and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the Rules.
(3) A recommendation under this section may recommend an outcome different
to the outcome sought in the application under section 151.
Example—
An applicant may apply for a 15-year no-coverage determination in relation
to the whole pipeline. The NCC may recommend that only a part of the pipeline
the subject of the application be subject to a 15-year no-coverage
determination.
(4) A recommendation under this section must be delivered to the relevant
Minister without delay.
154—Principles governing the making of a
no-coverage recommendation
(1) In making a no-coverage recommendation, the NCC—
(a) must give effect to the pipeline coverage criteria; and
(b) in deciding whether or not the pipeline coverage criteria are
satisfied must have regard to the national gas objective.
(2) The NCC gives effect to the pipeline coverage criteria as
follows:
(a) if the NCC is satisfied that all the pipeline coverage criteria are
satisfied in relation to the pipeline the recommendation must be against making
a 15-year no-coverage determination;
(b) if the NCC is not satisfied that all the pipeline coverage criteria
are satisfied in relation to the pipeline the recommendation must be in favour
of making a 15-year no coverage determination.
155—Initial classification decision to be made as
part of recommendation
(1) If the pipeline the subject of an application under section 151
is not an international pipeline, the NCC must, as part of a no-coverage
recommendation, classify the pipeline as a transmission pipeline or a
distribution pipeline (an initial classification decision). In
doing so, the NCC must apply the pipeline classification criterion.
(2) The NCC must as part of an initial classification
decision—
(a) if it classifies the pipeline the subject of the application as a
transmission pipeline—determine whether the transmission pipeline is also
a cross boundary transmission pipeline; or
(b) if it classifies the pipeline the subject of the application as a
distribution pipeline—determine whether the distribution pipeline is also
a cross boundary distribution pipeline.
(3) The NCC must also determine, as part of an initial classification
decision, the participating jurisdiction with which the pipeline the subject of
the application under section 151 is most closely connected if the NCC
determines the pipeline is also a cross boundary distribution pipeline. In doing
so, the NCC must have regard to the jurisdictional determination
criteria.
156—Relevant Minister's determination on
application
(1) On receiving a no-coverage recommendation the relevant Minister must
decide whether or not to make a 15-year no-coverage determination in respect of
the pipeline to which the recommendation relates.
(2) The relevant Minister must use his or her best endeavours to make the
decision within 30 business days after receiving the coverage
recommendation.
(3) If the relevant Minister is unable to make the decision within the
period specified under subsection (2), he or she must make the decision as
soon as reasonably practicable after the end of the specified period.
(4) The relevant Minister, for the purpose of making the decision, may
request submissions or comments in relation to an application under
section 151.
(5) A 15-year no-coverage determination or a decision not to make a
15-year no-coverage determination must—
(a) be made in accordance with this Law and the Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
(6) A 15-year no-coverage determination may have an outcome different to
the outcome—
(a) sought in the application under section 151; or
(b) of the no-coverage recommendation.
Example—
An applicant may apply for a 15-year no-coverage determination in relation
to the whole pipeline. The NCC may recommend that only a part of the pipeline
the subject of the application be subject to a 15-year no-coverage
determination. The relevant Minister may make a 15-year no-coverage
determination that applies to different parts of the pipeline to those
recommended by the NCC be subject to the determination.
157—Principles governing the making of a 15-year
no-coverage determination or decision not to do so
(1) In deciding whether to make a 15-year no-coverage determination under
this Part, the relevant Minister—
(a) must give effect to the pipeline coverage criteria; and
(b) in deciding whether or not the pipeline coverage criteria are
satisfied in relation to the pipeline—
(i) must have regard to the national gas objective; and
(ii) must have regard to the no-coverage recommendation; and
(iii) must take into account any submissions or comments he or she
receives on a request under section 156(4); and
(iv) may take into account any relevant submissions and comments made to
the NCC by the public under the Rules in relation to the application.
(2) The relevant Minister gives effect to the pipeline coverage criteria
as follows:
(a) if the Minister is satisfied that all the pipeline coverage criteria
are satisfied in relation to the pipeline the Minister must not make a 15-year
no-coverage determination;
(b) if the Minister is not satisfied that all the pipeline coverage
criteria are satisfied in relation to the pipeline the Minister must make a
15-year no-coverage determination.
158—Effect of 15-year no-coverage
determination
(1) A 15-year no-coverage determination—
(a) takes effect on and from the date specified in the determination;
and
(b) continues in operation for a period of 15 years from the commissioning
of the pipeline.
(2) An application for coverage of a pipeline to which a 15-year
no-coverage determination applies can be made before the end of the period for
which the determination remains in operation only if the coverage sought in the
application is to commence from, or after, the end of that period.
159—Consequences of Minister deciding against
making 15-year no-coverage determination for international
pipeline
(1) If—
(a) the Commonwealth Minister decides against making a 15-year no-coverage
determination for an international pipeline; and
(b) the applicant asks the Commonwealth Minister to treat the application
as an application for a price regulation exemption,
the Commonwealth Minister may treat the application as an application for a
price regulation exemption under Chapter 5 Part 3.
(2) If the Commonwealth Minister decides to treat an application for a
15-year no-coverage determination as an application for a price regulation
exemption, the Commonwealth Minister may—
(a) refer the application to the NCC for a recommendation under Chapter 5
Part 3; or
(b) proceed to determine the application without a recommendation under
Chapter 5 Part 3.
Part 3—Price regulation
exemptions
Division 1—Application for price regulation
exemption
160—Application for price regulation
exemption
(1) If a greenfields pipeline project for construction of an international
pipeline is proposed, or has commenced, the service provider may, before the
pipeline is commissioned, apply for a price regulation exemption for the
pipeline.
(2) An application for a price regulation exemption—
(a) is to be made to the NCC; and
(b) must include a description of the pipeline that meets the requirements
specified by the Rules; and
(c) must contain the information required by the Rules; and
(d) need not describe, or include details of, excluded infrastructure;
and
(e) must be accompanied by the fee prescribed by the Regulations (if
any).
(3) In this section—
service provider includes a person that intends to be a
service provider.
Division 2—Recommendations by
NCC
161—Application to be dealt with in accordance with
the Rules
On receiving an application under section 160, the NCC must deal with
it in accordance with the Rules.
162—NCC's recommendation
(1) The NCC must make a recommendation to the Commonwealth Minister as to
whether the Minister should grant a price regulation exemption for the pipeline
the subject of the application.
(2) A recommendation under this section must—
(a) be made in accordance with this Law and the Rules; and
(b) be made within the time specified by the Rules; and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the Rules.
(3) A recommendation under this section must be delivered to the
Commonwealth Minister without delay.
163—General principle governing NCC's
recommendation
(1) In making its recommendation on an application for a price regulation
exemption, the NCC must weigh the benefits to the public of granting the
exemption against the detriments to the public.
(2) In doing so, the NCC—
(a) must have regard to the national gas objective with particular
reference to—
(i) the implications of the exemption for relevant markets (including the
effect on market power); and
(ii) other possible effects on the public interest; and
(b) may have regard to any other relevant matter.
Division 3—Making and effect of price regulation
exemption
164—Making of price regulation
exemption
(1) On receiving the NCC's recommendation under section 162, the
Commonwealth Minister must decide whether to grant a price regulation
exemption.
(2) The Commonwealth Minister must use his or her best endeavours to make
the decision within 10 business days after receiving the NCC's
recommendation.
(3) If the Commonwealth Minister is unable to make the decision within the
period specified under subsection (2), he or she must make the decision as
soon as reasonably practicable after the end of the specified period.
(4) A decision under this section must—
(a) be made in accordance with this Law and the Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the Rules.
165—Principles governing the making of a price
regulation exemption
(1) In deciding whether to make a decision to grant a price regulation
exemption, the Commonwealth Minister must weigh the benefits to the public of
granting the exemption against the detriments to the public.
(2) In doing so, the Commonwealth Minister—
(a) must have regard to the national gas objective with particular
reference to—
(i) the implications of the exemption for relevant markets (including the
effect on market power); and
(ii) other possible effects of the exemption on the public interest;
and
(b) must have regard to the NCC's recommendation; and
(c) may take into account any relevant submissions and comments made to
the NCC by the public under the Rules in relation to the application;
and
(d) may have regard to any other relevant matter.
166—Conditions applying to a price regulation
exemption
A price regulation exemption granted under this Part is subject to the
following conditions:
(a) the service provider must publish on its website prices for the
provision of pipeline services by means of the international pipeline;
and
(b) the service provider's limited access arrangement and the register of
spare capacity are to be accessible on the service provider's website;
and
(c) the service provider—
(i) must, as and when required by the AER or the Commonwealth Minister,
provide information requested by the AER or the Commonwealth Minister (in a
manner and form determined or approved by the AER or the Commonwealth Minister)
on access negotiations and the result of access negotiations; and
(ii) must report annually to the AER and the Commonwealth Minister (in a
manner and form approved by the AER or the Commonwealth Minister) on access
negotiations and the result of access negotiations.
Note—
See also sections 168 and 169(3).
167—Effect of price regulation
exemption
(1) If a price regulation exemption is granted, then for a period of 15
years from the commissioning of the pipeline, the services provided by means of
the pipeline are not subject to price or revenue regulation under this Law or
the Rules.
(2) A price regulation exemption is, however, ineffective unless a limited
access arrangement, approved by the AER, is in force in relation to the relevant
pipeline.
Note—
See also section 168.
(3) If, while a price regulation exemption remains in force, the
Commonwealth Minister makes a 15-year no-coverage determination for the
pipeline, the 15-year no-coverage determination supersedes the price regulation
exemption (which is then terminated) and remains in force for the balance of the
period for which the exemption was granted.
(4) An application for coverage of a pipeline to which a price regulation
exemption applies can only be made before the end of the period of exemption if
the coverage sought in the application is to commence from, or after, the end of
that period.
Division 4—Limited access
arrangements
168—Limited access arrangements for pipeline
services provided by international pipeline to which a price regulation
exemption applies
(1) A service provider must, within 60 business days after the grant of a
price regulation exemption, submit a limited access arrangement to the AER for
approval by the AER under the Rules.
(2) A limited access arrangement must—
(a) be submitted in accordance with the Rules; and
(b) contain the information required by the Rules.
(3) A service provider must submit to the AER, for approval by the AER
under the Rules, revisions to an applicable access arrangement that is a limited
access arrangement and that applies to the pipeline service to which that
arrangement applies—
(a) in accordance with the Rules; and
(b) within the period specified by the Rules.
Division 5—Other matters
169—Other obligations to which service provider is
subject
(1) The service provider for a pipeline to which a price regulation
exemption applies is subject to the following provisions as if the pipeline were
a covered pipeline:
(a) Chapter 4 Part 1 (except sections 132 and 136); and
(b) Chapter 4 Part 2.
(2) The service provider for a pipeline to which a price regulation
exemption applies must comply with any Rules that—
(a) relate to the facilitation of, and request for access to, pipeline
services provided by means of that pipeline; and
(b) apply to the service provider or a class of person of which the
service provider is a member.
(3) A service provider must ensure compliance with conditions to which the
price regulation exemption is subject.
Note—
See also section 160.
170—Service provider must not price discriminate in
providing international pipeline services
(1) A service provider must not, when providing pipeline
services—
(a) by means of an international pipeline to which a price regulation
exemption applies; and
(b) to which a limited access arrangement applies,
engage in price discrimination.
(2) Subsection (1) does not apply if the service provider engages in
price discrimination that is conducive to efficient service provision.
Part 4—Extended or modified application of
greenfields pipeline incentive
171—Requirement for conformity between pipeline
description and pipeline as constructed
(1) Subject to this Part—
(a) a greenfields pipeline incentive applies to the pipeline as described
in the relevant pipeline description; and
(b) if the pipeline, as constructed, materially differs from the pipeline
as described in the relevant pipeline description, the incentive does not attach
to the pipeline and the service provider is not entitled to its
benefit.
(2) In determining whether a pipeline, as constructed, materially differs
from the relevant pipeline description, excluded infrastructure is not to be
taken into account.
(3) In this section—
relevant pipeline description means a description of a
pipeline required to be included in an application under section 151 or
160.
172—Power of relevant Minister to amend pipeline
description
(1) The relevant Minister may, on application by the service provider for
a pipeline for which a greenfields pipeline incentive has been granted, amend
the relevant pipeline description.
(2) An amendment cannot, however, be made under this section after the
pipeline has been commissioned.
(3) The relevant Minister—
(a) may refer an application for amendment to a pipeline description to
the NCC for advice; and
(b) if the amendment sought involves a substantial change to the pipeline
description as it currently exists must refer the application to the NCC for
advice.
(4) In giving its advice to the relevant Minister, the NCC must have
regard to the criteria that were relevant to the grant of the greenfields
pipeline incentive.
(5) In deciding whether to make the amendment sought, the relevant
Minister—
(a) must have regard to the criteria that were relevant to the grant of
the greenfields pipeline incentive; and
(b) if the application has been referred to the NCC for advice must
consider the NCC's advice.
Part 5—Early termination of greenfields pipeline
incentive
173—Greenfields pipeline incentive may
lapse
(1) A greenfields pipeline incentive lapses if the pipeline for which it
was granted is not commissioned within 3 years after the incentive was
granted.
(2) The Regulations may, in a particular case, extend the period of 3
years referred to in subsection (1).
174—Revocation by consent
The relevant Minister may, at the request of the service provider, revoke a
greenfields pipeline incentive.
175—Revocation for
misrepresentation
The relevant Minister may, on application by the AER, revoke a greenfields
pipeline incentive on the ground that—
(a) the applicant misrepresented a material fact on the basis of which the
application was granted; or
(b) the applicant failed to disclose material information that the
applicant was required to disclose under this Chapter.
176—Revocation for breach of condition to which a
price regulation exemption is subject
The Commonwealth Minister, on application by the AER, may revoke a price
regulation exemption on the ground that the service provider has breached a
condition to which the price regulation exemption is subject.
177—Exhaustive provision for termination of
greenfields pipeline incentive
A greenfields pipeline incentive does not terminate, and cannot be revoked,
before the end of its term except as provided in this Part.
Chapter 6—Access disputes
Part 1—Interpretation and
application
178—Definitions
In this Chapter—
access dispute means a dispute between a user or prospective
user and a service provider about 1 or more aspects of access to a pipeline
service provided by means of a scheme pipeline;
access dispute pipeline means a scheme pipeline used or that
could be used to provide a pipeline service that is the subject of an access
dispute;
dispute hearing means a hearing conducted by the dispute
resolution body for the purpose of making an access determination;
party, in relation to an access dispute, has the meaning
given by section 183.
179—Chapter does not limit how disputes about
access may be raised or dealt with
This Chapter is not to be taken to limit how a dispute about access to a
pipeline service may be raised or dealt with.
180—No price or revenue regulation for access
disputes relating to international pipeline services
An access dispute notified under this Chapter in relation to a pipeline
service provided by means of an international pipeline to which a price
regulation exemption applies must not be resolved under this Chapter on
terms—
(a) regulating the price at which a service is to be provided by the
service provider; or
(b) limiting the revenue to be derived by the service provider from the
provision of a service.
Part 2—Notification of access
dispute
181—Notification of access
dispute
(1) Subject to this section, if a prospective user or user is unable to
agree with a service provider about 1 or more aspects of access to a pipeline
service provided or to be provided by means of a scheme pipeline, the
prospective user, user or service provider may notify the dispute resolution
body, in writing, that an access dispute exists.
Note—
A dispute about access to a light regulation service may be notified under
this section because light regulation services are pipeline services provided by
means of a covered pipeline (which is a scheme pipeline).
(2) A notification must be accompanied by the fee prescribed by the
Regulations (if any).
(3) On receiving a notification under subsection (1), the dispute
resolution body must notify, in writing, of the access dispute—
(a) the service provider, if a prospective user or user (as the case
requires) notified the dispute resolution body of the access dispute under
subsection (1);
(b) the prospective user or user (as the case requires), if the service
provider notified the dispute resolution body of the access dispute under
subsection (1).
182—Withdrawal of notification
(1) The person who notified the dispute resolution body of an access
dispute under section 181(1) may withdraw that notification at any time
before the dispute resolution body makes an access determination in respect of
that access dispute.
(2) The notification must be withdrawn by notice in writing.
(3) If the notification is withdrawn, it must be taken, for the purposes
of this Chapter, never to have been given.
183—Parties to an access
dispute
The parties to an access dispute are—
(a) the person notifying the dispute resolution body of an access dispute
under section 181(1); and
(b) a person notified by the dispute resolution body under
section 181(3); and
(c) if the dispute resolution body is of the opinion that the resolution
of the access dispute may involve requiring another person to do
something—that other person; and
(d) any other person who applies in writing to be made a party and is
accepted by the dispute resolution body as having a sufficient
interest.
Part 3—Access determinations
184—Determination of access
dispute
(1) Unless the dispute resolution body terminates an access dispute under
section 186, the dispute resolution body must make a determination on
access by the prospective user or user, as the case requires.
(2) In making an access determination the dispute resolution body must
comply with this Chapter and the Rules.
(3) An access determination must—
(a) be in writing; and
(b) include a statement of reasons for making the determination;
and
(c) be given to the parties without delay.
(4) An access determination has effect on and after the date specified in
the determination.
185—Dispute resolution body may require parties to
mediate, conciliate or engage in an alternative dispute resolution
process
(1) The dispute resolution body may require the parties, in accordance
with the Rules, to mediate, conciliate or engage in another alternative dispute
resolution process for the purpose of resolving the dispute.
(2) A party must comply with a requirement under
subsection (1).
186—Dispute resolution body may terminate access
dispute in certain cases
(1) The dispute resolution body may at any time terminate an access
dispute (without making an access determination) if the dispute resolution body
considers that—
(a) the notification of the access dispute was vexatious; or
(b) the subject matter of the dispute is trivial, misconceived or lacking
in substance; or
(c) the party who notified the access dispute had, but did not avail
itself of, an opportunity to engage in negotiations in good faith with the other
party before that notification; or
(d) a specified dispute termination circumstance has occurred.
(2) Subject to section 188, the dispute resolution body may also
terminate an access dispute (without making an access determination) if the
dispute resolution body considers that the aspect of access about which there is
a dispute is expressly or impliedly dealt with under a contract between, as the
case requires—
(a) the prospective user and service provider;
(b) the user and service provider.
(3) In this section—
specified dispute termination circumstance means a
circumstance specified by the Rules as being a circumstance, the occurrence of
which, entitles the dispute resolution body to terminate an access dispute
(without making an access determination).
187—No access determination if dispute resolution
body considers there is genuine competition
Despite anything to the contrary in this Chapter, the dispute resolution
body may refuse to make an access determination that requires the service
provider to provide a particular pipeline service to a prospective user or user
if the dispute resolution body considers that the pipeline service the subject
of the access dispute could be provided on a genuinely competitive basis by a
person other than the service provider or an associate of the service
provider.
188—Restrictions on access
determinations
(1) The dispute resolution body must not make an access determination that
would have any of the following effects:
(a) preventing a user obtaining a sufficient amount of a pipeline service
under a contract or previous access determination to be able to meet the user's
reasonably anticipated requirements, measured at the time the access dispute was
notified;
(b) preventing a prospective user or user from obtaining, by the exercise
of a pre-notification right, a sufficient amount of a pipeline service to be
able to meet the prospective user's or user's actual requirements;
(c) depriving a person of a relevant protected contractual
right.
(2) In this section—
pre-notification right means a right under a contract, or
under an access determination, that was in force at the time when the access
dispute was notified under section 181;
relevant exclusivity right means an express contractual right
that arose on or after 30 March 1995 that—
(a) prevents a service provider supplying pipeline services to persons who
are not parties to the contract; or
(b) limits or controls a service provider's ability to supply pipeline
services to persons who are not parties to the contract,
but does not include a user's contractual right to obtain a certain amount
of pipeline services;
relevant protected contractual right means a right under a
contract (other than a relevant exclusivity right) that was in force immediately
before the notification of an access dispute under section 181.
189—Access determination must give effect to
applicable access arrangement
Subject to sections 190 and 191 and any Rules made for the purposes of
this Part, the dispute resolution body must, in making an access determination,
give effect to the applicable access arrangement—
(a) applying to the pipeline services provided, or to be provided, by
means of the access dispute pipeline; and
(b) in effect at the time the determination is made,
(even though that arrangement may not have been in force when notification
of the access dispute was given).
190—Access determinations and past contributions of
capital to fund installations or the construction of new
facilities
(1) In making an access determination, the dispute resolution body may
(where relevant) take into account past contributions of capital to fund
installations or the construction of new facilities.
(2) Without limiting section 74, the Rules may—
(a) specify the matters that the dispute resolution body must address in
making that access determination;
(b) specify the content of that access determination.
191—Rules may allow determination that varies
applicable access arrangement for installation of a new
facility
(1) This section applies if the dispute resolution body is proposing to
make an access determination that will require—
(a) a service provider to install or construct a new facility to expand
the capacity of the access dispute pipeline; and
(b) the prospective user or user who is a party to the access dispute to
contribute some or all of the capital to fund the installation or construction
of the new facility.
(2) Without limiting section 74, the Rules may—
(a) confer a function or power on the dispute resolution body to, when
making the access determination, vary the applicable access arrangement;
and
(b) specify the matters that the dispute resolution body must address in
making that access determination; and
(c) specify the kinds of variations that may be made to the applicable
access arrangement; and
(d) specify the content of that access determination.
