National Gas (NSW) Law No 31a of 2008

Editorial note—

The National Gas Law is applied and modified as a law of NSW by the NSW National Gas (New South Wales) Act 2008. This version is the Law as it currently applies in NSW.

Chapter 1 Preliminary

Part 1 Citation and interpretation

1 Citation

This law may be cited as the National Gas (NSW) Law.

2 Definitions

(1)  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 Competition and Consumer Act 2010 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;

adoptive jurisdiction means a participating jurisdiction for which AEMO is authorised to exercise its declared system functions or STTM functions;

AEMC means the Australian Energy Market Commission established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia;

AEMO amendments means—

(a)  the amendments to this Law made by the National Gas (South Australia) (National Gas Law—Australian Energy Market Operator) Amendment Act 2009; and

(b)  the amendments to the Rules made by the National Gas (South Australia) (National Gas Rules—Australian Energy Market Operator) Amendment Rules 2009; and

(c)  the Procedures first made under this Law after the enactment of the amendments referred to in paragraph (a);

AER means the Australian Energy Regulator established by section 44AE of the Competition and Consumer Act 2010 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 (other than making a rate of return instrument) that relates to the economic regulation of pipeline services provided by a service provider—

(a)  by means of; or

(b)  in connection with,

a scheme pipeline and includes a function or power performed or exercised by the AER under this Law or the Rules (other than making a rate of return instrument) that relates to—

(c)  the preparation of a service provider performance report;

(d)  a ring fencing decision;

(e)  an applicable access arrangement decision;

(f)  an access determination (if the AER is the dispute resolution body);

Note—

The application of a rate of return instrument under this Law is an AER economic regulatory function or power. See section 30Q(2).

AER gas price reporting functions means the functions of the AER performed under section 27(1)(fa);

AER ring fencing determination means a determination of the AER under section 143(1);

annual turnover has the same meaning as in section 2(1) of Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth;

applicable access arrangement means a limited access arrangement or full access arrangement that has taken effect after being approved or made by the AER under the Rules and includes an applicable access arrangement as varied—

(a)  under the Rules; or

(b)  by an access determination as provided by this Law or the Rules;

applicable access arrangement decision means—

(a)  a full access arrangement decision; or

(b)  a limited access arrangement decision;

application Act means an Act of a participating jurisdiction that applies, as a law of that jurisdiction, this Law or any part of this Law;

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;

Australian Energy Market Operator or AEMO means Australian Energy Market Operator Limited (ACN 072 010 327);

BB Procedures means Procedures directed at regulating the Natural Gas Services Bulletin Board;

Bulletin Board information means information that—

(a)  a person gives to AEMO or the AER to comply with Chapter 7 (or any Rules under that Chapter); or

(b)  a person gives to AEMO in its capacity as operator of the Natural Gas Services Bulletin Board in circumstances expressly permitted by the Rules;

capacity auction means an auction conducted by AEMO through which a person may buy transportation capacity;

capacity auction agreement means an agreement that relates to participation in a capacity auction and to which AEMO and persons participating in the capacity auction are parties;

capacity auction functions of AEMO are set out in section 91BRM(1);

capacity auction information means information that—

(a)  a person gives to AEMO, to comply with section 91FEE(1); or

(b)  a person gives, in circumstances expressly required or permitted by the Procedures or Rules—

(i)  to AEMO in its capacity as operator of a capacity auction in which the person participates; or

(ii)  to AEMO in its capacity as operator of a regulated gas market or a gas trading exchange if that information is to be used for the purpose of a capacity auction in which the person participates;

capacity auction participant means a person (other than AEMO) who is, or who was at the relevant time, a party to a capacity auction agreement;

Capacity Transfer and Auction Procedures means Procedures directed at the operation and administration of capacity auctions and transaction support arrangements;

changeover date means—

(a)  a date fixed by or under legislation of a participating jurisdiction for AEMO’s assumption of responsibility for the operation of a gas market in the relevant jurisdiction under this Law and the Rules; or

(b)  a date fixed by Ministerial Gazette notice as the changeover date;

Note—

The changeover date may vary from gas market to gas market, from provision to provision and from jurisdiction to jurisdiction. In addition, AEMO’s assumption of statutory functions in a particular participating jurisdiction may occur in stages on different changeover dates.