192—Access determinations need not require the
provision of a pipeline service
An access determination may, but need not, require a service provider to
provide a pipeline service to a prospective user.
193—Content of access
determinations
Subject to this Chapter, an access determination may deal with any matter
relating to the provision of a pipeline service to a prospective user or
user.
Example—
An access determination may require the service provider to provide a
pipeline service to the prospective user or user at—
(a) a specified tariff, rate or charge; and
(b) on specified terms and conditions.
Part 4—Variation of access
determinations
194—Variation of access
determination
(1) The dispute resolution body may vary an access determination on the
application of any party to the determination. However, it cannot vary the final
determination if any other party objects.
Note—
If the parties cannot agree on a variation, a new access dispute can be
notified under section 181.
(2) Section 188 applies to a variation under this section as
if—
(a) an access dispute arising out of the access determination had been
notified when the application was made to the dispute resolution body for the
variation of the determination; and
(b) the variation were the making of an access determination in the terms
of the varied determination.
Part 5—Compliance with access
determinations
195—Compliance with access
determination
A party to an access dispute in respect of which an access determination is
made must comply with the access determination.
Part 6—Access dispute hearing
procedure
196—Hearing to be in private
(1) Subject to subsection (2), a dispute hearing is to be in
private.
(2) If the parties agree, a dispute hearing or part of a dispute hearing
may be conducted in public.
(3) The dispute resolution body may give written directions as to the
persons who may be present at a dispute hearing that is conducted in
private.
(4) In giving directions under subsection (3), the dispute resolution
body must have regard to the wishes of the parties and the need for commercial
confidentiality.
197—Right to representation
In a dispute hearing a party may appear in person or be represented by
another person.
198—Procedure of dispute resolution
body
(1) In a dispute hearing the dispute resolution body—
(a) is not bound by technicalities, legal forms or rules of evidence;
and
(b) must act as speedily as a proper consideration of the access dispute
allows, having regard to the need to carefully and quickly inquire into and
investigate the access dispute and all matters affecting the merits, and fair
settlement, of the access dispute; and
(c) may inform itself about any matter relevant to the access dispute in
any way it thinks appropriate.
(2) The dispute resolution body may determine the periods that are
reasonably necessary for the fair and adequate presentation of the respective
cases of the parties in the dispute hearing, and may require that the cases be
presented within those periods.
(3) The dispute resolution body may require evidence or argument to be
presented in writing, and may decide the matters on which the dispute resolution
body will hear oral evidence or argument.
(4) The dispute resolution body may determine that a dispute hearing is to
be conducted by—
(a) telephone; or
(b) closed circuit television; or
(c) any other means of communication.
(5) The Rules may make further provision about the procedure for the
conduct of dispute hearings.
199—Particular powers of dispute resolution body in
a hearing
(1) The dispute resolution body may do any of the following things for the
purpose of determining an access dispute:
(a) give a direction in the course of, or for the purpose of, a dispute
hearing;
(b) hear and determine the access dispute in the absence of a party who
has been given notice of the dispute hearing;
(c) sit at any place;
(d) adjourn to any time and place;
(e) refer any matter to an independent expert and accept the expert's
report as evidence.
(2) The dispute resolution body may make an interim
determination.
200—Disclosure of information
(1) The dispute resolution body may give an oral or written order to a
person not to divulge or communicate to anyone else specified information that
was given to the person in the course of an access dispute unless the person has
the dispute resolution body's permission.
(2) A person must not, without reasonable excuse, refuse or fail to comply
with an order under subsection (1).
Maximum penalty:
(a) in the case of a natural person—$2 000;
(b) in the case of a body corporate—$10 000.
201—Power to take evidence on oath or
affirmation
(1) The dispute resolution body may take evidence on oath or affirmation
and for that purpose the dispute resolution body may administer an oath or
affirmation.
(2) The dispute resolution body may summon a person to appear before the
dispute resolution body to—
(a) give evidence; or
(b) produce such documents (if any) as are referred to in the summons;
or
(c) give evidence and produce such documents (if any) as are referred to
in the summons.
(3) The powers in this section may be exercised only for the purposes of
hearing and determining an access dispute.
202—Failing to attend as a
witness
A person who is served, as prescribed by the Regulations, with a summons to
appear as a witness before the dispute resolution body must not, without
reasonable excuse—
(a) fail to attend as required by the summons; or
(b) fail to appear and report himself or herself from day to day unless
excused, or released from further attendance, by the dispute resolution
body.
Maximum penalty: $2 000.
203—Failing to answer questions
etc
(1) A person appearing as a witness before the dispute resolution body
must not, without reasonable excuse—
(a) refuse or fail to be sworn or to make an affirmation; or
(b) refuse or fail to answer a question that the person is required to
answer by the dispute resolution body; or
(c) refuse or fail to produce a document that he or she is required to
produce by a summons under this Chapter served on him or her as prescribed by
the Regulations.
Maximum penalty: $2 000.
(2) It is a reasonable excuse for the purposes of subsection (1) for
a natural person to refuse or fail to answer a question or produce a document on
the ground that the answer or the production of the document
might—
(a) tend to incriminate the person; or
(b) expose the person to a criminal penalty.
(3) Subsection (2) does not limit what is a reasonable excuse for the
purposes of subsection (1).
204—Intimidation etc
A person must not—
(a) threaten, intimidate or coerce another person; or
(b) cause or procure damage, loss or disadvantage to another
person,
because that other person—
(c) proposes to produce, or has produced, documents to the dispute
resolution body; or
(d) proposes to appear, or has appeared, as a witness before the dispute
resolution body.
Maximum penalty: $2 000.
205—Party may request dispute resolution body to
treat material as confidential
(1) A party in a dispute hearing may—
(a) inform the dispute resolution body that, in the party's opinion, a
specified part of a document contains confidential information; and
(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.
206—Costs
(1) Each party is to bear its own costs in a dispute hearing except to the
extent that an order under this section specifies otherwise.
(2) At any time, the dispute resolution body may order that a party pay
all or a specified part of the costs of another party in a dispute
hearing.
(3) The dispute resolution body may make an order under
subsection (2) only if satisfied that it is fair to do so, having regard
to—
(a) whether a party has conducted the dispute hearing in a way that
unnecessarily disadvantaged another party by conduct such as—
(i) failing to comply with an order or direction of the dispute resolution
body without reasonable excuse;
(ii) failing to comply with this Law, the Regulations or the
Rules;
(iii) asking for an adjournment as a result of subparagraph (i) or
(ii);
(iv) causing an adjournment;
(v) attempting to deceive another party or the dispute resolution
body;
(vi) vexatiously conducting an access dispute;
(b) whether a party has been responsible for prolonging unreasonably the
time taken to complete the dispute hearing;
(c) the relative strengths of the claims made by each of the parties,
including whether a party has made a claim that has no tenable basis in fact or
law;
(d) the nature and complexity of the access dispute;
(e) any other matter the dispute resolution body considers
relevant.
(4) A party to whom an order made under subsection (2) is directed
must comply with the order.
(5) If the dispute resolution body considers that the representative of a
party, rather than the party, is responsible for conduct described in
subsection (3)(a) or (b), the dispute resolution body may order that the
representative in his or her own capacity compensate another party for any costs
incurred unnecessarily.
(6) Before making an order under subsection (5), the dispute
resolution body must give the representative a reasonable opportunity to be
heard.
(7) A representative of a party to whom an order made under
subsection (5) is directed must comply with the order.
(8) If the dispute resolution body makes an order for costs before the end
of an access dispute, the dispute resolution body may require that the order be
complied with before it continues with the proceeding.
(9) If the dispute resolution body makes an order for costs, the dispute
resolution body may fix the amount of costs itself.
(10) This section applies to costs incurred by the parties in a dispute
hearing even if the notification of the access dispute to which the dispute
hearing relates is withdrawn.
207—Outstanding costs are a debt due to party
awarded the costs
Costs that are payable under section 206(4) or (7)—
(a) are a debt due to the party to whom the dispute resolution body has
ordered that they be paid; and
(b) may be recovered by that party in a court of competent
jurisdiction.
Part 7—Joint access dispute
hearings
208—Definition
In this Part—
nominated disputes has the meaning given by
section 209(2).
209—Joint dispute hearing
(1) This section applies if—
(a) the dispute resolution body is conducting 2 or more dispute hearings
at a particular time; and
(b) 1 or more matters are common to the access disputes in relation to
which the dispute hearings are being conducted.
(2) The dispute resolution body may, by notice in writing, decide that it
will hold a joint dispute hearing in respect of such of those access disputes
(the nominated disputes) as are specified in the notice.
(3) The dispute resolution body may do so only if it considers this would
be likely to result in the nominated disputes being resolved in a more efficient
and timely manner.
210—Consulting the parties
(1) Before making a decision under section 209(2), the dispute
resolution body must give each party to each of the nominated disputes a notice
in writing—
(a) specifying what the dispute resolution body is proposing to do;
and
(b) inviting the party to make a written submission on the proposal to the
dispute resolution body within 10 business days after the notice is
given.
(2) The dispute resolution body must have regard to any submission so made
in deciding whether to do so. The dispute resolution body may have regard to any
other matter it considers relevant.
211—Constitution and procedure of dispute
resolution body for joint dispute hearings
Chapter 6 Part 6 applies to the joint dispute hearing in a corresponding
way to the way in which it applies to a particular dispute hearing.
212—Record of proceedings etc
(1) The dispute resolution body as constituted for the purposes of the
joint dispute hearing may have regard to any record of the proceedings of the
dispute of any of the nominated disputes.
(2) The dispute resolution body as constituted for the purposes of the
dispute hearing of each of the nominated disputes may, for the purposes of
making an access determination in relation to the access dispute to which that
hearing relates—
(a) have regard to any record of the proceedings of the joint dispute
hearing; and
(b) adopt any findings of fact made by the dispute resolution body as
constituted for the purposes of the joint dispute hearing.
Part 8—Miscellaneous matters
213—Correction of access determinations for
clerical mistakes etc
If an access determination contains—
(a) a clerical mistake; or
(b) an error arising from an accidental slip or omission; or
(c) a material miscalculation of figures or a material mistake in the
description of any person, thing or matter referred to in the determination;
or
(d) a defect in form,
the dispute resolution body may correct the access determination.
214—Reservation of capacity during an access
dispute
A service provider who is in an access dispute with a user must not,
without the consent of the user, alter the rights that the user has to use the
capacity of the access dispute pipeline during the period of the
dispute.
215—Subsequent service providers bound by access
determinations
(1) An access determination applies to every subsequent service provider
as if that subsequent service provider were a party to the access dispute in
respect of which the access determination was made.
(2) In this section—
subsequent service provider means a service provider (other
than the service provider to whom the access determination applies) who provides
pipeline services—
(a) the subject of the access dispute; and
(b) in respect of which the access determination was made.
216—Regulations about the costs to be paid by
parties to access dispute
The Regulations may provide for the dispute resolution body
to—
(a) charge the parties to an access dispute for its costs in the access
dispute; and
(b) apportion those costs between the parties.
Chapter 7—The Natural Gas Services Bulletin
Board
Part 1—The Bulletin Board
Operator
217—The Bulletin Board
operator
The Bulletin Board operator is the person prescribed by the Regulations as
the Bulletin Board operator.
218—Obligation to establish and maintain the
Natural Gas Services Bulletin Board
(1) The Bulletin Board operator first prescribed under section 217
must establish a website, to be known as the Natural Gas Services Bulletin
Board, containing information of the kind specified in the Rules in relation to
natural gas services.
(2) The Bulletin Board operator must maintain the Natural Gas Services
Bulletin Board.
(3) The Bulletin Board operator may replace the website with another
website containing information of the kind specified in the Rules in relation to
natural gas services.
219—Other functions of the Bulletin Board
operator
The Bulletin Board operator also has the following functions:
(a) to collect and collate Bulletin Board information;
(b) to collect and collate other information in relation to natural gas
services for inclusion on the Natural Gas Services Bulletin Board;
(c) to derive from information of the type mentioned in
paragraphs (a) and (b) information for inclusion on the Natural Gas
Services Bulletin Board;
(d) to publish information on the Natural Gas Services Bulletin Board of
the kinds that may or must be included on the Natural Gas Services Bulletin
Board under the Rules;
(e) to manage information of the type mentioned in paragraphs (a),
(b) and (c);
(f) such other functions as are conferred on the Bulletin Board operator
by this Law, the Rules or any other law prescribed by the Regulations for the
purposes of this paragraph.
220—Powers of the Bulletin Board
operator
The Bulletin Board operator has the power to do all things necessary or
convenient to be done for or in connection with the performance of its
functions.
221—Immunity of the Bulletin Board
operator
(1) The Bulletin Board operator or an officer or employee of the Bulletin
Board operator does not incur any civil monetary liability for an act or
omission in the performance or exercise, or purported performance or exercise,
of a function or power of the Bulletin Board operator under this Law or the
Rules unless the act or omission is done or made in bad faith or through
negligence.
(2) The civil monetary liability for an act or omission of a kind referred
to in subsection (1) done or made through negligence may not exceed the
prescribed maximum amount.
(3) The Regulations may, for the purposes of subsection (2), without
limitation do all or any of the following:
(a) prescribe a maximum amount that is limited in its application to
persons, events, circumstances, losses or periods specified in the
Regulations;
(b) prescribe maximum amounts that vary in their application according to
the persons to whom or the events, circumstances, losses or periods to which
they are expressed to apply;
(c) prescribe the manner in which a maximum amount is to be divided
amongst claimants.
(4) The Bulletin Board operator may enter into an agreement with a person
varying or excluding the operation of a provision of this section and, to the
extent of that agreement, that provision does not apply.
(5) This section does not apply to any liability of an officer or employee
of a body corporate to the body corporate.
(6) In this section—
civil monetary liability means liability to pay damages or
compensation or any other amount ordered in a civil proceeding, but does not
include liability to pay a civil penalty under this Law, an infringement penalty
under Chapter 8 Part 7 or the costs of a proceeding.
222—Fees for services provided
(1) The Bulletin Board operator may charge a fee specified, or a fee
calculated in accordance with a formula or methodology specified, in the Rules
for access by a person to—
(a) the Natural Gas Services Bulletin Board; or
(b) Bulletin Board information.
(2) The fee must not be such as to amount to taxation.
Part 2—Bulletin Board
information
223—Obligation to give information to the Bulletin
Board operator
(1) A person of the following kind who has possession or control of
information in relation to natural gas services must give the Bulletin Board
operator the information if the person is required to do so under the
Rules:
(a) a service provider;
(b) a gas market operator;
(c) a user;
(d) a non scheme pipeline user;
(e) a producer;
(f) a storage provider;
(g) another person who is prescribed by the Regulations for the purposes
of this paragraph.
(2) The information must be given to the Bulletin Board operator in
accordance with the Rules.
(3) Subsection (1) does not apply if the person is exempt under the
Rules from giving the information.
224—Person cannot rely on duty of confidence to
avoid compliance with obligation
A person must not refuse to comply with the requirement in
section 223(1) on the ground of any duty of confidence.
225—Giving to Bulletin Board operator false and
misleading information
A person must not give Bulletin Board information to the Bulletin Board
operator that the person knows is false or misleading in a material
particular.
226—Immunity of persons giving information to the
Bulletin Board operator
(1) A person who gives Bulletin Board information to the Bulletin Board
operator does not incur any civil monetary liability for an act or omission in
giving that information unless the act or omission is done or made in bad faith
or through negligence.
(2) The civil monetary liability for an act or omission of a kind referred
to in subsection (1) done or made through negligence may not exceed the
prescribed maximum amount.
(3) The Regulations may, for the purposes of subsection (2), without
limitation do all or any of the following:
(a) prescribe a maximum amount that is limited in its application to
persons, events, circumstances, losses or periods specified in the
Regulations;
(b) prescribe maximum amounts that vary in their application according to
the persons to whom or the events, circumstances, losses or periods to which
they are expressed to apply;
(c) prescribe the manner in which a maximum amount is to be divided
amongst claimants.
(4) A person mentioned in subsection (1) may enter into an agreement
with another person varying or excluding the operation of a provision of this
section and, to the extent of that agreement, that provision does not
apply.
(5) In this section—
civil monetary liability means liability to pay damages or
compensation or any other amount ordered in a civil proceeding, but does not
include liability to pay a civil penalty under this Law, an infringement penalty
under Chapter 8 Part 7 or the costs of a proceeding.
Part 3—Protection of
information
227—Protection of information by the Bulletin Board
operator
(1) The Bulletin Board operator must not copy, record, use or disclose
information that is Bulletin Board information, except for the purposes of
exercising powers or performing functions as the Bulletin Board
operator.
(2) If a person ceases to be the Bulletin Board operator, the person must
not afterwards copy, record, use or disclose information that is Bulletin Board
information and that was disclosed to the person as the Bulletin Board
operator.
(3) Subsection (1) does not apply if—
(a) the Bulletin Board operator has the written consent for the copying,
recording, use or disclosure from—
(i) the person who gave the information; or
(ii) the person from whom the person referred to in subparagraph (i)
received that information; or
(b) the information is publicly available; or
(c) the information is required to be used or disclosed because of the
operation of a law of this jurisdiction or another participating jurisdiction;
or
(d) the information is also disclosed to the Bulletin Board
operator—
(i) for reasons other than compliance with section 223(1);
and
(ii) in circumstances other than those expressly permitted by the
Rules.
228—Protection of information by employees etc of
the Bulletin Board operator
(1) A person who is—
(a) an officer of the Bulletin Board operator; or
(b) an employee of the Bulletin Board operator; or
(c) a person performing work for or rendering services to the Bulletin
Board operator otherwise than as an officer or employee,
must not copy, record, use or disclose information that is Bulletin Board
information, except in that person’s capacity as a person who is
exercising powers or performing functions, or assisting in the exercise of
powers or performance of functions, for the Bulletin Board operator as the
Bulletin Board operator.
(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.
Chapter 8—Proceedings under the National Gas
Law
Part 1—Proceedings generally
229—Instituting civil proceedings under this
Law
(1) Proceedings may not be instituted in a court in respect of a breach of
a provision of this Law, the Regulations or Rules that is not an offence
provision by any person except as provided for in this Chapter.
(2) The AER may, in accordance with Chapter 8 Part 2, institute civil
proceedings in respect of a breach of—
(a) a provision of this Law that is not an offence provision (including a
provision that is a civil penalty provision or conduct provision); or
(b) a provision of the Regulations that is not an offence provision
(including a provision that is a civil penalty provision or conduct provision);
or
(c) a provision of the Rules (including a provision that is a civil
penalty provision or a conduct provision).
(3) A person other than the AER may, in accordance with Chapter 8 Part 2,
institute civil proceedings in respect of a breach of a conduct
provision.
230—Time limit within which proceedings may be
instituted
(1) The AER may only institute a proceeding for a breach, by a person, of
a provision of this Law, the Regulations or the Rules that is not an offence
provision within 6 years after the date on which the breach occurred.
(2) A person, other than the AER, may only institute a proceeding for a
breach of a conduct provision by another person within 6 years after the date on
which the breach occurred.
Part 2—Proceedings for breaches of this Law,
Regulations or the Rules
231—AER proceedings for breaches of this Law,
Regulations or the Rules that are not offences
(1) The Court may make an order, on application by the AER on behalf of
the Commonwealth, declaring that a person is in breach of a provision of this
Law, the Regulations or the Rules that is not an offence provision.
Note—
A Supreme Court of a participating jurisdiction that is a State may hear an
application by the AER under subsection (1) by operation of section 39(2)
of the Judiciary Act 1903 of the Commonwealth.
(2) If the order declares a person to be in breach of a provision of this
Law the Regulations or the Rules that is not an offence provision, the order may
include 1 or more of the following:
(a) an order that the person pay a civil penalty determined in accordance
with this Law, the Regulations and the Rules if the breach is a breach of a
civil penalty provision;
(b) an order that the person cease, within a specified period, the act,
activity or practice constituting the breach;
(c) an order that the person take such action, or adopt such practice, as
the Court requires for remedying the breach or preventing a recurrence of the
breach;
(d) an order that the person implement a specified program for compliance
with this Law, the Regulations and the Rules;
(e) an order of a kind prescribed by the Regulations.
(3) If a person has engaged, is engaging or is proposing to engage in any
conduct in breach of a provision of this Law, the Regulations or the Rules that
is not an offence provision, the Court may, on application by the AER on behalf
of the Commonwealth, grant an injunction—
(a) restraining the person from engaging in the conduct; and
(b) if, in the Court's opinion, it is desirable to do so—requiring
the person to do something.
(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.
232—Proceedings for declaration that a person is in
breach of a conduct provision
(1) The Court may make an order, on application by a person other than the
AER, declaring that another person is in breach of a conduct
provision.
(2) If the order declares a person to be in breach of a conduct provision,
the order may include 1 or more of the following:
(a) an order that the person in breach cease, within a specified period,
the act, activity or practice constituting the breach;
(b) an order that the person in breach take such action, or adopt such
practice, as the Court requires for remedying the breach or preventing a
recurrence of the breach;
(c) an order that the person in breach implement a specified program for
compliance with this Law, the Regulations and the Rules;
(d) an order of a kind prescribed by the Regulations.
(3) If a person has engaged, is engaging or is proposing to engage in any
conduct in breach of a conduct provision, the Court may, on application by
another person (other than the AER), grant an injunction—
(a) restraining the first mentioned person from engaging in the conduct;
and
(b) if, in the Court's opinion, it is desirable to do so—requiring
the first mentioned person to do something.
(4) The power of the Court under subsection (3) to grant an
injunction restraining a person from engaging in conduct of a particular kind
may be exercised—
(a) if the Court is satisfied that the person has engaged in conduct of
that kind—whether or not it appears to the Court that the person intends
to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the Court that, if an injunction is not granted, it
is likely that the person will engage in conduct of that kind—whether or
not the person has previously engaged in conduct of that kind and whether or not
there is an imminent danger of substantial damage to any person if the person in
conduct of that kind.
233—Actions for damages by persons for breach of
conduct provision
A person other than the AER who suffers loss or damage by conduct of
another person that was done in breach of a conduct provision may recover the
amount of the loss or damage by action against that other person in a court of
competent jurisdiction.
Part 3—Matters relating to breaches of this Law,
the Regulations or the Rules
234—Matters for which there must be regard in
determining amount of civil penalty
Every civil penalty ordered to be paid by a person declared to be in breach
of a provision of this Law, the Regulations or the Rules must be determined
having regard to all relevant matters, including—
(a) the nature and extent of the breach; and
(b) the nature and extent of any loss or damage suffered as a result of
the breach; and
(c) the circumstances in which the breach took place; and
(d) whether the person has engaged in any similar conduct and been found
to be in breach of a provision of this Law, the Regulations or the Rules in
respect of that conduct; and
(e) whether the service provider had in place a compliance program
approved by the AER or required under the Rules, and if so, whether the service
provider has been complying with that program.
235—Breach of a civil penalty provision is not an
offence
A breach of a civil penalty provision is not an offence.
236—Breaches of civil penalty provisions involving
continuing failure
For the purpose of determining the civil penalty for a breach of a civil
penalty provision, if the breach consists of a failure to do something that is
required to be done, the breach is to be regarded as continuing until the act is
done despite the fact that any period within which, or time before which, the
act is required to be done has expired or passed.
237—Conduct in breach of more than 1 civil penalty
provision
(1) If the conduct of a person constitutes a breach of 2 or more civil
penalty provisions, proceedings may be instituted under this Law against the
person in relation to the breach of any 1 or more of those provisions.
(2) However, the person is not liable to more than 1 civil penalty under
this Law in respect of the same conduct.
Note—
Clause 49 of Schedule 2 to this Law sets out further provisions in
relation to double jeopardy.
238—Persons involved in breach of civil penalty
provision or conduct provision
(1) A person must not—
(a) aid, abet, counsel or procure a breach of a civil penalty provision or
conduct provision by another person; or
(b) be in any way directly or indirectly knowingly concerned in, or party
to, a breach of a civil penalty provision or conduct provision by another
person.
(2) This Law applies to a person who breaches subsection (1) in
relation to a civil penalty provision or conduct provision as if the person were
a person who has breached the civil penalty provision or conduct
provision.
239—Attempt to breach a civil penalty
provision
A person who attempts to commit a breach of a civil penalty provision
commits a breach of that provision.
240—Civil penalties payable to the
Commonwealth
If a person is ordered to pay a civil penalty, the penalty is payable to
the Commonwealth.
Part 4—Judicial review of decisions under this Law,
the Regulations and the Rules
241—Definition
In this Part—
person aggrieved includes a person whose interests are
adversely affected.
242—Applications for judicial review of decisions
of the AEMC
(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.
243—Applications for judicial review of decisions
of the Bulletin Board operator
(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.
Part 5—Merits review and other non-judicial
review
Division 1—Interpretation
244—Definitions
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;
affected or interested person or body means—
(a) a service provider to whom a reviewable regulatory decision
applies;
(b) a user, prospective user or end user whose commercial interests are
materially affected by a reviewable regulatory decision;
(c) a user or consumer association;
(d) a person whose interests are affected by a reviewable regulatory
decision that is—
(i) a coverage determination; or
(ii) a 15-year no-coverage determination; or
(iii) a coverage revocation determination;
applicant means—
(a) an affected or interested person or body who has been granted leave to
apply for review by the Tribunal under Division 2; or
(b) a person who makes an application under section 263;
average annual regulated revenue means the annual average of
regulated revenue calculated for the regulatory period of an applicable access
arrangement;
coverage related light regulation decision means either of
the following reviewable regulatory decisions:
(a) a decision of the NCC under section 110(1);
(b) a decision of the NCC under section 119(3);
end user includes a person who acquires, or proposes to
acquire, natural gas for the purpose of on-selling that gas to a person who
intends to consume that gas;
intervener means a person or body referred to in
section 253, 254 or 255 who has intervened in a review under Division 2
with the leave of the Tribunal or otherwise;
NCC recommendation means—
(a) a coverage recommendation; or
(b) a coverage revocation recommendation; or
(c) a no-coverage recommendation; or
(d) a price regulation exemption recommendation;
original decision maker means a relevant Minister, the
Commonwealth Minister, the AER or the NCC;
regulated revenue means the total revenue earned or to be
earned by a covered pipeline service provider—
(a) under; and
(b) during the regulatory period of,
an applicable access arrangement through the provision of reference
services to which that arrangement applies;
regulatory period means the period specified in an applicable
access arrangement to be the regulatory period;
review under this Part means a review under Division 2 or
Division 3;
reviewable regulatory decision means—
(a) a Ministerial coverage decision; or
(b) a light regulation determination or a decision of the NCC under
Chapter 3 Part 2 not to make a light regulation determination; or
(c) decision of the NCC under Chapter 3 Part 2 to revoke or not revoke a
light regulation determination; or
(d) an applicable access arrangement decision (other than a full access
arrangement decision that does not approve a full access arrangement);
or
(e) an AER ring fencing determination; or
(f) a decision of the AER under section 146 to give an exemption;
or
(g) an associate contract decision; or
(h) a decision of an original decision maker that is prescribed by the
Regulations to be a reviewable regulatory decision,
but does not include a decision of the AER made under Chapter 10 Part
2;
small/medium user or consumer intervener means a user or
consumer intervener that—
(a) the members of which are only small to medium users or end users;
or
(b) if it does not have any such members, has, as an object or purpose,
the object or purpose of representing and promoting the interests of small to
medium users or end users;
small to medium user or end user means a user or end user
whose annual consumption of natural gas does not exceed a level (expressed in
terajoules) fixed by Regulation for the purposes of this definition;
user or consumer association means an association or body
(whether incorporated or unincorporated)—
(a) the members of which include more than 1 user, prospective user or end
user; and
(b) that represents and promotes the interests of those members in
relation to the provision of natural gas services;
user or consumer interest group means an association or body
(whether incorporated or unincorporated)—
(a) that has, as an object or purpose, the object or purpose of
representing and promoting the interests of users or prospective users or end
users of natural gas services; but
(b) the members of which need not include a user, prospective user or end
user;
user or consumer intervener means—
(a) a user or consumer association; or
(b) a user or consumer interest group,
that has made a submission or comment in relation to the making of a
reviewable regulatory decision following an invitation to do so under this Law
or the Rules.
Division 2—Merits review for reviewable regulatory
decisions
245—Applications for review
(1) Subject to this section, an affected or interested person or body,
with the leave of the Tribunal, may apply to the Tribunal for a review of a
reviewable regulatory decision.
(2) An application must—
(a) be made in the form and manner determined by the Tribunal;
and
(b) specify the grounds for review being relied on.
246—Grounds for review
(1) An application under section 245(1) may be made only on 1 or more
of the following grounds:
(a) the original decision maker made an error of fact in the decision
maker's findings of facts, and that error of fact was material to the making of
the decision;
(b) the original decision maker made more than 1 error of fact in the
decision maker's findings of facts, and those errors of fact, in combination,
were material to the making of the decision;
(c) the exercise of the original decision maker's discretion was
incorrect, having regard to all the circumstances;
(d) the original decision maker's decision was unreasonable, having regard
to all the circumstances.
(2) It is for the applicant to establish a ground listed in
subsection (1).
247—By when an application must be
made
(1) An application under section 245(1) in respect of a reviewable
regulatory decision (other than a coverage related light regulation decision)
must be made no later than 15 business days after the reviewable regulatory
decision is published in accordance with this Law or the Rules.
(2) An application under section 245(1) in respect of a coverage
related light regulation decision must be made—
(a) in the case of a decision of the NCC under section 110(1), no
later than 15 business days after the making of the coverage determination
relating to the coverage recommendation to which the decision under
section 110(1) is attached;
(b) in the case of a decision of the NCC under section 119(3), no
later than 15 business days after the making of the coverage revocation
determination relating to the coverage revocation recommendation to which the
decision under section 119(3) is attached.
248—Tribunal must not grant leave unless serious
issue to be heard and determined
Subject to this Division, the Tribunal must not grant leave to apply under
section 245(1) unless it appears to the Tribunal that there is a serious
issue to be heard and determined as to whether a ground for review set out in
section 246(1) exists.
249—Leave must be refused if application is about
an error relating to revenue amounts below specified
threshold
(1) This section applies if—
(a) leave to apply under section 245(1) is about an error in a
reviewable regulatory decision that is a full access arrangement decision;
and
(b) the ground for review relied on by the applicant relates to the amount
of revenue that may be earned by a covered pipeline service provider that is
specified in or derived from that decision.
(2) Despite section 248, the Tribunal must not grant leave to apply
under section 245(1) even if there is a serious issue to be heard and
determined as to whether a ground for review set out in section 246(1)
exists unless the amount that is specified in or derived from the decision
exceeds the lesser of $5 000 000 or 2% of the average annual regulated
revenue of the covered pipeline service provider.
250—Tribunal must refuse to grant leave if
submission not made or is made late
The Tribunal must not grant leave to apply under section 245(1) to a
person or body referred to in paragraph (b), (c) or (d) of the definition of
affected or interested person or body in section 244 if that
person or body—
(a) did not make a submission or comment in relation to the making of the
reviewable regulatory decision under review following an invitation to do so
under this Law or the Rules; or
(b) did make a submission or comment in relation to the making of the
reviewable regulatory decision under review following an invitation to do so
under this Law or the Rules but that submission—
(i) was not made within the time required under this Law or the Rules
following that invitation; and
(ii) was not taken into account in the making of the decision.
251—Tribunal may refuse to grant leave to service
provider in certain cases
(1) This section applies—
(a) in relation to an application under section 245(1) by a service
provider for a review of a reviewable regulatory decision that applies to the
service provider; and
(b) if the Tribunal is satisfied of the matters set out in
section 248 or 249 to grant leave to apply under
section 245(1).
(2) Despite being satisfied of the matters set out in section 248 or
249 to grant leave to apply under section 245(1), the Tribunal may refuse
to grant leave to the service provider if the Tribunal is satisfied the service
provider—
(a) without reasonable excuse—
(i) failed to comply with a request (including a request for relevant
information), or a direction made under this Law or the Rules for the purpose of
making the decision; or
(ii) conducted itself in a manner that resulted in the making of the
decision being delayed; or
(b) misled, or attempted to mislead—
(i) in all cases, the original decision maker on a matter relevant to the
original decision maker's decision;
(ii) in the case of a reviewable regulatory decision that is a Ministerial
coverage decision, the NCC on a matter relevant to the making of an NCC
recommendation relating to the decision.
252—Effect of application on operation of
reviewable regulatory decisions
An application under section 245(1)—
(a) does not the stay the operation of the following reviewable regulatory
decisions:
(i) an applicable access arrangement decision approving or making an
applicable access arrangement; or
(ii) an associate contract decision;
(b) stays the operation of any other reviewable regulatory decision on the
granting of leave to apply by the Tribunal, unless the Tribunal otherwise
orders.
253—Intervention by others in a review without
leave
Only the following persons may intervene in a review under this Division
without leave of the Tribunal:
(a) a service provider to whom the reviewable regulatory decision being
reviewed applies;
(b) a Minister of a participating jurisdiction.
254—Leave for reviewable regulatory decision
process participants
(1) The Tribunal must grant leave to a person or body to intervene in a
review under this Division if that person or body is a reviewable regulatory
decision process participant.
(2) In this section—
reviewable regulatory decision process participant means a
person or body (other than a user or consumer intervener) with a sufficient
interest in the reviewable regulatory decision being reviewed
who—
(a) has made a submission or comment in relation to the making of that
decision within the time required under this Law or the Rules following an
invitation to do so under this Law or the Rules; or
(b) has made a submission or comment in relation to the making of that
decision outside the time required under this Law or the Rules following an
invitation to do so under this Law or the Rules but which was taken into account
in the making of that decision.
255—Leave for user or consumer
intervener
(1) A user or consumer intervener may apply to the Tribunal for leave to
intervene in a review of a reviewable regulatory decision under this
Division.
(2) The Tribunal may grant leave to a user or consumer intervener to
intervene in a review under this Division.
(3) Without limiting subsection (2), the Tribunal may grant leave to
a user or consumer intervener to intervene in a review under this Division if
the Tribunal is satisfied—
(a) the user or consumer intervener, in its application for leave to
intervene, raises a matter that will not be raised by the original decision
maker or the applicant; or
(b) the information or material the user or consumer intervener wishes to
present, or the submissions the user or consumer intervener wishes to make, in
the review are likely to be better presented or made by the user or consumer
intervener rather than another party to the review; or
(c) the interests of the user or consumer intervener or its members are
affected by the decision being reviewed.
(4) For the purposes of subsection (3)(c)—
(a) the interests of a user or consumer intervener are to be taken to be
affected if the reviewable regulatory decision being reviewed relates to an
object or purpose of the user or consumer intervener;
(b) the interests of a user or consumer intervener are not to be taken to
not be affected only because those interests do not coincide with the interests
of the applicant.
256—Interveners may raise new grounds for
review
(1) An intervener may raise in a review under this Division any of the
grounds specified in section 246 even if the ground that is raised by the
intervener is not raised by the applicant.
(2) To avoid doubt, it is for the intervener to establish the ground
referred to in subsection (1).
257—Parties to a review under this
Division
The parties to a review under this Division are—
(a) the applicant; and
(b) the original decision maker whose decision is the reviewable
regulatory decision being reviewed under this Division; and
(c) an intervener.
258—Matters that parties to a review may and may
not raise in a review
(1) An original decision maker whose decision is the reviewable regulatory
decision being reviewed under this Division may, in the review,
raise—
(a) a matter not raised by the applicant or an intervener that relates to
a ground for review, or a matter raised in support of a ground for review,
raised by the applicant or an intervener;
(b) a possible outcome or effect on the reviewable regulatory decision
being reviewed that the original decision maker considers may occur as a
consequence of the Tribunal making a determination setting aside or varying the
reviewable regulatory decision.
(2) A party (other than the original decision maker) to a review under
this Division may not raise any matter that was not raised in submissions in
relation to the reviewable regulatory decision before that decision was
made.
259—Tribunal must make
determination
(1) If, following an application, the Tribunal grants leave in accordance
with section 245, the Tribunal must make a determination in respect of the
application.
Note—
See section 260 for the time limit within which the Tribunal must make
its determination.
(2) A determination under this section may—
(a) affirm, set aside or vary the reviewable regulatory
decision;
(b) remit the matter back to the original decision maker to make the
decision again, in accordance with any direction or recommendation of the
Tribunal.
(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 original decision maker under this Law or the
Rules.
(4) In deciding whether to remit a matter back to the original decision
maker to make the decision again, the Tribunal must have regard to the nature
and relative complexities of—
(a) the reviewable regulatory decision; and
(b) the matter the subject of the review.
(5) A determination by the Tribunal affirming, setting aside or varying
the reviewable regulatory decision is, for the purposes of this Law (other than
this Part), to be taken to be a decision of the original decision
maker.
260—Target time limit for Tribunal for making a
determination under this Division
(1) The Tribunal must use its best endeavours to make a determination in
respect of the application for review under this Division—
(a) within 3 months after the Tribunal grants leave in accordance with
section 245 (the standard period); or
(b) if the standard period is extended under this section—that
period as extended.
(2) If the Tribunal is unable to make a determination in respect of the
application within the standard period, or that period as extended, the Tribunal
must, by notice in writing, extend the standard period or that period by a
specified period.
(3) The Tribunal must give a copy of the notice to—
(a) the applicant; and
(b) every other party to the application.
(4) The Tribunal may extend the standard period, or that period as
extended, more than once.
(5) If the Tribunal extends a period, it must publish a notice in a
newspaper circulating generally throughout Australia—
(a) stating that it has done so; and
(b) specifying a date by which it must now use its best endeavours to make
the determination.
261—Matters to be considered by Tribunal in making
determination
(1) Subject to this section, the Tribunal, in reviewing a reviewable
regulatory decision, must not consider any matter other than review related
matter.
(2) The Tribunal, in reviewing a reviewable regulatory decision,
must—
(a) in all cases, have regard to any document—
(i) prepared, and used, by the original decision maker for the purpose of
making the reviewable regulatory decision; and
(ii) that the decision maker has made publicly available; and
(b) in the case of a reviewable regulatory decision that is a Ministerial
coverage decision, also have regard to any document—
(i) prepared, and used, by the NCC for the purpose of making the NCC
recommendation relating to the Ministerial coverage decision; and
(ii) that the NCC has made publicly available.
(3) In addition, if in a review, the Tribunal is of the view that a ground
of review has been established, the Tribunal may allow new information or
material to be submitted if the new information or material—
(a) would assist it on any aspect of the determination to be made;
and
(b) was not unreasonably withheld from—
(i) in all cases, the original decision maker when the decision maker was
making the reviewable regulatory decision; and
(ii) in the case of a reviewable regulatory decision that is a Ministerial
coverage decision, the NCC when it was it making the NCC recommendation related
to Ministerial coverage decision.
(4) Subject to this Law, for the purpose of subsection (3)(b),
information or material not provided to the original decision maker or the NCC
(as the case requires) following a request for that information or material by
the original decision maker or the NCC under this Law or the Rules is to be
taken to have been unreasonably withheld.
(5) Subsection (4) does not limit what may constitute an unreasonable
withholding of information or material.
(6) In the case of a review of a reviewable regulatory decision of the AER
that is a decision to make a full access arrangement decision in place of an
access arrangement that the AER did not approve, the Tribunal may consider the
reasons of the AER for its decision not to approve the access
arrangement.
(7) In this section—
review related matter means—
(a) the application for review and submissions in support of the
application; and
(b) the reviewable regulatory decision and the written record of it and
any written reasons for it; and
(c) in the case of a reviewable regulatory decision that is an applicable
access arrangement decision—any document, proposal or information required
or allowed under the Rules to be submitted as part of the process for the making
of the decision; and
(d) any written submissions made to the original decision maker before the
reviewable regulatory decision was made or the NCC before the making of an NCC
recommendation; and
(e) any reports and materials relied on by the original decision maker in
making the reviewable regulatory decision or the NCC in making an NCC
recommendation; and
(f) any draft of the reviewable regulatory decision or NCC recommendation;
and
(g) any submissions on—
(i) the draft of the reviewable regulatory decision or the reviewable
regulatory decision itself considered by the original decision maker;
or
(ii) the draft of an NCC recommendation or the NCC recommendation itself
considered by the NCC; and
(h) the transcript (if any) of any hearing conducted by the original
decision maker for the purpose of making the reviewable regulatory
decision.
262—Assistance from NCC in certain
cases
(1) This section applies if the reviewable regulatory decision being
reviewed under this Division is a Ministerial coverage decision.
(2) The member of the Tribunal presiding in the review may require the NCC
to give information and other assistance and to make reports, as specified, by
the member for the purposes of the review.
Division 3—Tribunal review of AER information
disclosure decisions under section 329
263—Application for review
(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.
264—Exclusion of public in certain
cases
On the application of a party to a review under this Division, the Tribunal
may conduct the review in the absence of the public.
265—Determination in the
review
(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.
266—Tribunal must be taken to have affirmed
decision if decision not made within time
(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.
267—Assistance from the AER in certain
cases
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.
Division 4—General
268—Costs in a 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 an original decision
maker or small/medium user or consumer intervener to pay the costs of another
party to the review unless the Tribunal considers that the original decision
maker or intervener 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) the submissions or arguments made to the Tribunal by another
party.
(3) The Tribunal may make an order requiring a user or consumer intervener
(that is not a small/medium user or consumer intervener) that has intervened in
the review to pay all or part of the costs of another party to the review if the
Tribunal considers that the intervener 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) the submissions or arguments made to the Tribunal by another
party.
269—Amount of costs
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.
270—Review of Part
(1) The MCE must cause a review of this Part to be undertaken within 7
years after the commencement of this Part by a person nominated by the
MCE.
(2) The MCE must specify the matters to be addressed in the
review.
(3) The person undertaking the review must, during the review, invite
public comment and submissions about the matters to be addressed in the
review.
(4) The person undertaking the review must report, in writing, to the MCE
on the outcome of the review by the date specified by the MCE.
Part 6—Enforcement of access
determinations
271—Enforcement of access
determinations
(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.
272—Consent injunctions
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.
273—Interim injunctions
The Court may grant an interim injunction pending determination of an
application under section 271.
274—Factors relevant to granting a restraining
injunction
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.