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 monetary liability means a liability for damages, compensation or any other monetary amount that can be recovered by way of civil proceedings but does not include a liability for a civil penalty or an infringement penalty under this Law or a liability for the costs of a proceeding;

civil penalty—see section 3A;

civil penalty provision has the meaning given by section 3;

classification decision under the Rules means a decision of the NCC under the Rules that classifies either of the following pipelines as a cross boundary transmission pipeline, cross boundary distribution pipeline, transmission pipeline or a distribution pipeline—

(a)  a pipeline in respect of which a tender approval decision becomes irrevocable by operation of the Rules;

(b)  a pipeline—

(i)  by means of which a service provider intends to provide pipeline services to which a full access arrangement voluntarily submitted to the AER for approval by that provider will apply, if approved; and

(ii)  in respect of which the NCC has not previously made an initial classification decision;

commission, in relation to a pipeline, has the meaning given by section 12;

Commonwealth Minister means the Minister of the Commonwealth administering the Australian Energy Market Act 2004 of the Commonwealth;

compression service facility means—

(a)  a designated compression service facility; or

(b)  any other facility or part of a facility (whether or not forming part of another facility or located on or connected to another facility) for compressing natural gas other than—

(i)  a facility operated as part of a gathering system operated as part of an upstream producing operation; or

(ii)  anything downstream of a point on a pipeline from which a person takes natural gas for consumption purposes;

compression service provider means a person who owns, controls or operates a compression service facility;

conduct provision has the meaning given by section 4;

constituent components, in relation to a designated regulatory decision, means the matters that constitute the elements or components of the designated regulatory decision and on which that designated regulatory decision is based and includes—

(a)  matters that go to the making of the designated regulatory decision; and

(b)  decisions made by the AER for the purposes of the designated regulatory decision;

coverage determination means a determination of a relevant Minister under Chapter 3 Part 1 Division 1;

coverage recommendation means a recommendation of the NCC under Chapter 3 Part 1 Division 1;

coverage revocation determination means a determination of a relevant Minister under Chapter 3 Part 1 Division 2;

coverage revocation recommendation means a recommendation of the NCC under Chapter 3 Part 1 Division 2;

covered pipeline means a pipeline—

(a)  to which a coverage determination applies; or

(b)  deemed to be a covered pipeline by operation of section 126 or 127;

covered pipeline service provider means a service provider that provides or intends to provide pipeline services by means of a covered pipeline;

cross boundary distribution pipeline means a distribution pipeline that is partly situated in the jurisdictional areas of 2 or more participating jurisdictions;

cross boundary transmission pipeline means a transmission pipeline that is partly situated in the jurisdictional areas of 2 or more participating jurisdictions;

declared distribution system of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

declared LNG storage provider of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

declared system functions—AEMO’s declared system functions are as set out in section 91BA(1);

declared system provisions means—

(a)  Chapter 2 Part 6 Division 2; and

(b)  the Rules regulating the declared wholesale gas market of an adoptive jurisdiction or otherwise relevant to Chapter 2 Part 6 Division 2;

declared transmission system of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

declared wholesale gas market means the wholesale market for natural gas defined in the application Act of an adoptive jurisdiction;

designated compression service facility means a facility or part of a facility for compressing natural gas prescribed by the Regulations as a designated compression service facility;

designated pipeline means a pipeline classified by the Regulations, or designated in the application Act of a participating jurisdiction, as a designated pipeline;

Note—

A light regulation determination cannot be made in respect of pipeline services provided by means of a designated pipeline: see sections 109 and 111.

designated regulatory decision means an applicable access arrangement decision (other than a full access arrangement decision that does not approve a full access arrangement), or a decision prescribed by the Regulations to be a designated regulatory decision;

developable capacity means the difference between the current capacity of a covered pipeline and the capacity of a covered pipeline which would be available if a new facility was constructed, but does not include any new capacity of a covered pipeline resulting from an extension to the geographic range of a covered pipeline;

dispute resolution body means the AER;

Dispute resolution panel means a person or panel of persons appointed under the Rules to hear and determine a rule dispute;

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.

distributor means, except where elsewhere defined in this Law, a service provider who owns, operates or controls a covered pipeline that is a distribution pipeline;

draft Rule determination means a determination of the AEMC under section 308;

ECA amendments means the amendments to this Law made by the Statutes Amendment (Energy Consumers Australia) Act 2014 of South Australia;

end user means a person who acquires natural gas for consumption purposes, and includes a retail customer;

Energy Consumers Australia or ECA means the company incorporated, or to be incorporated, by the name Energy Consumers Australia Limited;

energy ombudsman has the same meaning as in the National Energy Retail Law;

Energy Security Board means the Energy Security Board referred to in section 2(1) of the NEL;

ERA means the Economic Regulation Authority established by section 4 of the Economic Regulation Authority Act 2003 of Western Australia;

exempted participant means a person exempted from registration as a Registered participant;

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);

former gas market operator means any of the following—

(a)  VENCorp;

(b)  Gas Market Company Limited (ACN 095 400 258);

(c)  in relation to South Australia (but not Western Australia)—Retail Energy Market Company Limited (ACN 103 318 556);

(d)  the gas retail market operator appointed under section 257A of the Gas Supply Act 2003 (Qld);