275—Factors relevant to granting a mandatory
injunction
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.
276—Discharge or variation of injunction or other
order
The Court may discharge or vary an injunction or order granted under this
Part.
Part 7—Infringement notices
277—Power to serve notice
(1) The AER may serve an infringement notice on a person that the AER has
reason to believe 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.
278—Form of notice
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.
279—Infringement penalty
The infringement penalty for a breach of a civil penalty provision
is—
(a) if the breach is alleged to have been committed by a natural
person—$4 000 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision;
(b) if the breach is alleged to have been committed by a body
corporate—$20 000 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision.
280—AER cannot institute proceedings while
infringement notice on foot
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.
281—Late payment of penalty
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.
282—Withdrawal of notice
(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.
283—Refund of infringement
penalty
If an infringement notice is withdrawn in accordance with section 282,
the amount of any infringement penalty paid must be refunded by the
AER.
284—Payment expiates breach of civil penalty
provision
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.
285—Payment not to have certain
consequences
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.
286—Conduct in breach of more than 1 civil penalty
provision
(1) If the conduct of a person constitutes a breach of 2 or more civil
penalty provisions, 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.
Part 8—Further provision for corporate liability
for breaches of this Law etc
287—Definition
In this Part—
breach provision means an offence provision, a civil penalty
provision or a conduct provision.
288—Offences and breaches by
corporations
(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.
289—Corporations also in breach if officers and
employees are in breach
If an officer or employee of a corporation commits an act in their capacity
as officer or employee of the corporation 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.
Chapter 9—The making of the National Gas
Rules
Part 1—General
Division 1—Interpretation
290—Definitions
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 294 or 315)—publish in the South Australian
Government Gazette, on the AEMC's website and in a newspaper circulating
generally throughout Australia;
(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.
Division 2—Rule making tests
291—Application of national gas
objective
(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.
292—AEMC must take into account form of regulation
factors in certain cases
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.
293—AEMC must take into account revenue and pricing
principles in certain cases
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.
Part 2—Initial National Gas
Rules
294—South Australian Minister to make initial
National Gas Rules
(1) The Minister of the Crown in right of South Australia administering
Part 2 of the National Gas (South Australia) Act 2008 of South Australia
may make Rules for or with respect to—
(a) any matter or thing referred to in section 74 and Schedule 1 to
this Law;
(b) matters of a transitional nature relating to the transition from the
old access law and Gas Code to the application of this Law and the
Rules.
(2) In subsection (1)—
matters of a transitional nature include matters of an
application or savings nature.
(3) As soon as practicable after making Rules under subsection (1),
the Minister referred to in that subsection must—
(a) publish notice of the making of the Rules in the South Australian
Government Gazette; and
(b) make the Rules publicly available.
(4) 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.
(5) The notice referred to in subsection (3)(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 Minister referred to in subsection (1) makes Rules under
that subsection, the Minister cannot make another Rule under that
subsection.
Part 3—Procedure for the making of a Rule by the
AEMC
295—Initiation of making of a
Rule
(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.
296—AEMC may make more preferable Rule in certain
cases
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.
297—AEMC may make Rules that are consequential to a
Rule request
(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.
298—Content of requests for a
Rule
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.
299—Waiver of fee for Rule
requests
The AEMC may waive the payment of any fee prescribed by the Regulations for
the purposes of section 298.
300—Consolidation of 2 or more Rule
requests
(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.
301—Initial consideration of request for
Rule
(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.
302—AEMC may request further information from Rule
proponent in certain cases
(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.
303—Notice of proposed Rule
(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.
304—Publication of non-controversial or urgent
final Rule determination
(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 6
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).
305—"Fast track" Rules where previous public
consultation by gas market regulatory body or an AEMC
review
(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.
306—Right to make written submissions and
comments
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.
307—AEMC may hold public hearings before draft Rule
determination
(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).
308—Draft Rule determination
(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.
309—Right to make written submissions and comments
in relation to draft Rule determination
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.
310—Pre-final Rule determination hearing may be
held
(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.
311—Final Rule determination
(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.
312—Further draft Rule determination may be made
where proposed Rule is a proposed more preferable Rule
(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".
313—Making of Rule
(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.
314—Operation and commencement of
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.
315—Rule that is made to be published on website
and made available to the public
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.
316—Evidence of the National Gas
Rules
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.
Part 4—Miscellaneous provisions relating to rule
making by the AEMC
317—Extension of periods of time in Rule making
procedure
(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.
318—AEMC may extend period of time for making of
final Rule determination for further consultation
(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.
319—AEMC may publish written submissions and
comments unless confidential
(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.
320—AEMC must publicly report on Rules not made
within 12 months of public notification of requests
(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.
Chapter 10—General
Part 1—Provisions relating to applicable access
arrangements
321—Protection of certain pre-existing contractual
rights
(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.
322—Service provider may enter into agreement for
access different from applicable access arrangement
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.
323—Applicable access arrangements continue to
apply regardless of who provides 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.
Part 2—Handling of confidential
information
Division 1—Disclosure of confidential information
held by AER
324—Authorised disclosure of information given to
the AER in confidence
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.
325—Disclosure with prior written consent is
authorised
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.
326—Disclosure for purposes of court and tribunal
proceedings and to accord natural justice
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.
327—Disclosure of information given to the AER with
confidential information omitted
(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.
328—Disclosure of information given in confidence
does not identify anyone
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.
329—Disclosure of confidential information
authorised if detriment does not outweigh public benefit
(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.
Division 2—Disclosure of confidential information
held by relevant Ministers, NCC and AEMC
330—Definitions
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.
331—Confidentiality of information received for
scheme procedure purpose and for making of scheme decision
(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.
Part 3—Miscellaneous
332—Failure to make a decision under this Law or
the Rules within time does not invalidate the decision
(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.
333—Withdrawal of applications relating to coverage
or reclassification
(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.
334—Notification of Ministers of participating
jurisdictions of receipt of application
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.
335—Relevant Minister may request NCC to give
information or assistance
(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.
336—Savings and transitionals
Schedule 3 to this Law has effect.
Schedule 1—Subject matter for the National Gas
Rules
Section 74
Classification and coverage of pipelines |
|
1 |
The content of applications for coverage determinations, coverage
revocation determinations and 15-year no-coverage determinations. |
2 |
The content of coverage recommendations, coverage revocation
recommendations and no-coverage recommendations. |
3 |
The content of decisions about coverage determinations, coverage revocation
determinations and 15-year no-coverage determinations. |
4 |
The classification of pipelines by the NCC— |
|
(a) after a tender approval decision becomes irrevocable; or |
|
(b) during the process the approval of a voluntarily submitted access
arrangement. |
5 |
The content of applications for the reclassification of pipelines and
reclassification decisions. |
Price regulation exemptions |
|
6 |
The content of applications for price regulation exemptions. |
7 |
The content of recommendations by the NCC in relation to price regulation
exemptions. |
8 |
The content of decisions about price regulation exemptions. |
Light regulation determinations |
|
9 |
The content of applications for light regulation determinations or the
revocation of light regulation determinations. |
10 |
The content of decisions about light regulation determinations or the
revocation of light regulation determinations. |
11 |
The matters to be addressed by the NCC in making decisions about light
regulation determinations or the revocation of light regulation
determinations. |
Tender approvals for the construction of pipelines |
|
12 |
Applications for and the approval by the AER of a tender for the
construction of a pipeline (by means of which pipeline services are intended to
be provided) as a competitive tender process. |
13 |
The content of tender approval decisions. |
14 |
The procedure for the making and the publication of a tender approval
decision. |
15 |
Reports on the conduct of tender processes approved under tender approval
decisions. |
16 |
The lapsing or revocation of tender approval decisions. |
Access to pipeline services |
|
17 |
Access to pipeline services provided or that may be provided by means of a
scheme pipeline. |
18 |
The facilitation of requests for access to pipeline services provided by
means of a scheme pipeline. |
19 |
The transfer of capacity of a pipeline to deliver pipeline services,
including— |
|
(a) the circumstances when and how it is to happen; and |
|
(b) the legal consequences of a transfer of that capacity. |
20 |
The establishment and maintenance of registers of unutilised capacity of
pipelines to deliver pipeline services, including the information to be included
in such registers. |
21 |
The public availability of information on registers referred to in item
20. |
22 |
The provision of information to users of information about unutilised
capacity of pipelines to deliver pipeline services. |
23 |
The disclosure to the AER of information relating to access to light
regulation services. |
24 |
Reports on negotiations relating to access to light regulation
services. |
25 |
The publication of prices and other terms and conditions of access to light
regulation services. |
26 |
The conditions a service provider may impose for the provision of pipeline
services. |
Access arrangements |
|
27 |
The submission to the AER, by service providers, of access arrangements or
revisions to applicable access arrangements for approval by the AER including
requiring service providers to— |
|
(a) submit full access arrangements for pipeline services (that are not
light regulation services) provided by means of covered pipelines; |
|
(b) submit limited access arrangements for pipeline services provided by
means of international pipelines to which price regulation exemptions
apply; |
|
(c) submit more than 1 access arrangement; |
|
(d) to consolidate access arrangements. |
28 |
The content of access arrangements and applicable access arrangements
including— |
|
(a) a description of pipeline services provided or that may be provided by
means of scheme pipelines, including reference services; |
|
(b) the content of expansion and extension requirements; |
|
(c) the content of queuing requirements; |
|
(d) review submission dates, expiry dates and dates when revisions to
access arrangements and applicable access arrangements are to take
effect. |
29 |
Variations to applicable access arrangements. |
30 |
Information to accompany access arrangements submitted for approval, or
proposals for revisions or variations to access arrangements, including
information to enable a person to understand the background or basis or
derivation of the access arrangement or proposal. |
31 |
The provision and publication of information referred to in item
30. |
32 |
Decisions of the AER that approve (with or without revisions or
modifications) or not approve access arrangements or proposals for revisions or
variations to access arrangements. |
33 |
The making of access arrangements by the AER when it does not approve
access arrangements. |
34 |
The contents of decisions of the AER that— |
|
(a) approve or do not approve access arrangements or proposals for
revisions or variations to access arrangements; |
|
(b) make access arrangements. |
35 |
The procedure for the approval or making by the AER of access arrangements,
or approval by the AER of proposals for revisions or variations to applicable
access arrangements, including the publication and giving of— |
|
(a) access arrangements and proposals; |
|
(b) decisions of the AER; |
|
(c) applicable access arrangements; |
|
(d) drafts of decisions of access arrangements and proposals and decisions
of the AER. |
36 |
Matters to be addressed by the AER in approving or not approving an access
arrangement, or making an access arrangement, or approving or not approving
revisions or variations to an applicable access arrangement. |
Access disputes |
|
37 |
The procedure and time limits for the making of access
determinations. |
38 |
The appointment of persons to inquire into and report on the safe operation
of pipelines for the purpose of enabling the dispute resolution body to make an
access determination. |
39 |
The kinds of access determinations that may be made including
determinations— |
|
(a) requiring prospective users or users to make capital contributions
towards a service provider's capital expenditure for the installation or
construction of new facilities for the expansion of the capacity of
pipelines; |
|
(b) that enable service providers to charge prospective users or users
surcharges to recover capital expenditure for the installation or construction
of new facilities for the expansion of the capacity of pipelines. |
Regulatory economic methodologies |
|
40 |
The regulatory economic methodologies (including the use of the methodology
known as the "building block approach") to be applied by— |
|
(a) the AER in approving or making a full access arrangement; |
|
(b) the AER in approving revisions or a variation to an applicable access
arrangement that is a full access arrangement; |
|
(c) the dispute resolution body in making an access
determination. |
41 |
If the Rules provide for the regulatory economic methodology known as the
"building block approach" to be applied by— |
|
(a) the AER for the purpose of approving or making a full access
arrangement; or |
|
(b) the AER for the purpose of approving revisions or a variation to an
applicable access arrangement that is a full access arrangement; or |
|
(c) the dispute resolution body for the purpose of making an access
determination, the determination by the AER or the dispute resolution body (as the case
requires) of allowances for— |
|
(d) depreciation; |
|
(e) the operating costs of a service provider; |
|
(f) if the service provider is a corporation, the income tax payable by
corporations; |
|
(g) a rate of return on assets. |
42 |
The methodology known as "total factor productivity"— |
|
(a) as a regulatory economic methodology to be applied by— (i) the AER for the purpose of approving or making a full access
arrangement; (ii) the AER for the purpose of approving revisions or a variation to an
applicable access arrangement that is a full access arrangement; (iii) the dispute resolution body for the purpose of making an access
determination; |
|
(b) as an economic regulatory tool to inform and assist the AER in
applying, or analysing the application of, the regulatory economic methodology
known as the "building block approach" by the AER for the purpose
of— (i) approving or making a full access arrangement; or (ii) approving revisions or a variation to an applicable access
arrangement that is a full access arrangement; |
|
(c) as an economic regulatory tool to inform and assist the dispute
resolution body in applying, or analysing the application of, the regulatory
economic methodology known as the "building block approach" by the dispute
resolution body for the purpose of making an access determination. |
43 |
The capital base with respect to a covered pipeline, and of a new facility
for the purposes of— |
|
(a) approving or making a full access arrangement; or |
|
(b) approving revisions or a variation to an applicable access arrangement
that is a full access arrangement; or |
|
(c) making an access determination. |
44 |
The assessment, or treatment of, investment in covered pipelines and new
facilities by— |
|
(a) the AER for the purposes of approving or making a full access
arrangement; |
|
(b) the AER for the purposes of approving revisions or a variation to an
applicable access arrangement that is a full access arrangement; |
|
(c) the dispute resolution body for the purposes of making an access
determination. |
45 |
The economic framework and methodologies to be applied by the AER or the
dispute resolution body for the purposes of item 44. |
46 |
Incentives for service providers to make efficient operating and investment
decisions including, where applicable, service performance incentive
schemes. |
47 |
The treatment of capital contributions referred to in item 39(a) when
determining the capital base with respect to a covered pipeline. |
48 |
The handling of surcharges referred to in item 39(b). |
AER economic regulatory function or powers |
|
49 |
The way in which the AER performs or exercises an AER economic regulatory
function or power, including the basis on which the AER makes an AER economic
regulatory decision. |
50 |
Principles to be applied, and procedures to be followed, by the AER in
exercising or performing an AER economic regulatory function or power. |
Ring fencing requirements |
|
51 |
The content of a minimum ring fencing requirement. |
52 |
AER ring fencing determinations and additional ring fencing
requirements. |
53 |
Exemptions from a minimum ring fencing requirement. |
Associate contracts |
|
54 |
The approval by the AER of associate contracts and variations to associate
contracts. |
55 |
The grounds on which the AER may approve associate contracts and variations
to associate contracts, including grounds different from those specified in
section 147 or section 148. |
Natural Gas Services Bulletin Board |
|
56 |
The establishment and maintenance of a website that contains information in
relation to natural gas services. |
57 |
Principles to be applied, and procedures to be followed, by the Bulletin
Board operator in exercising a power or performing a function in relation to the
Natural Gas Services Bulletin Board. |
58 |
The kinds of information that may or must be given to the Bulletin Board
operator, the circumstances in which the information may or must be given, and
the procedure for giving the information. |
59 |
The kinds of information that may or must be included on the Natural Gas
Services Bulletin Board and the manner in which information is to be dealt with
before being put on the Natural Gas Services Bulletin Board, including, but not
limited to, the removal of information that would identify the person who gave
the information. |
60 |
Persons, or classes of persons, to whom the requirement to give information
does not apply and the circumstances in which the requirement does not apply,
including, but not limited to, the grant of power to the Bulletin Board operator
to exempt persons, or classes of persons, from that requirement. |
61 |
The circumstances in which the requirement to give information may start to
apply again to the persons, or classes of persons, mentioned in item
60. |
62 |
Persons, or classes of persons, who may access the Natural Gas Services
Bulletin Board and the class, or classes, of information to which they may have
access. |
63 |
The terms and conditions on which the persons, or classes of persons,
mentioned in item 62 may access the Natural Gas Services Bulletin
Board. |
64 |
The procedure for dealing with information that was, but is no longer, on
the Natural Gas Services Bulletin Board. |
65 |
Persons, or classes of persons, who may have access to information that
was, but is no longer on the Natural Gas Services Bulletin Board and the class,
or classes, of information to which they may have access. |
66 |
The terms and conditions on which the persons, or classes of persons,
mentioned in item 65 may have access to information that was, but is no longer
on the Natural Gas Services Bulletin Board. |
67 |
The terms and conditions on which service providers, or classes of service
providers, may recover amounts from the Bulletin Board operator for aggregating
Bulletin Board information for the Bulletin Board operator. |
68 |
Matters mentioned in items 56 to 67, in so far as they relate to emergency
situations. |
Miscellaneous |
|
69 |
Specification of pipeline services as reference services. |
70 |
The preparation (including public consultation) and publication by the AER
of discussion papers relating to the AER's functions and powers under this Law
and the Rules. |
71 |
Reviews by or on behalf of— |
|
(a) the AER or the AEMC; or |
|
(b) any other person appointed, in accordance with the Rules. |
72 |
Reporting and disclosing information to the AER. |
73 |
Procedure to be followed by the NCC or a relevant Minister in dealing with
an application for— |
|
(a) a coverage determination; |
|
(b) a coverage revocation determination; |
|
(c) a 15-year no-coverage determination; |
|
(d) a price regulation exemption; |
|
(e) a reclassification decision; |
|
(f) a light regulation determination; |
|
(g) a determination to revoke a light regulation determination. |
74 |
The publication and the giving of NCC recommendations or decisions or
Ministerial coverage decisions. |
75 |
The establishment and maintenance of a register by the AEMC of all previous
and current— |
|
(a) coverage determinations; and |
|
(b) coverage revocation determinations; and |
|
(c) greenfields pipeline incentives; and |
|
(d) decisions under section 99 not to make a coverage determination;
and |
|
(e) decisions under section 106 not to make a coverage revocation
determination; and |
|
(f) decisions under section 156 not to make a 15-year no-coverage
determination; and |
|
(g) decisions under section 1.13 of the Gas Code that a pipeline is not
covered under the old access law and Gas Code; and |
|
(h) decisions under section 1.34 of the Gas Code that coverage of a
covered pipeline under the old access law and Gas Code is not revoked;
and |
|
(i) tender approval decisions; and |
|
(j) light regulation determinations; and |
|
(k) decisions revoking light regulation determinations; and |
|
(l) covered pipelines, including their description and classification as
transmission pipelines or distribution pipelines; and |
|
(m) covered pipelines by means of which light regulation services are or
intended to be provided; and |
|
(n) international pipelines; and |
|
(o) applicable access arrangements. |
76 |
The inclusion on the register referred to in item 75 of descriptions
of— |
|
(a) all old scheme transmission pipelines and old scheme distribution
pipelines; and |
|
(b) all old scheme classifications or determinations. |
77 |
Time periods within which— |
|
(a) the NCC must make an NCC recommendation or decision; |
|
(b) the AER must make a decision (including an AER economic regulatory
decision). |
78 |
Extensions to periods of time referred to in item 77. |
79 |
Reports into failures to make decisions within a specified period of time
and the publication of such reports. |
80 |
Confidential information held by service providers, users, prospective
users, end users, the AER, the AEMC, the NCC, the Bulletin Board operator and
other persons or bodies conferred a function, or exercising a power or right, or
on whom an obligation is imposed, under the Rules, and the manner and
circumstances in which that information may be disclosed. |
81 |
The modification of section 3, 8 or 10.8 of the Gas Code as those sections
apply to a transitioned access arrangement (as defined in clause 1 of
Schedule 3 to this Law). Note— See also clause 30 of Schedule 3 to this Law. |
82 |
Any other matter or thing that is the subject of, or is of a kind dealt
with by, a provision of the Gas Code as in operation and effect immediately
before the commencement of section 20 of the National Gas (South Australia)
Act 2008 of South Australia. |
83 |
Any matter or thing relating to gas prescribed by the
Regulations. |
Schedule 2—Miscellaneous provisions relating to
interpretation
Section 20
Part 1—Preliminary
1—Displacement of Schedule by contrary
intention
(1) The application of this Schedule to this Law, the Regulations or other
statutory instrument (other than the National Gas Rules) may be displaced,
wholly or partly, by a contrary intention appearing in this Law or the
Regulations or that statutory instrument.
(2) The application of this Schedule to the National Gas Rules (other than
clauses 7, 12, 15, 17, 19 and 20, 23 to 26 and 31 to 44, 49, 52 and 53 of
this Schedule) may be displaced, wholly or partly, by a contrary intention
appearing in the National Gas Rules.
Part 2—General
2—Law to be construed not to exceed legislative
power of Legislature
(1) This Law is to be construed as operating to the full extent of, but so
as not to exceed, the legislative power of the Legislature of this
jurisdiction.
(2) If a provision of this Law, or the application of a provision of this
Law to a person, subject matter or circumstance, would, but for this clause, be
construed as being in excess of the legislative power of the Legislature of this
jurisdiction—
(a) it is a valid provision to the extent to which it is not in excess of
the power; and
(b) the remainder of this Law, and the application of the provision to
other persons, subject matters or circumstances, is not affected.
(3) Without limiting subclause (2), this Law is not to be construed
as imposing any duty on the Commonwealth Minister, the NCC, the Australian
Competition Tribunal or AER to perform a function or exercise a power if the
imposition of the duty would be in excess of the legislative power of the
Legislature of this jurisdiction.
Note—
The term function is defined in clause 10 to include
"duty".
(4) In particular, if a provision of this Law appears to impose a duty on
the Commonwealth Minister, the NCC, the Australian Competition Tribunal or AER
to perform a function or exercise a power in matters or circumstances in which
the assumption of the duty cannot be validly authorised under the law of the
Commonwealth, or is otherwise ineffective, the provision is to be construed as
if its operation were expressly confined to—
(a) acts or omissions of corporations to which section 51(xx) of the
Constitution of the Commonwealth applies; or
(b) acts or omissions taking place in the course of, or in relation to,
trade or commerce between this jurisdiction and places outside this jurisdiction
(whether within or outside Australia); or
(c) acts or omissions taking place outside Australia, or in relation to
things outside Australia.
(5) This clause does not limit the effect that a provision of this Law
would validly have apart from this clause.
3—Vacant provision
Note—
There is no clause 3.
4—Material that is, and is not, part of
Law
(1) The heading to a Chapter, Part, Division or Subdivision into which
this Law is divided is part of this Law.
(2) A Schedule to this Law is part of this Law.
(3) A heading to a section or subsection of this Law does not form part of
this Law.
(4) A note at the foot of a provision of this Law does not form part of
this Law.
(5) An example (being an example at the foot of a provision of this Law
under the heading "Example" or "Examples") does not form part of this
Law.
5—References to particular Acts and to
enactments
In this Law—
(a) an Act of this jurisdiction may be cited—
(i) by its short title; or
(ii) in another way sufficient in an Act of this jurisdiction for the
citation of such an Act; and
(b) a Commonwealth Act may be cited—
(i) by its short title; or
(ii) in another way sufficient in a Commonwealth Act for the citation of
such an Act,
together with a reference to the Commonwealth; and
(c) an Act of another jurisdiction may be cited—
(i) by its short title; or
(ii) in another way sufficient in an Act of the jurisdiction for the
citation of such an Act,
together with a reference to the jurisdiction.
6—References taken to be included in Act or Law
citation etc
(1) A reference in this Law to an Act includes a reference
to—
(a) the Act as originally enacted, and as amended from time to time since
its original enactment; and
(b) if the Act has been repealed and re-enacted (with or without
modification) since the enactment of the reference, the Act as re-enacted, and
as amended from time to time since its re-enactment.
(2) A reference in this Law to a provision of this Law or of an Act
includes a reference to—
(a) the provision as originally enacted, and as amended from time to time
since its original enactment; and
(b) if the provision has been omitted and re-enacted (with or without
modification) since the enactment of the reference, the provision as re-enacted,
and as amended from time to time since its re-enactment.
(3) Subclauses (1) and (2) apply to a reference in this Law to a law
of the Commonwealth or another jurisdiction as they apply to a reference in this
Law to an Act and to a provision of an Act.
7—Interpretation best achieving Law's
purpose
(1) In the interpretation of a provision of this Law, the interpretation
that will best achieve the purpose or object of this Law is to be preferred to
any other interpretation.
(2) Subclause (1) applies whether or not the purpose is expressly
stated in this Law.
8—Use of extrinsic material in
interpretation
(1) In this clause—
Law extrinsic material means relevant material not forming
part of this Law, including, for example—
(a) material that is set out in the document containing the text of this
Law as printed by authority of the Government Printer of South Australia;
and
(b) a relevant report of a committee of the Legislative Council or House
of Assembly of South Australia that was made to the Legislative Council or House
of Assembly of South Australia before the provision was enacted; and
(c) an explanatory note or memorandum relating to the Bill that contained
the provision, or any relevant document, that was laid before, or given to the
members of, the Legislative Council or House of Assembly of South Australia by
the member bringing in the Bill before the provision was enacted; and
(d) the speech made to the Legislative Council or House of Assembly of
South Australia by the member in moving a motion that the Bill be read a second
time; and
(e) material in the Votes and Proceedings of the Legislative Council or
House of Assembly of South Australia or in any official record of debates in the
Legislative Council or House of Assembly of South Australia; and
(f) a document that is declared by the Regulations to be a relevant
document for the purposes of this clause;
ordinary meaning means the ordinary meaning conveyed by a
provision having regard to its context in this Law and to the purpose of this
Law;
Rule extrinsic material means—
(a) a draft Rule determination; or
(b) a final Rule determination; or
(c) any document (however described)—
(i) relied on by the AEMC in making a draft Rule determination or final
Rule determination; or
(ii) adopted by the AEMC in making a draft Rule determination or final
Rule determination.
(2) Subject to subclause (3), in the interpretation of a provision of
this Law, consideration may be given to Law extrinsic material capable of
assisting in the interpretation—
(a) if the provision is ambiguous or obscure, to provide an interpretation
of it; or
(b) if the ordinary meaning of the provision leads to a result that is
manifestly absurd or is unreasonable, to provide an interpretation that avoids
such a result; or
(c) in any other case, to confirm the interpretation conveyed by the
ordinary meaning of the provision.
(3) Subject to subclause (4), in the interpretation of a provision of
the Rules, consideration may be given to Law extrinsic material or Rule
extrinsic material capable of assisting in the interpretation—
(a) if the provision is ambiguous or obscure, to provide an interpretation
of it; or
(b) if the ordinary meaning of the provision leads to a result that is
manifestly absurd or is unreasonable, to provide an interpretation that avoids
such a result; or
(c) in any other case, to confirm the interpretation conveyed by the
ordinary meaning of the provision.
(4) In determining whether consideration should be given to Law extrinsic
material or Rule extrinsic material, and in determining the weight to be given
to Law extrinsic material or Rule extrinsic material, regard is to be had
to—
(a) the desirability of a provision being interpreted as having its
ordinary meaning; and
(b) the undesirability of prolonging proceedings without compensating
advantage; and
(c) other relevant matters.
9—Compliance with forms
(1) If a form is prescribed or approved by or for the purpose of this Law,
strict compliance with the form is not necessary and substantial compliance is
sufficient.
(2) If a form prescribed or approved by or for the purpose of this Law
requires—
(a) the form to be completed in a specified way; or
(b) specified information or documents to be included in, attached to or
given with the form; or
(c) the form, or information or documents included in, attached to or
given with the form, to be verified in a specified way,
the form is not properly completed unless the requirement is complied
with.
Part 3—Terms and references
10—Definitions
In this Law—
Act means an Act of the Legislature of this
jurisdiction;
affidavit, in relation to a person allowed by law to affirm,
declare or promise, includes affirmation, declaration and promise;
amend includes—
(a) omit or omit and substitute; or
(b) alter or vary; or
(c) amend by implication;
appoint includes re-appoint;
breach includes fail to comply with;
business day means a day that is not—
(a) a Saturday or Sunday;
(b) observed as a public holiday on the same day in each of the
participating jurisdictions (except the Commonwealth);
calendar month means a period starting at the beginning of
any day of 1 of the 12 named months and ending—
(a) immediately before the beginning of the corresponding day of the next
named month; or
(b) if there is no such corresponding day, at the end of the next named
month;
calendar year means a period of 12 months beginning on 1
January;
commencement, in relation to this Law or an Act or a
provision of this Law or an Act, means the time at which this Law, the Act or
provision comes into operation;
confer, in relation to a function, includes impose;
contravene includes fail to comply with;
definition means a provision of this Law (however expressed)
that—
(a) gives a meaning to a word or expression; or
(b) limits or extends the meaning of a word or expression;
document includes—
(a) any paper or other material on which there is writing; or
(b) any paper or other material on which there are marks, figures, symbols
or perforations having a meaning for a person qualified to interpret them;
or
(c) any disc, tape or other article or any material from which sounds,
images, writings or messages are capable of being reproduced (with or without
the aid of another article or device);
estate includes easement, charge, right, title, claim,
demand, lien or encumbrance, whether at law or in equity;
expire includes lapse or otherwise cease to have
effect;
fail includes refuse;
financial year means a period of 12 months beginning on 1
July;
function includes duty;
Gazette means the Government Gazette of this
jurisdiction;
instrument includes a statutory instrument;
interest, in relation to land or other property,
means—
(a) a legal or equitable estate in the land or other property;
or
(b) a right, power or privilege over, or in relation to, the land or other
property;
make includes issue or grant;
minor means an individual who is under 18 years of
age;
modification includes addition, omission or
substitution;
month means a calendar month;
named month means 1 of the 12 months of the year;
number means—
(a) a number expressed in figures or words; or
(b) a letter; or
(c) a combination of a number so expressed and a letter;
oath, in relation to a person allowed by law to affirm,
declare or promise, includes affirmation, declaration or promise;
office includes position;
omit, in relation to a provision of this Law or an Act,
includes repeal;
party includes a body politic or body corporate as well as an
individual;
penalty includes a civil penalty, forfeiture or
punishment;
person includes a body politic or body corporate as well as
an individual;
power includes authority;
prescribed means prescribed by the Regulations;
printed includes typewritten, lithographed or reproduced by
any mechanical means;
proceeding means a legal or other action or
proceeding;
property means any legal or equitable estate or interest
(whether present or future, vested or contingent, or tangible or intangible) in
real or personal property of any description (including money), and includes
things in action;
provision, in relation to this Law or an Act, means words or
other matter that form or forms part of this Law or the Act, and
includes—
(a) a Part, Division, Subdivision, section, subsection, paragraph,
subparagraph, subsubparagraph or Schedule of or to this Law or the Act;
or
(b) a section, clause, subclause, item, column, table or form of or in a
Schedule to this Law or the Act; or
(c) the long title and any preamble to the Act;
record includes information stored or recorded by means of a
computer;
repeal includes—
(a) revoke or rescind; or
(b) repeal by implication; or
(c) abrogate or limit the effect of the law or instrument concerned;
or
(d) exclude from, or include in, the application of the law or instrument
concerned, any person, subject matter or circumstance;
sign includes the affixing of a seal or the making of a
mark;
statutory declaration means a declaration made under an Act,
or under a Commonwealth Act or an Act of another jurisdiction, that authorises a
declaration to be made otherwise than in the course of a judicial
proceeding;
statutory instrument means the Regulations or an instrument
made or in force under this Law;
swear, in relation to a person allowed by law to affirm,
declare or promise, includes affirm, declare or promise;
word includes any symbol, figure or drawing;
writing includes any mode of representing or reproducing
words in a visible form.
11—Provisions relating to defined terms and gender
and number
(1) If this Law defines a word or expression, other parts of speech and
grammatical forms of the word or expression have corresponding
meanings.
(2) Definitions in or applicable to this Law apply except so far as the
context or subject matter otherwise indicates or requires.
(3) In this Law, words indicating a gender include each other
gender.
(4) In this Law—
(a) words in the singular include the plural; and
(b) words in the plural include the singular.
12—Meaning of may and must etc
(1) In this Law, the word "may", or a similar word or expression, used in
relation to a power indicates that the power may be exercised or not exercised,
at discretion.
(2) In this Law, the word "must", or a similar word or expression, used in
relation to a power indicates that the power is required to be
exercised.
(3) This clause has effect despite any rule of construction to the
contrary.
13—Words and expressions used in statutory
instruments
(1) Words and expressions used in a statutory instrument have the same
meanings as they have, from time to time, in this Law, or relevant provisions of
this Law, under or for the purposes of which the instrument is made or in
force.
(2) This clause has effect in relation to an instrument except so far as
the contrary intention appears in the instrument.
14—References to Minister
(1) In this Law—
(a) a reference to a Minister is a reference to a Minister of the Crown of
this jurisdiction; and
(b) a reference to a particular Minister by title, or to "the Minister"
without specifying a particular Minister by title, includes a reference to
another Minister, or a member of the Executive Council of this jurisdiction, who
is acting for and on behalf of the Minister.
(2) In a provision of this Law, a reference to "the Minister", without
specifying a particular Minister by title is a reference to—
(a) the Minister of this jurisdiction administering the provision;
or
(b) if, for the time being, different Ministers of this jurisdiction
administer the provision in relation to different matters—
(i) if only 1 Minister of this jurisdiction administers the provision in
relation to the relevant matter, the Minister; or
(ii) if 2 or more Ministers of this jurisdiction administer the provision
in relation to the relevant matter, any 1 of those Ministers; or
(c) if paragraph (b) does not apply and, for the time being, 2 or
more Ministers administer the provision, any 1 of the Ministers.
(3) For the removal of doubt, it is declared that if—
(a) a provision of this Law is administered by 2 or more Ministers of this
jurisdiction; and
(b) the provision requires or permits anything to be done in relation to
any of the Ministers,
the provision does not require or permit it to be done in a particular case
by or in relation to more than 1 of the Ministers.
15—Production of records kept in computers
etc
If a person who keeps a record of information by means of a mechanical,
electronic or other device is required by or under this Law—
(a) to produce the information or a document containing the information to
a court, tribunal or person; or
(b) to make a document containing the information available for inspection
by a court, tribunal or person,
then, unless the court, tribunal or person otherwise
directs—
(c) the requirement obliges the person to produce or make available for
inspection, as the case may be, a document that reproduces the information in a
form capable of being understood by the court, tribunal or person; and
(d) the production to the court, tribunal or person of the document in
that form complies with the requirement.
16—References to this jurisdiction to be
implied
In this Law—
(a) a reference to an officer, office or statutory body is a reference to
such an officer, office or statutory body in and for this jurisdiction;
and
(b) a reference to a locality or other matter or thing is a reference to
such a locality or other matter or thing in and of this jurisdiction.
17—References to officers and holders of
offices
In this Law, a reference to a particular officer, or to the holder of a
particular office, includes a reference to the person for the time being
occupying or acting in the office concerned.
18—Reference to certain provisions of
Law
If a provision of this Law refers—
(a) to a Chapter, Part, section or Schedule by a number and without
reference to this Law, the reference is a reference to the Chapter, Part,
section or Schedule, designated by the number, of or to this Law; or
(b) to a Schedule without reference to it by a number and without
reference to this Law, the reference, if there is only 1 Schedule to this Law,
is a reference to the Schedule; or
(c) to a Division, Subdivision, subsection, paragraph, subparagraph,
subsubparagraph, clause, subclause, item, column, table or form by a number and
without reference to this Law, the reference is a reference to—
(i) the Division, designated by the number, of the Part in which the
reference occurs; and
(ii) the Subdivision, designated by the number, of the Division in which
the reference occurs; and
(iii) the subsection, designated by the number, of the section in which
the reference occurs; and
(iv) the paragraph, designated by the number, of the section, subsection,
Schedule or other provision in which the reference occurs; and
(v) the paragraph, designated by the number, of the clause, subclause,
item, column, table or form of or in the Schedule in which the reference occurs;
and
(vi) the subparagraph, designated by the number, of the paragraph in which
the reference occurs; and
(vii) the subsubparagraph, designated by the number, of the subparagraph
in which the reference occurs; and
(viii) the section, clause, subclause, item, column, table or form,
designated by the number, of or in the Schedule in which the reference
occurs,
as the case requires.
Part 4—Functions and powers
19—Performance of statutory
functions
(1) If this Law confers a function or power on a person or body, the
function may be performed, or the power may be exercised, from time to time as
occasion requires.
(2) If this Law confers a function or power on a particular officer or the
holder of a particular office, the function may be performed, or the power may
be exercised, by the person for the time being occupying or acting in the office
concerned.
(3) If this Law confers a function or power on a body (whether or not
incorporated), the performance of the function, or the exercise of the power, is
not affected merely because of vacancies in the membership of the
body.
20—Power to make instrument or decision includes
power to amend or repeal
If this Law authorises or requires the making of an instrument, decision or
determination—
(a) the power includes power to amend or repeal the instrument, decision
or determination; and
(b) the power to amend or repeal the instrument, decision or determination
is exercisable in the same way, and subject to the same conditions, as the power
to make the instrument, decision or determination.
21—Matters for which statutory instruments may make
provision
(1) If this Law authorises or requires the making of a statutory
instrument in relation to a matter, a statutory instrument made under this Law
may make provision for the matter by applying, adopting or incorporating (with
or without modification) the provisions of—
(a) an Act or statutory instrument; or
(b) another document (whether of the same or a different kind),
as in force at a particular time or as in force from time to
time.
(2) If a statutory instrument applies, adopts or incorporates the
provisions of a document, the statutory instrument applies, adopts or
incorporates the provisions as in force from time to time, unless the statutory
instrument otherwise expressly provides.
(3) A statutory instrument may—
(a) be of general or limited application;
(b) vary according to the persons, times, places or circumstances to which
it is expressed to apply.
(4) A statutory instrument may authorise a matter or thing to be from time
to time determined, applied or regulated by a specified person or
body.
(5) If this Law authorises or requires a matter to be regulated by
statutory instrument, the power may be exercised by prohibiting by statutory
instrument the matter or any aspect of the matter.
(6) If this Law authorises or requires provision to be made with respect
to a matter by statutory instrument, a statutory instrument made under this Law
may make provision with respect to a particular aspect of the matter despite the
fact that provision is made by this Law in relation to another aspect of the
matter or in relation to another matter.
(7) A statutory instrument may provide for the review of, or a right of
appeal against, a decision made under the statutory instrument, or this Law, and
may, for that purpose, confer jurisdiction on any court, tribunal, person or
body.
(8) A statutory instrument may require a form prescribed by or under the
statutory instrument, or information or documents included in, attached to or
given with the form, to be verified by statutory declaration.
(9) In this clause—
statutory instrument does not include the National Gas
Rules.
22—Presumption of validity and power to
make
(1) All conditions and preliminary steps required for the making of a
statutory instrument are presumed to have been satisfied and performed in the
absence of evidence to the contrary.
(2) A statutory instrument is taken to be made under all powers under
which it may be made, even though it purports to be made under this Law or a
particular provision of this Law.
23—Appointments may be made by name or
office
(1) If this Law authorises or requires a person or body—
(a) to appoint a person to an office; or
(b) to appoint a person or body to exercise a power; or
(c) to appoint a person or body to do another thing,
the person or body may make the appointment by—
(d) appointing a person or body by name; or
(e) appointing a particular officer, or the holder of a particular office,
by reference to the title of the office concerned.
(2) An appointment of a particular officer, or the holder of a particular
office, is taken to be the appointment of the person for the time being
occupying or acting in the office concerned.
24—Acting appointments
(1) If this Law authorises a person or body to appoint a person to act in
an office, the person or body may, in accordance with this Law,
appoint—
(a) a person by name; or
(b) a particular officer, or the holder of a particular office, by
reference to the title of the office concerned,
to act in the office.
(2) The appointment may be expressed to have effect only in the
circumstances specified in the instrument of appointment.
(3) The appointer may—
(a) determine the terms and conditions of the appointment, including
remuneration and allowances; and
(b) terminate the appointment at any time.
(4) The appointment, or the termination of the appointment, must be in, or
evidenced by, writing signed by the appointer.
(5) The appointee must not act for more than 1 year during a vacancy in
the office.
(6) If the appointee is acting in the office otherwise than because of a
vacancy in the office and the office becomes vacant, then, subject to
subclause (2), the appointee may continue to act until—
(a) the appointer otherwise directs; or
(b) the vacancy is filled; or
(c) the end of a year from the day of the vacancy,
whichever happens first.
(7) The appointment ceases to have effect if the appointee resigns by
writing signed and delivered to the appointer.
(8) While the appointee is acting in the office—
(a) the appointee has all the powers and functions of the holder of the
office; and
(b) this Law and other laws apply to the appointee as if the appointee
were the holder of the office.
(9) Anything done by or in relation to a person purporting to act in the
office is not invalid merely because—
(a) the occasion for the appointment had not arisen; or
(b) the appointment had ceased to have effect; or
(c) the occasion for the person to act had not arisen or had
ceased.
(10) If this Law authorises the appointer to appoint a person to act
during a vacancy in the office, an appointment to act in the office may be made
by the appointer whether or not an appointment has previously been made to the
office.
25—Powers of appointment imply certain incidental
powers
(1) If this Law authorises or requires a person or body to appoint a
person to an office—
(a) the power may be exercised from time to time as occasion requires;
and
(b) the power includes—
(i) power to remove or suspend, at any time, a person appointed to the
office; and
(ii) power to appoint another person to act in the office if a person
appointed to the office is removed or suspended; and
(iii) power to reinstate or reappoint a person removed or suspended;
and
(iv) power to appoint a person to act in the office if it is vacant
(whether or not the office has ever been filled); and
(v) power to appoint a person to act in the office if the person appointed
to the office is absent or is unable to discharge the functions of the office
(whether because of illness or otherwise).
(2) The power to remove or suspend a person under subclause (1)(b)
may be exercised even if this Law provides that the holder of the office to
which the person was appointed is to hold office for a specified
period.
(3) The power to make an appointment under subclause (1)(b) may be
exercised from time to time as occasion requires.
(4) An appointment under subclause (1)(b) may be expressed to have
effect only in the circumstances specified in the instrument of
appointment.
26—Delegation
(1) If this Law authorises a person to delegate a function or power, the
person may, in accordance with this Law, delegate the power to—
(a) a person by name; or
(b) a particular officer, or the holder of a particular office, by
reference to the title of the office concerned.
(2) The delegation—
(a) may be general or limited; and
(b) may be made from time to time; and
(c) may be revoked, wholly or partly, by the delegator.
(3) The delegation, or a revocation of the delegation, must be in, or
evidenced by, writing signed by the delegator or if the delegator is a body
corporate, by a person authorised by the body corporate for the
purpose.
(4) A delegated function or power may be exercised only in accordance with
any conditions to which the delegation is subject.
(5) The delegate may, in the exercise of a delegated function or power, do
anything that is incidental to the delegated function or power.
(6) A delegated function or power that purports to have been exercised by
the delegate is taken to have been duly exercised by the delegate unless the
contrary is proved.
(7) A delegated function or power that is duly exercised by the delegate
is taken to have been exercised by the delegator.
(8) If, when exercised by the delegator, a function or power is, under
this Law, dependent on the delegator's opinion, belief or state of mind in
relation to a matter, the function or power, when exercised by the delegate, is
dependent on the delegate's opinion, belief or state of mind in relation to the
matter.
(9) If a function or power is delegated to a particular officer or the
holder of a particular office—
(a) the delegation does not cease to have effect merely because the person
who was the particular officer or the holder of the particular office when the
power was delegated ceases to be the officer or the holder of the office;
and
(b) the function or power may be exercised by the person for the time
being occupying or acting in the office concerned.
(10) A function or power that has been delegated may, despite the
delegation, be exercised by the delegator.
27—Exercise of powers between enactment and
commencement
(1) If a provision of this Law (the empowering provision)
that does not commence on its enactment would, had it commenced, confer a
power—
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or administrative
character; or
(c) to do another thing,
then—
(d) the power may be exercised; and
(e) anything may be done for the purpose of enabling the exercise of the
power or of bringing the appointment, instrument or other thing into
effect,
before the empowering provision commences.
(2) If a provision of an Act of South Australia (the empowering
provision) that does not commence on its enactment would, had it
commenced, amend a provision of this Law so that it would confer a
power—
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or administrative
character; or
(c) to do another thing,
then—
(d) the power may be exercised; and
(e) anything may be done for the purpose of enabling the exercise of the
power or of bringing the appointment, instrument or other thing into
effect,
before the empowering provision commences.
(3) If—
(a) this Law has commenced and confers a power to make a statutory
instrument (the basic instrument making power); and
(b) a provision of an Act of South Australia that does not commence on its
enactment would, had it commenced, amend this Law so as to confer additional
power to make a statutory instrument (the additional instrument making
power),
then—
(c) the basic instrument making power and the additional instrument making
power may be exercised by making a single instrument; and
(d) any provision of the instrument that required an exercise of the
additional instrument making power is to be treated as made under
subclause (2).
(4) If an instrument, or a provision of an instrument, is made under
subclause (1) or (2) that is necessary for the purpose of—
(a) enabling the exercise of a power mentioned in the subclause;
or
(b) bringing an appointment, instrument or other thing made or done under
such a power into effect,
the instrument or provision takes effect—
(c) on the making of the instrument; or
(d) on such later day (if any) on which, or at such later time (if any) at
which, the instrument or provision is expressed to take effect.
(5) If—
(a) an appointment is made under subclause (1) or (2); or
(b) an instrument, or a provision of an instrument, made under
subclause (1) or (2) is not necessary for a purpose mentioned in
subclause (4),
the appointment, instrument or provision takes effect—
(c) on the commencement of the relevant empowering provision; or
(d) on such later day (if any) on which, or at such later time (if any) at
which, the appointment, instrument or provision is expressed to take
effect.
(6) Anything done under subclause (1) or (2) does not confer a right,
or impose a liability, on a person before the relevant empowering provision
commences.
(7) After the enactment of a provision mentioned in subclause (2) but
before the provision's commencement, this clause applies as if the references in
subclauses (2) and (5) to the commencement of the empowering provision were
references to the commencement of the provision mentioned in subclause (2)
as amended by the empowering provision.
(8) In the application of this clause to a statutory instrument, a
reference to the enactment of the instrument is a reference to the making of the
instrument.
Part 5—Distance and time
28—Matters relating to distance and
time
(1) In the measurement of distance for the purposes of this Law, the
distance is to be measured along the shortest road ordinarily used for
travelling.
(2) If a period beginning on a given day, act or event is provided or
allowed for a purpose by this Law, the period is to be calculated by excluding
the day, or the day of the act or event, and—
(a) if the period is expressed to be a specified number of clear days or
at least a specified number of days, by excluding the day on which the purpose
is to be fulfilled; and
(b) in any other case, by including the day on which the purpose is to be
fulfilled.
(3) If the last day of a period provided or allowed by this Law for doing
anything is not a business day in the place in which the thing is to be or may
be done, the thing may be done on the next business day in the place.
(4) If the last day of a period provided or allowed by this Law for the
filing or registration of a document is a day on which the office is closed
where the filing or registration is to be or may be done, the document may be
filed or registered at the office on the next day that the office is
open.
(5) If no time is provided or allowed for doing anything, the thing is to
be done as soon as possible, and as often as the prescribed occasion
happens.
(6) If, in this Law, there is a reference to time, the reference is, in
relation to the doing of anything in a jurisdiction, a reference to the legal
time in the jurisdiction.
Part 6—Service of documents
29—Service of documents and meaning of service by
post etc
(1) If this Law requires or permits a document to be served on a person
(whether the expression "deliver", "give", "notify", "send" or "serve" or
another expression is used), the document may be served—
(a) on a natural person—
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by post, facsimile or similar
facility to the last known address of the place of residence or usual place of
business of the person; or
(iii) by sending it electronically to that person; or
(b) on a body corporate—
(i) by leaving it at the registered office or usual place of business of
the body corporate with an officer of the body corporate; or
(ii) by sending it by post, facsimile or similar facility to its
registered office or its usual place of business; or
(iii) by sending it electronically to that body corporate or an officer of
the body corporate.
(2) Nothing in subclause (1)—
(a) affects the operation of another law that authorises the service of a
document otherwise than as provided in the subclause; or
(b) affects the power of a court or tribunal to authorise service of a
document otherwise than as provided in the subclause.
30—Meaning of service by post
etc
(1) If this Law requires or permits a document to be served by post
(whether the expression "deliver", "give", "notify", "send" or "serve" or
another expression is used), service—
(a) may be effected by properly addressing, prepaying and posting the
document as a letter; and
(b) is taken to have been effected at the time at which the letter would
be delivered in the ordinary course of post, unless the contrary is
proved.
(2) If this Law requires or permits a document to be served by a
particular postal method (whether the expression "deliver", "give", "notify",
"send" or "serve" or another expression is used), the requirement or permission
is taken to be satisfied if the document is posted by that method or, if that
method is not available, by the equivalent, or nearest equivalent, method
provided for the time being by Australia Post.
Part 7—Evidentiary matters
Division 1—Publication on
websites
31—Definitions
In this Division—
decision maker means a relevant Minister, the NCC, the AER,
the AEMC or the Bulletin Board operator;
relevant decision or document means—
(a) a decision (however described) or determination (however described) of
a decision maker under this Law or the Rules; or
(b) an access arrangement to which a decision of the AER under the Law or
Rules relates;
relevant notice means a notice under the Rules calling for or
inviting submissions or comments in relation to a relevant decision or
document;
32—Publication of decisions on
websites
(1) For the purposes of this Law, a relevant decision or document or
relevant notice that is required by this Law or the Rules to be published on a
website is to be taken to be published on the website if—
(a) the relevant decision or document or relevant notice is made
accessible in full on the website; or
(b) notice of the making or publication of the relevant decision or
document or relevant notice is made accessible on that website and the relevant
decision or document or relevant notice is made accessible separately in full on
that website or in any other identified location.
(2) The date on which the relevant decision or document or relevant notice
is published on the website is the date notified by the relevant decision maker
on the website as the date of the relevant decision's or document's or relevant
notice's publication (being not earlier than the date on which it was first made
so accessible).
Division 2—Evidentiary
certificates
33—Definitions
In this Division—
acting SES employee has the same meaning as in section 17AA
of the Acts Interpretation Act 1901 of the Commonwealth;
AEMC chief executive means the chief executive of the AEMC
appointed under section 16 of the Australian Energy Market Commission
Establishment Act 2004 of South Australia;
AEMC Commissioner means a Commissioner within the meaning of
the Australian Energy Market Commission Establishment Act 2004 of
South Australia;
AER member has the same meaning as in the Trade Practices
Act 1974 of the Commonwealth;
NCC member means a Councillor within the meaning of the
Trade Practices Act 1974 of the Commonwealth;
relevant notice has the same meaning as in
clause 31;
SES employee has the same meaning as in section 17AA of the
Acts Interpretation Act 1901 of the Commonwealth.
34—Evidentiary
certificates—AER
In any proceedings under this Law, a certificate signed or purported to be
signed by 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, stating any of the following matters is evidence of the
matter:
(a) a stated document is 1 of the following things, made, given, served or
issued under this Law or the Rules:
(i) a decision (however described) or determination (however
described);
(ii) an authorisation under section 32;
(iii) a general regulatory information order;
(iv) a notice, notification, direction or requirement;
(b) a stated document is a copy of a thing referred to in
paragraph (a);
(c) on a stated day, a person was or was not:
(i) given a decision (however described), or determination (however
described);
(ii) authorised as an authorised person (within the meaning of
section 31);
(iii) served a notice under section 42 or a regulatory information
notice;
(iv) notified under section 52;
(v) notified under section 143(3) of the making of an AER ring
fencing determination;
(d) on a stated day any of the following were published on the AER's
website:
(i) a decision (however described) or determination (however
described);
(ii) a general regulatory information order;
(iii) a full access arrangement or revisions to an applicable access
arrangement submitted for approval under section 132;
(iv) a limited access arrangement or revisions to an applicable access
arrangement submitted for approval under section 116 or 168;
(v) a relevant notice.
35—Evidentiary
certificates—AEMC
In any proceedings under this Law, a certificate signed or purported to be
signed by a Commissioner or the AEMC chief executive, stating any of the
following matters is evidence of the matter:
(a) a stated document is a decision (however described), made, given,
served or issued under this Law;
(b) a stated document is a copy of a thing referred to in
paragraph (a);
(c) on a stated day, a person was or was not given a decision (however
described);
(d) on a stated day a relevant notice was published on the AEMC's
website.
36—Evidentiary
certificates—NCC
In any proceedings under this Law, a certificate signed or purported to be
signed by an NCC member, or an SES employee or acting SES employee who is an
employee assisting the NCC as mentioned in section 29M of the Trade Practices
Act 1974 of the Commonwealth, stating any of the following matters is
evidence of the matter:
(a) a stated document is—
(i) an NCC recommendation or decision;
(ii) a decision of the NCC not to make a coverage determination because of
section 96;
(b) on a stated day, a person was or was not given a reclassification
decision;
(c) on a stated day any 1 of the following was, in accordance with the
Rules, published on the NCC's website:
(i) a Ministerial coverage decision;
(ii) an NCC recommendation or decision;
(iii) a decision of the NCC not to make a coverage determination because
of section 96;
(iv) a relevant notice.
37—Evidentiary certificates—relevant Minister
and Commonwealth Minister
In any proceedings under this Law, a certificate signed or purported to be
signed by a relevant Minister or the Commonwealth Minister stating any of the
following matters is evidence of the matter:
(a) a stated document is a Ministerial coverage decision; or
(b) on a stated day a person or the NCC was or was not given a Ministerial
coverage decision.
38—Evidentiary certificates—Bulletin Board
operator
In any proceedings under this Law, a certificate signed or purported to be
signed by the chief executive officer of the Bulletin Board operator, stating
any of the following matters is evidence of the matter:
(a) a stated document is a decision (however described), made, given,
served or issued under this Law;
(b) a stated document is a copy of a thing referred to in
paragraph (a);
(c) on a stated day, a person was or was not given a decision (however
described);
(d) on a stated day a relevant notice was published on the Bulletin Board
operator's website.
Part 8—Commencement of this Law and statutory
instruments
39—Time of commencement of this Law or a provision
of this Law
If a provision of an Act of South Australia provides that this Law or a
provision of this Law shall commence, or be deemed to have commenced, on a
particular day, it shall commence, or be deemed to have commenced, at the
beginning of that day.
40—Time of commencement of a
Rule
(1) If a Rule provides that the Rule shall commence on a particular day,
it shall commence at the beginning of that day.
(2) If a provision of an Act of South Australia provides that a Rule is
deemed to have commenced on a particular day, the Rule shall be deemed to have
commenced at the beginning of that day.
(3) If a notice published in the South Australian Government Gazette under
Chapter 9 Part 2 or section 314 provides that a Rule shall commence on a
particular day, the Rule shall commence at the beginning of that day.
Part 9—Effect of repeal, amendment or
expiration
41—Time of Law, the Regulations or Rules ceasing to
have effect
If a provision of this Law, the Regulations or the Rules is
expressed—
(a) to expire on a specified day; or
(b) to remain or continue in force, or otherwise have effect, until a
specified day,
the provision has effect until the last moment of the specified
day.
42—Repealed Law, Regulation or Rule provisions not
revived
(1) If a provision of this Law is repealed or amended by an Act of South
Australia or a provision of an Act of South Australia, the provision is not
revived merely because the Act or the provision of the Act—
(a) is later repealed or amended; or
(b) later expires.
(2) If a provision of the Regulations or the Rules is repealed or amended
by a Regulation or a Rule, the provision is not revived merely because the
Regulation or Rule—
(a) is later repealed or amended; or
(b) later expires.
43—Saving of operation of repealed Law, Regulation
or Rule provisions
(1) The repeal, amendment or expiry of a provision of this Law, the
Regulations or the Rules does not—
(a) revive anything not in force or existing at the time the repeal,
amendment or expiry takes effect; or
(b) affect the previous operation of the provision or anything suffered,
done or begun under the provision; or
(c) affect a right, privilege or liability acquired, accrued or incurred
under the provision; or
(d) affect a penalty incurred in relation to an offence arising under the
provision; or
(e) affect an investigation, proceeding or remedy in relation to such a
right, privilege, liability or penalty.
(2) Any such penalty may be imposed and enforced, and any such
investigation, proceeding or remedy may be begun, continued or enforced, as if
the provision had not been repealed or amended or had not expired.
44—Continuance of repealed
provisions
(1) If an Act of South Australia repeals some provisions of this Law and
enacts new provisions in substitution for the repealed provisions, the repealed
provisions continue in force until the new provisions commence.
(2) If a Regulation or Rule repeals some provisions of the Regulations or
Rules and enacts new provisions in substitution for the repealed provisions, the
repealed provisions continue in force until the new provisions
commence.
45—Law and amending Acts to be read as
one
This Law and all Acts of this jurisdiction amending this Law are to be read
as one.
Part 10—Offences under this
Law
46—Penalty at foot of
provision
In this Law, a penalty specified at the foot of—
(a) a section (whether or not the section is divided into subsections);
or
(b) a subsection (but not at the end of a section); or
(c) a section or subsection and expressed in such a way as to indicate
that it applies only to part of the section or subsection,
indicates that an offence mentioned in the section, subsection or part is
punishable on conviction or, if no offence is mentioned, a contravention of the
section, subsection or part constitutes an offence against the provision that is
punishable, on conviction, by a penalty not more than the specified
penalty.
47—Penalty other than at foot of
provision
(1) In this Law, a penalty specified for an offence, or a contravention of
a provision, indicates that the offence is punishable on conviction, or the
contravention constitutes an offence against the provision that is punishable,
on conviction, by a penalty not more than the specified penalty.
(2) This clause does not apply to a penalty to which clause 36
applies.
48—Indictable offences and summary
offences
(1) An offence against this Law that is not punishable by imprisonment is
punishable summarily.
(2) An offence against this Law that is punishable by imprisonment is,
subject to subclause (3), punishable on indictment.
(3) If—
(a) a proceeding for an offence against this Law that is punishable by
imprisonment is instituted in a court of summary jurisdiction; and
(b) the prosecutor requests the court to hear and determine the
proceeding,
the offence is punishable summarily and the court must hear and determine
the proceeding.
(4) A court of summary jurisdiction must not—
(a) impose, in relation to a single offence against this Law, a period of
imprisonment of more than 2 years; or
(b) impose, in relation to offences against the Law, cumulative periods of
imprisonment that are, in total, more than 5 years.
(5) Nothing in this clause renders a person liable to be punished more
than once in relation to the same offence.
49—Double jeopardy
(1) If an act or omission constitutes an offence—
(a) under this Law as applied as a law of this jurisdiction; and
(b) under this Law as applied as a law of another jurisdiction,
and the offender has been punished in relation to the offence under the law
mentioned in paragraph (b), the offender is not liable to be punished in
relation to the offence mentioned in paragraph (a).
(2) If an act or omission constitutes—
(a) a breach of a civil penalty provision of this Law as applied as a law
of this jurisdiction; and
(b) a breach of a civil penalty provision of this Law as applied as a law
of another jurisdiction,
and the person in breach of the civil penalty provision mentioned in
paragraph (a) has been punished in relation to the civil penalty provision
mentioned in paragraph (b), the person is not liable in relation to the
breach of the civil penalty provision mentioned in paragraph (a).
(3) The Court must not make a declaration that a person is in breach of a
provision of this Law, the Regulations or the Rules that is not an offence
provision if the person has been convicted of an offence constituted by conduct
that is substantially the same as the conduct constituting the breach.
(4) Proceedings for a declaration referred to in subclause (3) are
stayed if—
(a) criminal proceedings are commenced or have already been commenced
against the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same
as the conduct alleged to constitute the breach.
(5) The proceedings for the declaration referred to in subclause (3)
may be resumed if the person is not convicted of the offence. Otherwise, the
proceedings for the declaration must be dismissed.
50—Aiding and abetting, attempts
etc
(1) A person who aids, abets, counsels or procures, or by act or omission
is in any way directly or indirectly concerned in or a party to, the commission
of an offence against this Law is taken to have committed that offence and is
liable to the penalty for the offence.
(2) A person who attempts to commit an offence against this Law commits an
offence and is punishable as if the attempted offence had been
committed.
Part 11—Instruments under this
Law
51—Schedule applies to statutory
instruments
(1) This Schedule applies to a statutory instrument, and to things that
may be done or are required to be done under a statutory instrument, in the same
way as it applies to this Law, and things that may be done or are required to be
done under this Law, except so far as the context or subject matter otherwise
indicates or requires.
(2) The fact that a provision of this Schedule refers to this Law and not
also to a statutory instrument does not, by itself, indicate that the provision
is intended to apply only to this Law.
(3) In this clause—
statutory instrument includes the Regulations or the
Rules.
52—National Gas Rules to be construed so as not to
exceed the legislative power of the Legislature of this jurisdiction or the
powers conferred by this Law
(1) The National Gas Rules are to be construed as operating to the full
extent of, but so as not to exceed, the legislative power of the Legislature of
this jurisdiction or the power conferred by this Law under which they are
made.
(2) If a provision of the National Gas Rules, or the application of a
provision of the National Gas Rules to a person, subject matter or circumstance,
would, but for this clause, be construed as being in excess of the legislative
power of the Legislature of this jurisdiction or the power conferred by this Law
under which it is made—
(a) it is a valid provision to the extent to which it is not in excess of
that power; and
(b) the remainder of the National Gas Rules, and the application of the
provision to other persons, subject matters, or circumstances, is not
affected.
(3) Without limiting subclause (2), the National Gas Rules are not to
be construed as imposing any duty on the AER to perform a function or exercise a
power if the imposition of the duty would be in excess of the legislative power
of the Legislature of this jurisdiction.
Note—
The term function is defined in clause 10 to include
"duty".
(4) In particular, if a provision of the National Gas Rules appears to
impose a duty on the AER to perform a function or exercise a power in matters or
circumstances in which the assumption of the duty cannot be validly authorised
under a law of the Commonwealth, or is otherwise ineffective, the provision is
to be construed as if its operation were expressly confined to—
(a) acts or omissions of corporations to which section 51(xx) of the
Constitution of the Commonwealth applies; or
(b) acts or omissions taking place in the course of, or in relation to,
trade or commerce between this jurisdiction and places outside this jurisdiction
(whether within or outside Australia); or
(c) acts or omissions taking place outside Australia, or in relation to
things outside Australia.
(5) This clause does not limit the effect that a provision of the National
Gas Rules would validly have apart from this clause.
53—Invalid Rules
(1) If the Court orders (by declaration or otherwise) that a Rule is
invalid, the order of the Court does not—
(a) revive anything not in force or existing at the time of the order of
the Court; or
(b) affect the previous operation of the Rule or anything suffered, done
or begun under the Rule; or
(c) affect a right, privilege or liability acquired, accrued or incurred
under the Rule; or
(d) affect a penalty arising because of a breach of the Rule; or
(e) affect an investigation, proceeding or remedy in relation to such a
right, privilege, liability or penalty.
(2) A penalty may be imposed and enforced, and any such investigation,
proceeding or remedy may be begun, continued or enforced as if the Rule had not
been ordered by the Court as invalid.
Schedule 3—Savings and
transitionals
Section 336
Part 1—General
1—Definitions
In this Schedule—
binding no-coverage determination has the same meaning as in
section 13A of the old access law;
commencement day means the day on which section 20 of the new
application Act comes into operation;
current access arrangement means an Access Arrangement as
defined by section 10.8 of the Gas Code and in effect immediately before the
commencement day;
new application Act means the National Gas (South
Australia) Act 2008 of South Australia;
old scheme coverage application means an application under
section 1.3 of the Gas Code in respect of which a determination under
section 1.13 of the Gas Code has not been made before the commencement
day;
old scheme coverage revocation application means an
application under section 1.25 of the Gas Code in respect of which an old scheme
coverage revocation determination has not been made before the commencement
day;
old scheme coverage determination means a determination of an
old scheme relevant Minister under section 1.13 of the Gas Code—
(a) that a pipeline is covered; and
(b) that is in effect immediately before the commencement day;
old scheme coverage revocation determination means a
determination of an old scheme relevant Minister under section 1.34 of the Gas
Code;
old scheme covered pipeline means a covered pipeline within
the meaning of section 10.8 of the Gas Code;
old scheme limited access arrangement means a limited access
arrangement (within the meaning of section 13A of the old access
law)—
(a) approved under section 13U of that law; and
(b) in effect immediately before the commencement day;
old scheme price regulation exemption means a price
regulation exemption within the meaning of section 13A of the old access
law;
old scheme relevant Minister means a relevant Minister within
the meaning of section 2 of the old access law;
pending old scheme coverage determination means a
determination of an old scheme relevant Minister under section 1.13 of the Gas
Code that a pipeline is covered that—
(a) has not taken effect before the commencement day; but
(b) is intended to take effect on or after that day;
pending old scheme no-coverage determination means a
determination of an old scheme relevant Minister under section 1.13 of the Gas
Code that a pipeline is not covered that—
(a) has not taken effect before the commencement day; but
(b) is intended to take effect on or after that day;
pending old scheme coverage non-revocation determination
means a determination of an old scheme relevant Minister under section 1.34 of
the Gas Code that coverage of a covered pipeline not be revoked
that—
(a) has not taken effect before the commencement day; but
(b) is intended to take effect on or after that day;
pending old scheme coverage revocation determination means a
determination of an old scheme relevant Minister under section 1.34 of the Gas
Code that coverage of a covered pipeline be revoked that—
(a) has not taken effect before the commencement day; but
(b) is intended to take effect on or after that day;
relevant appeals body has the same meaning as in section 2 of
the old access law;
transitioned access arrangement means—
(a) a current access arrangement; or
(b) an access arrangement approved, or drafted and approved, in accordance
with clause 28; or
(c) a current access arrangement incorporating revisions approved, or
approved and made, in accordance with clause 29.
Note—
The Regulations or the Rules may also contain provisions of an application,
savings or transitional nature.
2—Schedule subject to jurisdictional transitional
arrangements in jurisdictional legislation
(1) This Schedule, and any Regulations or Rules of a savings and
transitional nature, apply in this jurisdiction except to the extent provided by
or under an Act of this jurisdiction (including an Act that applies this Law and
the Regulations as a law of this jurisdiction).
(2) In this clause—
Regulations or Rules of a savings and transitional nature
means Regulations or Rules that deal with matters of a savings or transitional
nature relating to the transition from the application of provisions of the old
access law and Gas Code to the application of provisions of this Law and the
Rules.
Part 2—General savings
provision
3—Saving of operation of old access law and Gas
Code
(1) Subject to this Schedule, the Regulations and the Rules, the repeal of
the old access law or Gas Code does not—
(a) revive anything not in force or existing at the time the repeal takes
effect; or
(b) affect the previous operation of the old access law or Gas Code or
anything suffered, done or begun under or in accordance with the old access law
or Gas Code; or
(c) affect a right, privilege or liability acquired, accrued or incurred
under the old access law or Gas Code; or
(d) affect a penalty incurred in relation to—
(i) an offence arising under the old access law; or
(ii) a penalty incurred in relation to a breach of a provision of the old
access law or Gas Code; or
(e) affect an investigation, proceeding or remedy in relation to such a
right, privilege, liability or penalty.
(2) Subject to this Schedule, the Regulations and the Rules, any such
penalty may be imposed and enforced, and any such investigation, proceeding or
remedy may be begun, continued or enforced, as if the old access law or Gas Code
had not been repealed.
Part 3—Classification and coverage of
pipelines
4—Pending applications for the classification of
pipelines lapse
On the commencement day, every application under section 10 of the old
access law in respect of which a decision has not been made under section 10 or
11 of that law immediately before that day, lapses.
5—Old scheme coverage
determinations
On the commencement day, an old scheme coverage determination is deemed to
be a coverage determination.
6—Old scheme covered transmission
pipelines
On the commencement day, an old scheme covered pipeline that is a
transmission pipeline (within the meaning of section 2 of the old access law) is
deemed to be a covered pipeline that is a transmission pipeline.
7—Old scheme covered distribution
pipelines
On the commencement day, an old scheme covered pipeline that is a
distribution pipeline (within the meaning of section 2 of the old access law) is
deemed to be a covered pipeline that is a distribution pipeline.
8—Pending coverage applications under old scheme
(before NCC recommendation)
(1) This clause applies if—
(a) there is an old scheme coverage application; and
(b) the NCC has not made a recommendation in respect of that application
under section 1.9 of the Gas Code before the commencement day.
(2) On and after the commencement day, the NCC must, despite the repeal of
the Gas Code, continue to take action in relation to the application as required
under the Gas Code (including making a recommendation under section 1.7 of the
Gas Code and submitting it to the relevant old scheme relevant Minister under
that section) as if the old access law and Gas Code continued to
apply.
9—Pending relevant Minister decisions in relation
to coverage under old scheme
(1) This clause applies if—
(a) an old scheme relevant Minister has received a recommendation of the
NCC under section 1.7 of the Gas Code before the commencement day but the old
scheme relevant Minister has not made a determination under section 1.13 of the
Gas Code in relation to that recommendation before that day; or
(b) an old scheme relevant Minister receives a recommendation of the NCC
as provided for under clause 8 on or after the commencement day.
(2) On and after the commencement day, the old scheme relevant Minister
must, despite the repeal of the old access law and Gas Code, make a
determination under section 1.13 of the Gas Code in relation to that
recommendation as if the old access law and Gas Code continued to
apply.
(3) A determination made in accordance with subclause (2) is deemed
to be, on the relevant transition date—
(a) if the determination is that the pipeline is covered—a coverage
determination;
(b) if the determination is that the pipeline is not covered—a
decision not to make a coverage determination under section 99.
(4) In this clause—
relevant transition date means, if an application is not made
under section 38 of the old access law for a review of the determination within
the time specified by that section—the day after the last day an
application could have been made under that section.
10—Pending relevant Minister decisions in relation
to coverage that are reviewed under old scheme
(1) This clause applies if—
(a) an old scheme relevant Minister makes a determination under
section 1.13 of the Gas Code in accordance with clause 9;
and
(b) an application is made under section 38 of the old access law for a
review of the determination of the old scheme relevant Minister.
(2) If on the review the relevant appeals body refuses to review the
determination in accordance with section 38(11) of the old access law, the
determination of the old scheme relevant Minister is deemed to be, on the day
the determination of the relevant appeals body takes effect—
(a) if the determination is that the pipeline is covered—a coverage
determination;
(b) if the determination is that the pipeline is not covered—a
decision not to make a coverage determination under section 99.
(3) If on the review the relevant appeals body makes a determination under
section 38 of the old access law affirming or varying the determination of the
old scheme relevant Minister, that determination (as affirmed or varied) is
deemed to be, on the day the order of the relevant appeals body affirming or
varying that determination takes effect—
(a) if the effect of that determination is that the pipeline is
covered—a coverage determination;
(b) if the effect of that determination is that the pipeline is not
covered—a decision not to make a coverage determination under
section 99.
(4) If on the review the relevant appeals body makes a determination under
section 38 of the old access law that sets aside the determination of the old
scheme relevant Minister and remits the matter to the old scheme relevant
Minister for the Minister to make a determination again in respect of the
matter, the Minister must make a determination under clause 9.
(5) If on the review the relevant appeals body makes a determination under
section 38 of the old access law that sets aside the determination of the old
scheme relevant Minister and that is to operate in place of the determination of
the old scheme relevant Minister, the determination of the relevant appeals body
is deemed to be, on the day that determination takes effect—
(a) if that determination is that the pipeline is covered—a coverage
determination;
(b) if that determination is that the pipeline is not covered—a
decision not to make a coverage determination under section 99.
11—Pending old scheme coverage determinations where
no applications for review under old scheme
(1) This clause applies if—
(a) there is a pending old scheme coverage determination; and
(b) an application has not been made under section 38 of the old access
law for a review of the determination within the time provided for under that
section (whether or not that time expires on or after the commencement
day).
(2) The pending old scheme coverage determination is deemed to be a
coverage determination on the day after the last day an application could have
been made under section 38 of the old access law.
12—Pending old scheme coverage determinations where
applications for review under old scheme on foot
(1) This clause applies if—
(a) there is a pending old scheme coverage determination; and
(b) an application has been made under section 38 of the old access law
for a review of the determination before the commencement day.
(2) If on the review the relevant appeals body refuses to review the
determination in accordance with section 38(11) of the old access law, the
pending old scheme coverage determination is deemed to be a coverage
determination on the day on which the determination of the relevant appeals body
takes effect.
(3) If on the review the relevant appeals body makes a determination
affirming or varying the pending old scheme coverage determination, that
determination (as affirmed or varied) is deemed to be a coverage determination
on the day on which the order of the relevant appeals body affirming or varying
that determination takes effect.
(4) If on the review the relevant appeals body makes a determination that
sets aside the pending old scheme coverage determination and remits the matter
to the old scheme relevant Minister for the Minister to make a determination
again in respect of the matter, the old scheme relevant Minister must make a
determination under section 1.13 of the Gas Code as if the Gas Code continued to
apply.
(5) If on the review the relevant appeals body makes a determination that
sets aside the pending old scheme coverage determination and that is to operate
in place of the pending old scheme coverage determination, the determination of
the relevant appeals body is deemed to be, on the day that determination takes
effect—
(a) if that determination is that the pipeline is covered—a coverage
determination;
(b) if that determination is that the pipeline is not covered—a
decision not to make a coverage determination under section 99.
13—Pending old scheme no-coverage determinations
where no applications for review under old scheme
(1) This clause applies if—
(a) there is a pending old scheme no-coverage determination; and
(b) an application has not been made under section 38 of the old access
law for a review of the determination within the time provided for under that
section (whether or not that time expires on or after the commencement
day).
(2) The pending old scheme no-coverage determination is deemed to be a
decision not to make a coverage determination under section 93 on the day
after the last day an application could have been made under section 38 of the
old access law.
14—Pending old scheme no-coverage determinations
where applications for review under old scheme on foot
(1) This clause applies if—
(a) there is a pending old scheme no-coverage determination; and
(b) an application has been made under section 38 of the old access law
for a review of the determination before the commencement day.
(2) If on the review the relevant appeals body refuses to review the
determination in accordance with section 38(11) of the old access law, the
pending old scheme no-coverage determination is deemed to be a decision not to
make a coverage determination under section 99 on the day on which the
determination of the relevant appeals body takes effect.
(3) If on the review the relevant appeals body makes a determination
affirming or varying the pending old scheme no-coverage determination, that
determination (as affirmed or varied) is deemed to be a decision not to make a
coverage determination under section 99 on the day on which the order of
the relevant appeals body affirming or varying that determination takes
effect.
(4) If on the review the relevant appeals body makes a determination that
sets aside the pending old scheme no-coverage determination and remits the
matter to the old scheme relevant Minister for the Minister to make a
determination again in respect of the matter, the old scheme relevant Minister
must make a determination under section 1.13 of the Gas Code as if the Gas Code
continued to apply.
(5) If on the review the relevant appeals body makes a determination that
sets aside the pending old scheme coverage determination and that is to operate
in place of the pending old scheme coverage determination, the determination of
the relevant appeals body is deemed to be, on the day that determination takes
effect—
(a) if that determination is that the pipeline is covered—a coverage
determination;
(b) if that determination is that the pipeline is not covered—a
decision not to make a coverage determination under section 99.
15—Pending coverage revocation applications under
old scheme (before NCC recommendation)
(1) This clause applies if—
(a) there is an old scheme coverage revocation application; and
(b) the NCC has not made a recommendation in respect of that application
under section 1.28 of the Gas Code before the commencement day.
(2) On and after the commencement day, the NCC must, despite the repeal of
the Gas Code, continue to take action in relation to the application as required
under the Gas Code (including making a recommendation under section 1.29 of the
Gas Code and submitting it to the relevant old scheme relevant Minister under
that section) as if the old access law and Gas Code continued to
apply.
16—Pending relevant Minister decisions in relation
to coverage revocation under old scheme
(1) This clause applies if—
(a) an old scheme relevant Minister has received a recommendation of the
NCC under section 1.29 of the Gas Code before the commencement day but the old
scheme relevant Minister has not made a determination under section 1.34 of the
Gas Code in relation to that recommendation before that day; or
(b) an old scheme relevant Minister receives a recommendation of the NCC
as provided for under clause 15 after the commencement day.
(2) On and after the commencement day, the old scheme relevant Minister
must, despite the repeal of the old access law or Gas Code, make a determination
under section 1.34 of the Gas Code in relation to that recommendation as if the
old access law and Gas Code continued to apply.
(3) A determination made in accordance with subclause (2) is deemed
to be, on the relevant transition date—
(a) if the determination is that coverage of the covered pipeline is
revoked—a coverage revocation determination;
(b) if the determination is that coverage of the covered pipeline is not
revoked—a decision not to make a coverage revocation determination under
section 106.
(4) In this clause—
relevant transition date means, if an application is not made
under section 38 of the old access law for a review of the determination within
the time specified by that section—the day after the last day an
application could have been made under that section.
17—Pending relevant Minister decisions in relation
to coverage revocation that are reviewed under old scheme
(1) This clause applies if—
(a) an old scheme relevant Minister makes a determination under
section 1.34 of the Gas Code in accordance with clause 16;
and
(b) an application is made under section 38 of the old access law for a
review of the determination of the old scheme relevant Minister.
(2) If on the review the relevant appeals body refuses to review the
determination in accordance with section 38(11) of the old access law, the
determination of the old scheme relevant Minister is deemed to be, on the day
the determination of the relevant appeals body takes effect—
(a) if the determination is that coverage of the covered pipeline is
revoked—a coverage revocation determination;
(b) if the determination is that coverage of the covered pipeline is not
revoked—a decision not to make a coverage revocation determination under
section 106.
(3) If on the review the relevant appeals body makes a determination under
section 38 of the old access law affirming or varying the determination of the
old scheme relevant Minister, that determination (as affirmed or varied) is
deemed to be, on the day the order of the relevant appeals body affirming or
varying that determination takes effect—
(a) if the effect of that determination is that coverage of the covered
pipeline is revoked—a coverage revocation determination;
(b) if the effect of that determination is that coverage of the covered
pipeline is not revoked—a decision not to make a coverage revocation
determination under section 106.
(4) If on the review the relevant appeals body makes a determination under
section 38 of the old access law that sets aside the determination of the old
scheme relevant Minister and remits the matter to the old scheme relevant
Minister for the Minister to make a determination again in respect of the
matter, the Minister must make a determination under clause 16.
(5) If on the review the relevant appeals body makes a determination under
section 38 of the old access law that sets aside the determination of the old
scheme relevant Minister and that is to operate in place of the determination of
the old scheme relevant Minister, the determination of the relevant appeals body
is deemed to be, on the day that determination takes effect—
(a) if that determination is that coverage of the covered pipeline is
revoked—a coverage revocation determination;
(b) if that determination is that coverage of the covered pipeline is not
revoked—a decision not to make a coverage revocation determination under
section 106.
18—Pending old scheme coverage revocation
determinations where no applications for review under old
scheme
(1) This clause applies if—
(a) there is a pending old scheme coverage revocation determination;
and
(b) an application has not been made under section 38 of the old access
law for a review of the determination within the time provided for under that
section (whether or not that time expires on or after the commencement
day).
(2) The pending old scheme coverage revocation determination is deemed to
be coverage revocation determination on the day after the last day an
application could have been made under section 38 of the old access
law.
19—Pending old scheme coverage revocation
determinations where applications for review under old scheme on
foot
(1) This clause applies if—
(a) there is a pending old scheme coverage revocation determination;
and
(b) an application has been made under section 38 of the old access law
for a review of the determination before the commencement day.
(2) If on the review the relevant appeals body refuses to review the
determination in accordance with section 38(11) of the old access law, the
pending old scheme coverage revocation determination is deemed to be a coverage
revocation determination on the day on which the determination of the relevant
appeals body takes effect.
(3) If on the review the relevant appeals body makes a determination
affirming or varying the pending old scheme coverage revocation determination,
that determination (as affirmed or varied) is deemed to be a coverage revocation
determination on the day on which the order of the relevant appeals body
affirming or varying that determination takes effect.
(4) If on the review the relevant appeals body makes a determination that
sets aside the pending old scheme coverage revocation determination and remits
the matter to the old scheme relevant Minister for the Minister to make a
determination again in respect of the matter, the old scheme relevant Minister
must make a determination under section 1.34 of the Gas Code as if the Gas Code
continued to apply.
(5) If on the review the relevant appeals body makes a determination that
sets aside the pending old scheme revocation coverage determination and that is
to operate in place of the pending old scheme revocation coverage determination,
the determination of the relevant appeals body is deemed to be, on the day that
determination takes effect—
(a) if that determination is that coverage of the covered pipeline is
revoked—a coverage revocation determination;
(b) if that determination is that coverage of the covered pipeline is not
revoked—a decision not to make a coverage revocation determination under
section 106.
20—Pending old scheme coverage non-revocation
determinations where no applications for review under old
scheme
(1) This clause applies if—
(a) there is a pending old scheme coverage non-revocation determination;
and
(b) an application has not been made under section 38 of the old access
law for a review of the determination within the time provided for under that
section (whether or not that time expires on or after the commencement
day).
(2) The pending old scheme coverage non-revocation determination is deemed
to be a decision not to make a coverage revocation determination under
section 106 on the day after the last day an application could have been
made under section 38 of the old access law.
21—Pending old scheme coverage non-revocation
determinations where applications for review under old scheme on
foot
(1) This clause applies if—
(a) there is a pending old scheme coverage non-revocation determination;
and
(b) an application has been made under section 38 of the old access law
for a review of the determination before the commencement day.
(2) If on the review the relevant appeals body refuses to review the
determination in accordance with section 38(11) of the old access law, the
pending old scheme coverage non-revocation determination is deemed to be a
decision not to make a coverage revocation determination under section 106
on the day on which the determination of the relevant appeals body takes
effect.
(3) If on the review the relevant appeals body makes a determination
affirming or varying the pending old scheme coverage non-revocation
determination, that determination (as affirmed or varied) is deemed to be a
decision not to make a coverage revocation determination under section 106
on the day on which the order of the relevant appeals body affirming or varying
that determination takes effect.
(4) If on the review the relevant appeals body makes a determination that
sets aside the pending old scheme coverage non-revocation determination and
remits the matter to the old scheme relevant Minister for the Minister to make a
determination again in respect of the matter, the old scheme relevant Minister
must make a determination under section 1.34 of the Gas Code as if the Gas Code
continued to apply.
(5) If on the review the relevant appeals body makes a determination that
sets aside the pending old scheme coverage non-revocation determination and that
is to operate in place of the pending old scheme coverage non-revocation
determination, the determination of the relevant appeals body is deemed to be,
on the day that determination takes effect—
(a) if that determination is that coverage of the covered pipeline is
revoked—a coverage revocation determination;
(b) if that determination is that coverage of the covered pipeline is not
revoked—a decision not to make a coverage revocation determination under
section 106.
22—Binding no-coverage
determinations
On the commencement day, a binding no-coverage determination in effect
immediately before that day is deemed to be a 15-year no-coverage
determination.
23—Pending applications for binding no-coverage
determinations (before NCC recommendation)
(1) This clause applies if—
(a) an application under section 13D of the old access law for a binding
no-coverage determination has been made before the commencement day;
and
(b) NCC has not made a recommendation under section 13J of the old access
law in relation to that application before that day.
(2) On and after the commencement day, the NCC must, despite the repeal of
the old access law, continue to take action in relation to the application as
required under the old access law (including making a recommendation under
section 13J of the old access law and submitting it to the relevant old scheme
relevant Minister under that section) as if the old access law continued to
apply.
24—Pending relevant Minister decisions for binding
no-coverage determinations under old scheme
(1) This clause applies if—
(a) an old scheme relevant Minister has received a recommendation of the
NCC under section 13J of the old access law before the commencement day but the
old scheme relevant Minister has not made a determination under section 13J of
the old access law in relation to that recommendation before that day;
or
(b) an old scheme relevant Minister receives a recommendation of the NCC
as provided for under clause 23 on or after the commencement day.
(2) On and after the commencement day, the old scheme relevant Minister
must, despite the repeal of the old access law, make a decision under section
13K of the old access law in relation to that recommendation as if the old
access law continued to apply.
(3) A decision made in accordance with subclause (2) is deemed to be,
on the relevant transition date—
(a) if the decision is a binding no-coverage determination—a 15-year
no-coverage determination;
(b) if the decision is not to make binding no-coverage
determination—a decision not to make a 15-year no-coverage determination
under section 162.
(4) In this clause—
relevant transition date means, if an application is not made
under section 38 of the old access law for a review of the decision within the
time specified by that section—the day after the last day an application
could have been made under that section.
25—Pending relevant Minister decisions in relation
to binding no-coverage determinations that are reviewed under old
scheme
(1) This clause applies if—
(a) an old scheme relevant Minister makes a decision under section 13J of
the old access law in accordance with clause 24; and
(b) an application is made under section 38 of the old access law for a
review of the decision of the old scheme relevant Minister.
(2) If on the review the relevant appeals body refuses to review the
determination in accordance with section 38(11) of the old access law, the
decision of the old scheme relevant Minister is deemed to be, on the day the
decision of the relevant appeals body takes effect—
(a) if the decision is a binding no-coverage determination—a 15-year
no-coverage determination;
(b) if the decision is not to make a binding no-coverage
determination—a decision not to make a 15-year no-coverage determination
under section 162.
(3) If on the review the relevant appeals body makes a determination under
section 38 of the old access law affirming or varying the decision of the old
scheme relevant Minister, that decision (as affirmed or varied) is deemed to be,
on the day the order of the relevant appeals body affirming or varying that
decision takes effect—
(a) if the decision is a binding no-coverage determination—a 15-year
no-coverage determination;
(b) if the decision is not to make a binding no-coverage
determination—a decision not to make a 15-year no-coverage determination
under section 162.
(4) If on the review the relevant appeals body makes a determination under
section 38 of the old access law that sets aside the decision of the old scheme
relevant Minister and remits the matter to the old scheme relevant Minister for
the Minister to make a decision again in respect of the matter, the Minister
must make a decision under clause 24.
(5) If on the review the relevant appeals body makes a determination under
section 38 of the old access law that sets aside the decision of the old scheme
relevant Minister and that is to operate in place of the decision of the old
scheme relevant Minister, the determination of the relevant appeals body is
deemed to be, on the day that determination takes effect—
(a) if the determination is a binding no-coverage determination—a
15-year no-coverage determination;
(b) if the determination is not to make binding no-coverage
determination—a decision not to make a 15-year no-coverage determination
under section 162.
Part 4—Access arrangements
26—Current access arrangements (other than old
scheme limited access arrangements)
Subject to this Part, on the commencement day—
(a) a current access arrangement approved in—
(i) a final decision under section 2.16 or 2.38 of the Gas Code;
or
(ii) a further final decision under section 2.19 or 2.41 of the Gas
Code,
is deemed to be a full access arrangement approved by the AER under a full
access arrangement decision;
(b) a current access arrangement drafted and approved by a relevant
Regulator under section 2.20 or 2.42 of the Gas Code is deemed to be a full
access arrangement made by the AER under a full access arrangement
decision.
27—Old scheme limited access
arrangements
On the commencement day, an old scheme limited access arrangement is deemed
to be a limited access arrangement approved by the AER under the
Rules.
28—Access arrangements submitted but not approved
or rejected before repeal of old scheme
(1) This clause applies if—
(a) a proposed access arrangement has been submitted under section 2.2 of
the Gas Code to a relevant Regulator before the commencement day for approval;
and
(b) the relevant Regulator has not, that day—
(i) approved that access arrangement in a final decision under section
2.16, or a further final decision under section 2.19 of the Gas Code;
or
(ii) drafted and approved its own access arrangement under section 2.20 of
the Gas Code.
(2) On and after the commencement day, the relevant Regulator must,
despite the repeal of the Gas Code, deal with the proposed access arrangement as
if the Gas Code continued to apply.
(3) An access arrangement approved, or drafted and approved, in accordance
with subclause (2) is deemed to be, on the day the relevant decision takes
effect—
(a) in the case of an access arrangement approved in a final decision
under section 2.16, or a further final decision under section 2.19, of the Gas
Code—a full access arrangement approved by the AER under a full access
arrangement decision;
(b) in the case of an access arrangement drafted and approved by the
relevant Regulator under section 2.20 of the Gas Code—a full access
arrangement made by the AER under a full access arrangement decision.
(4) Despite anything to the contrary in this Law and the repeal of the old
access law, section 39 of the old access law continues to apply to a full access
arrangement decision referred to in this section as if a reference in that
section to a decision of the relevant Regulator under the Gas Code were a
reference to a full access arrangement decision of the AER.
29—Access arrangement revisions submitted but not
approved or rejected before repeal of old scheme
(1) This clause applies if—
(a) proposed revisions to a current access arrangement have been submitted
under section 2.28 of the Gas Code to a relevant Regulator before the
commencement day for approval; and
(b) the relevant Regulator has not, before that day—
(i) approved those revisions in a final decision under section 2.38,
or a further final decision under section 2.41, of the Gas Code; or
(ii) drafted and approved its own revisions under section 2.42 of the
Gas Code.
(2) On and after the commencement day, the relevant Regulator must,
despite the repeal of the Gas Code, deal with the proposed revisions as if the
Gas Code continued to apply.
(3) An access arrangement in respect of which revisions are approved, or
drafted and approved, in accordance with subclause (2) is deemed to be, on
the day the relevant decision takes effect—
(a) in the case of an access arrangement in respect of which revisions are
approved in a final decision under section 2.38, or a further final decision
under section 2.41, of the Gas Code—a full access arrangement as revised
by the AER under a full access arrangement decision;
(b) in the case of an access arrangement in respect of which revisions are
drafted and approved by the relevant Regulator under section 2.42 of the Gas
Code—a full access arrangement (as revised) made by the AER under a full
access arrangement decision.
(4) Despite anything to the contrary in this Law and the repeal of the old
access law, section 39 of the old access law continues to apply to a full access
arrangement decision referred to in this section as if a reference in that
section to a decision of the relevant Regulator under the Gas Code were a
reference to a full access arrangement decision of the AER.
30—Certain provisions of the Gas Code to continue
to apply to current and proposed access arrangements
(1) Despite the repeal of the Gas Code and subject to this clause and any
current access arrangement modification Rules, sections 3, 8 and 10.8 of the Gas
Code continue to apply to a transitioned access arrangement until revisions to
that access arrangement first approved or made in accordance with this Law and
the Rules after the commencement day take effect.
(2) To avoid doubt, after the commencement day, a covered pipeline service
provider must, despite anything to the contrary in a transitioned access
arrangement, submit an access arrangement revision proposal in relation to that
access arrangement in accordance with section 132 and the Rules.
(3) Sections 3, 8 and 10.8 of the Gas Code, as applied under this clause,
do not have effect to the extent that they provide for or deal with the
procedure for the approval of revisions to access arrangements.
(4) For the purposes of this clause—
(a) the AER is deemed to have the functions and powers a relevant
Regulator has under sections 3, 8 and 10.8 of the Gas Code as applied under this
clause; and
(b) every reference to a relevant Regulator in those sections as applied
under this clause is deemed to be a reference to the AER.
(5) In this clause—
access arrangement revision proposal has the same meaning as
in the Rules;
current access arrangement modification Rules means Rules
made for or with respect to item 81 of Schedule 1 to this Law that are in
force.
31—Certain decisions relating to certain access
arrangements are reviewable regulatory decisions for purposes of Chapter 8 Part
5 of the Law
(1) Despite anything to the contrary in this Law, the definition of
reviewable regulatory decision in section 244 is deemed,
during the relevant transition period, to include decisions of the
AER—
(a) that disallow a variation proposed by a service provider of a
Reference Tariff contained in a transitioned access arrangement; or
(b) to make the AER's own variation of a Reference Tariff in respect of a
transitioned access arrangement—
(i) on disallowing a variation proposed by a service provider;
or
(ii) because a service provider fails to submit such a variation as
required.
(2) In this clause—
new scheme revisions commencement date means the date
revisions approved or made to a transitioned access arrangement under this Law
and the Rules take effect following the first review of that access arrangement
under this Law and the Rules after the commencement day;
Reference Tariff has the same meaning as in the Gas Code
immediately before its repeal;
relevant transition period means the period—
(a) commencing on the commencement day; and
(b) ending on the day after the day that is 15 business days after the
first new scheme revisions commencement date.
Note—
See also clause 30.
32—Limited access arrangements submitted but not
approved before repeal of old scheme
(1) This clause applies if a proposed limited access arrangement or a
proposed amendment to a limited access arrangement—
(a) has been submitted under section 13U(1) of the old access law to the
ACCC before the commencement day for approval; and
(b) the ACCC has not approved that limited access arrangement or that
amendment before that day.
(2) On and after the commencement day, the ACCC must, despite the repeal
of the old access law, deal with the proposed access arrangement under
section 13U as if the old access law continued to apply.
(3) A proposed limited access arrangement, or a proposed amendment to a
limited access arrangement, approved by the ACCC in accordance with
subclause (2) is deemed to be, on the day the decision takes
effect—
(a) in the case of a decision approving the proposed limited access
arrangement—a limited access arrangement approved by the AER under a
limited access arrangement decision;
(b) in the case of a decision approving a proposed amendment to a limited
access arrangement—a variation to a limited access arrangement approved by
the AER under the Rules.
33—Extensions and expansions
policies
On the commencement day, an Extensions/Expansions Policy (as defined in
section 3.16 of the Gas Code), and in effect immediately before that day, is
deemed to be extension and expansion requirements.
34—Queuing policies
On the commencement day, a Queuing Policy (as defined in section 3.12 of
the Gas Code), and in effect immediately before that day, is deemed to be
queuing requirements.
Part 5—Price regulation
exemptions
35—Old scheme price regulation
exemptions
On the commencement day, an old scheme price regulation exemption in effect
immediately before that day is deemed to be a price regulation
exemption.
36—Pending applications for price regulation
exemptions
(1) This clause applies if—
(a) an application under section 13N of the old access law for an old
scheme price regulation exemption has been made before the commencement day;
and
(b) NCC has not made a recommendation under section 13R of the old access
law in relation to that application before that day.
(2) On and after the commencement day, the NCC must, despite the repeal of
the old access law, continue to take action in relation to the application as
required under the old access law (including making a recommendation under
section 13R of the old access law and submitting it to the Commonwealth
Minister under that section) as if the old access law continued to
apply.
37—Pending Commonwealth Minister decisions for
price regulation exemptions
(1) This clause applies if—
(a) the Commonwealth Minister has received a recommendation of the NCC
under section 13R of the old access law before the commencement day but the
Commonwealth Minister has not made a decision under section 13S of the old
access law in relation to that recommendation before that day; or
(b) the Commonwealth Minister receives a recommendation of the NCC as
provided for under clause 36 after the commencement day.
(2) On and after the commencement day, the Commonwealth Minister must,
despite the repeal of the old access law, make a decision under section 13S
of the old access law in relation to that recommendation as if the old access
law continued to apply.
(3) If the Commonwealth Minister makes an old scheme price regulation
exemption under section 13S of the old access law in accordance with
subclause (2), that exemption is deemed to be a price regulation exemption
on the day it is made.
Part 6—Structural and operational separation (ring
fencing)
38—Definitions
In this Part—
old scheme ring fencing requirement, in relation to a service
provider, means—
(a) section 4.1(b) to (d), (h) or (i) of the Gas Code as those sections
apply to the service provider subject to—
(i) any notice given to the service provider under section 4.15(a) of
the Gas Code waiving that service provider's compliance with an obligation under
section 4.1(b) of the Gas Code that is in effect immediately before the
commencement day; and
(ii) any notice given to the service provider under section 4.15(b)
of the Gas Code waiving that service provider's compliance with an obligation
under section 4.1(h) and (i) of the Gas Code that is in effect immediately
before the commencement day; or
(b) any obligation applying to the service provider under a notice given
to that service provider under section 4.3 of the Gas Code that is in effect
immediately before the commencement day;
relevant transition period means the period beginning on the
commencement day and ending on the day that is 6 months after the commencement
day.
39—Compliance with certain old scheme ring fencing
requirements sufficient compliance for 6 month period
(1) Despite anything to the contrary in this Law, a service provider who
during the relevant transition period complies with an old scheme ring fencing
requirement must be taken to comply with Division 2 and Division 3 of Chapter 4
Part 2 of the Law during that period.
(2) In addition to subclause (1) but subject to subclauses (3)
and (4), a service provider must continue to comply with an old scheme ring
fencing requirement as if the Gas Code continued to apply.
(3) A service provider may depart from complying with an old scheme ring
fencing requirement before the end of the relevant transition period solely for
the purpose of preparing to comply with Division 2 or Division 3 of Chapter 4
Part 2 of this Law at the end of that period.
(4) If a service provider does depart from complying with an old scheme
ring fencing requirement in accordance with subclause (3) the service
provider must in respect of that departure comply with Division 2 and Division 3
of Chapter 4 Part 2 of this Law (as the case requires).
40—Existing waivers of ring fencing
obligations
(1) After the relevant transition period, a notice given to a service
provider under section 4.15(a) of the Gas Code waiving that service provider's
compliance with an obligation under section 4.1(b) of the Gas Code, and in
effect immediately before the commencement day, is deemed to be an exemption of
the AER under section 146 from the requirement to comply with
section 139 given to that service provider.
(2) After the relevant transition period, a notice given to a service
provider under section 4.15(b) of the Gas Code waiving that service provider's
compliance with an obligation under section 4.1(h) and (i) of the Gas Code, and
in effect immediately before the commencement day, is deemed to be an exemption
of the AER under section 146 from the requirement to comply with
section 140 given to that service provider.
(3) Subclauses (1) and (2) do not apply to the extent to which a
notice referred to in those subclauses is inconsistent with this Law or the
Rules.
41—Additional ring fencing
obligations
(1) After the relevant transition period, a notice given to a service
provider under section 4.3 of the Gas Code and in effect immediately before the
commencement day is deemed to be an additional ring fencing requirement (as
defined in section 137).
(2) Subclause (1) does not apply to the extent to which a notice
referred to in that subclause is inconsistent with this Law or the
Rules.
Part 7—Access disputes
42—Non-finalised access
disputes
(1) A non-finalised access dispute must continue to be dealt with in
accordance with the old access law and Gas Code despite the repeal of the old
access law and Gas Code.
(2) However, despite anything to the contrary in the old access law and
Gas Code, a non-finalised access dispute is to be dealt with by the dispute
resolution body and for that purpose—
(a) every reference to an arbitrator in Part 4 of the old access law and
in the Gas Code is to be read as a reference to the dispute resolution body;
and
(b) anything done in relation to a non-finalised access dispute by an
arbitrator before the commencement day is deemed to have been done by the
dispute resolution body; and
(c) the dispute resolution body may, in relation to a particular
non-finalised access dispute, have regard to any record of the arbitrator
conducting the arbitration of that non-finalised access dispute; and
(d) the arbitrator must stop conducting the arbitration and give the
dispute resolution body all documents the arbitrator has created for the
purposes of, or received in, the arbitration.
(3) In this clause—
non-finalised access dispute means an access dispute within
the meaning of section 14 of the old access law that has arisen and not been
finally determined under Part 4 of the old access law and Gas Code before the
commencement day.
Part 8—Investigations and
proceedings
43—Investigations into breaches and possible
breaches of the old access law or Gas Code
(1) On and after the commencement day, a relevant Regulator investigation
may be conducted and completed by the AER in accordance with this Law, the
Regulations and the Rules as if that investigation were commenced by the AER
under this Law, the Regulations and the Rules.
(2) In this clause—
relevant Regulator investigation means an investigation into
a breach or possible breach of the old access law or Gas Code
that—
(a) has been commenced by a relevant Regulator before the commencement
day; and
(b) has not been completed by the relevant Regulator before the
commencement day.
44—AER may conduct investigations into breaches or
possible breaches of Gas Pipelines Access Law not investigated by a relevant
Regulator
(1) Despite anything to the contrary in this Schedule, the AER may, on and
after the commencement day, conduct an investigation into a breach or possible
breach of the old access law or the Gas Code.
(2) The AER may conduct an investigation referred to in subclause (1)
as if it were an investigation into a breach of this Law, and for that purpose,
may exercise all of the powers it has under this Law relating to investigations
into breaches or possible breaches under this Law.
45—AER may bring proceedings in relation to
breaches of old access law and Gas Code
(1) In this clause—
AER breach investigation means an investigation conducted and
completed by the AER in accordance with clause 43 or 44.
(2) On and after the commencement day, the AER may bring proceedings in
the Court in respect of an AER breach investigation.
(3) Despite anything to the contrary in clause 2 or the repeal of the
old access law and Gas Code, Part 5 of the old access law applies to a
proceeding under this clause as if—
(a) a reference in that Part to a relevant Regulator or the ACCC were a
reference to the AER; and
(b) regulation 5 of, and Schedule 2 to, the Gas Pipelines Access (South
Australia) Regulations 1999 were not revoked.
Part 9—Associate contracts
46—Pending associate contract approvals that are
approved after commencement day
(1) This clause applies if on the commencement day—
(a) there is a proposed associate contract (within the meaning of
section 10.8 of the Gas Code) with a relevant Regulator for approval;
and
(b) the relevant Regulator has not made a decision approving or not
approving the proposed associate contract.
(2) The relevant Regulator must, despite the repeal of the old access law
and the Gas Code, take action in relation to that proposed associate contract
under section 7.1 to 7.6 of the Gas Code as if the old access law and Gas Code
continued to apply.
(3) If the relevant Regulator decides to approve the proposed associate
contract under section 7.1 to 7.6 of the Gas Code, that associate contract is
deemed to be an approved associate contract on, as the case
requires—
(a) the day the relevant Regulator approves the associate contract in
accordance with those sections; or
(b) the day the relevant Regulator is deemed to have approved the
associate contract by operation of those sections.
47—Pending associate contracts approvals that are
not approved
(1) This clause applies if the relevant Regulator decides not to approve a
proposed associate contract under clause 46.
(2) If an application is not made under section 38 of the old access law
for a review of the decision within the time specified by that section, the
proposed associate contract is deemed not to be an approved associate contract
on the day after the last day an application could have been made under that
section.
(3) If an application is made under section 38 of the old access law for a
review of the decision but the relevant appeals body refuses to review the
decision in accordance with section 38(11) of the old access law, the proposed
associate contract is deemed not to be an approved associate contract on the day
on which the determination of the relevant appeals body takes effect.
(4) If—
(a) an application is made under section 38 of the old access law for a
review of the decision; and
(b) the relevant appeals body, by determination, affirms the
decision,
the proposed associate contract is deemed not to be an approved associate
contract on the day on which the determination of the relevant appeals body
affirming the decision takes effect.
(5) If—
(a) an application is made under section 38 of the old access law for a
review of the decision; and
(b) the relevant appeals body makes a determination that sets aside the
decision and remits the matter to the relevant Regulator for the Regulator to
make a decision again in respect of the matter,
the relevant Regulator must make a decision under clause 46.
(6) If—
(a) an application is made under section 38 of the old access law for a
review of the decision; and
(b) the relevant appeals body makes a determination that sets aside the
decision and approves the associate contract,
the proposed associate contract to which the determination relates is
deemed to be, on the day the determination takes effect, an approved associate
contract.
48—Approved associate
contracts
(1) On the commencement day, an associate contract (within the meaning of
section 10.8 of the Gas Code)—
(a) in effect immediately before that day; and
(b) that has been approved by a relevant Regulator under section 7 of
the Gas Code,
is deemed to be an approved associate contract.
(2) On the commencement day, an associate contract (within the meaning of
section 10.8 of the Gas Code)—
(a) in effect immediately before that day; and
(b) that has been deemed to have been approved by operation of
section 7 of the Gas Code,
is deemed to be an approved associate contract.
Part 10—Other
49—Pending and final tender approval requests
lapse
(1) On the commencement day, every Tender Approval Request (within meaning
of section 10.8 of the Gas Code), in respect of which a decision has not been
made under section 3.25 of the Gas Code immediately before that day,
lapses.
(2) On the commencement day, every Final Approval Request (within the
meaning of section 3.29 of the Gas Code), in respect of which a decision has not
been made under that section immediately before that day, lapses.
50—Decisions approving final approval
requests
(1) This section applies if before, or on, the commencement day a relevant
Regulator has made or makes a decision under section 3.32 of the Gas Code that
approves a Final Approval Request (within the meaning of section 10.8 of the Gas
Code).
(2) On the commencement day—
(a) the decision of the relevant Regulator is deemed to be a tender
approval decision that has become irrevocable by operation of the Rules;
and
(b) the pipeline to which the decision relates is deemed to be a covered
pipeline.
51—Rights under certain change of law provisions in
agreements or deeds not to be triggered
(1) The repeal of the old access law and the Gas Code, and the
commencement of this Law and the initial National Gas Rules, is not to be
regarded as a change of law (however defined) under any agreement or deed in
effect on the commencement day.
(2) Subclause (1) applies despite any provision in any agreement or
deed to the contrary.
52—References to relevant Regulator in access
arrangements
On the commencement day, unless the context otherwise requires, every
reference to a relevant Regulator in a current access arrangement deemed under
Part 4 of this Schedule to be a full access arrangement or a limited access
arrangement is deemed to be a reference to the AER.
53—Old scheme classifications and scheme
participant determinations
(1) On the commencement day, every old scheme classification and scheme
participant determination applying to an old scheme covered pipeline is deemed
to be an initial classification decision (within the meaning of
section 98(1)).
(2) In this clause—
old scheme classification and scheme participant
determination means—
(a) a classification and determination under section 10(5)(a) of the
old access law; or
(b) a determination under section 10(5)(b) of the old access law;
or
(c) a classification and determination under section 11(3) of the old
access law.