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 statement of opportunities means the statement published under Chapter 2 Part 6 Division 4;

gas trading exchange means a facility through which persons may elect to buy and sell natural gas or related goods or services, including pipeline capacity;

gas trading exchange agreement means an agreement that relates to participation in, and the operation and administration of, a gas trading exchange established by AEMO to which AEMO (or a person appointed by AEMO to operate the gas trading exchange), and a person who becomes a member of the exchange, are parties;

gas trading exchange functions—AEMO’s gas trading exchange functions are as set out in section 91BRK;

gas trading exchange member means a person who is (or who was at the relevant time) a member of a gas trading exchange under a gas trading exchange agreement;

general market information order means an order under section 91F(1)(a) requiring information from persons of a class specified in the order;

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;

GSOO information means information that—

(a)  a person gives to AEMO to comply with section 91DB; or

(b)  a person gives to AEMO for the preparation of the gas statement of opportunities in circumstances expressly permitted by the Rules;

GSOO Procedures means Procedures directed at regulating the collection of information for the gas statement of opportunities;

GTE amendments means the amendments to this Law made by the National Gas (South Australia) (Gas Trading Exchanges) Amendment Act 2013;

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 Procedures means National Gas Procedures made under section 294A and includes Wholesale Market Procedures and BB Procedures in force immediately before the commencement of the National Gas (South Australia) (National Gas Law—Australian Energy Market Operator) Amendment Act 2009;

initial National Gas Rules means the Initial National Gas Rules made under Chapter 9 Part 2;

initial Operational Transportation Service Code means the Operational Transportation Service Code made under section 294DA;

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;

jurisdictional regulator means—

(a)  for New South Wales—the Independent Pricing and Regulatory Tribunal of New South Wales established by section 5(1) of the Independent Pricing and Regulatory Tribunal Act 1992 of New South Wales;

(b)  for Victoria—the Essential Services Commission established by section 7(1) of the Essential Services Commission Act 2001 of Victoria;

(c)  for Queensland—the Queensland Competition Authority established by section 7 of the Queensland Competition Authority Act 1997 of Queensland;

(d)  for South Australia—the Essential Services Commission established by section 4(1) of the Essential Services Commission Act 2002 of South Australia;

(e)  for Tasmania—the Director of Gas appointed under section 7 of the Gas Act 2000 of Tasmania;

(f)  for the Australian Capital Territory—the Independent Competition and Regulatory Commission for the Australian Capital Territory established by section 5(1) of the Independent Competition and Regulatory Commission Act 1997 of the Australian Capital Territory;

(g)  any other person or body—

(i)  to which the functions of the jurisdictional regulator for a participating jurisdiction are assigned by or under an Act of the participating jurisdiction; or

(ii)  that is prescribed by the Regulations as jurisdictional regulator of a participating 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;

LNG facility means a facility for the processing of natural gas from a gaseous to a liquefied state or from a liquefied to a gaseous state;

LNG service provider means a person who owns, controls or operates an LNG facility;

listed corporation has the meaning given by section 9 of the Corporations Act 2001 of the Commonwealth;

market information instrument means a general market information order or a market information notice;

market information notice means a notice under section 91F(1)(b) requiring information from the person to whom the notice is addressed;

market operator service means a service classified under the Rules as a market operator service;

MCE means the group of Ministers (constituting or forming part of a Ministerial Council, Standing Council of Ministers or similar body (however described)) responsible for energy matters at a national level comprising 9 Ministers as follows—

(a)  1 Minister from the Commonwealth;

(b)  1 Minister from each State (totalling 6 Ministers);

(c)  1 Minister from each Territory (totalling 2 Ministers),

acting in accordance with its own procedures;

MCE directed review means a review conducted by the AEMC under Chapter 2 Part 2 Division 4;

MCE statement of policy principles means a statement of policy principles issued by the MCE under section 25;

minimum ring fencing requirement means a requirement under Chapter 4 Part 2 Division 2;

Ministerial Gazette notice means a notice in the South Australian Government Gazette published by the South Australian Minister on the recommendation of the MCE;

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 Electricity Law means the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia;

National Electricity Rules has the same meaning as in the National Electricity Law;

National Energy Retail Law means the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia;

National Energy Retail Rules has the same meaning as in the National Electricity Law;

natural gas industry includes—

(a)  activities and transactions relating to—

(i)  processable gas; or

(ii)  natural gas (including liquefied natural gas) and natural gas services; or

(iii)  natural gas industry facilities; or

(iv)  services provided by means of natural gas industry facilities; and

(b)  activities and transactions relating to petroleum tenements; and

(c)  any other activities or transactions specified by the Regulations for the purposes of this paragraph;

natural gas industry facility means—

(a)  a pipeline; or

(b)  a compression service facility; or

(c)  a gas processing plant; or

(d)  an LNG facility; or

(e)  a storage facility; or

(f)  a user facility; or

(g)  another facility of a type specified by the Regulations for the purposes of this paragraph;

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 (WA) Act 2009 of Western Australia; and

(d)  the National Gas Access (Western Australia) Law within the meaning given in the National Gas Access (WA) Act 2009 of Western Australia; and

(e)  Regulations made under the National Gas Access (WA) Act 2009 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 Procedures or Procedures means—

(a)  the initial National Gas Procedures; and

(b)  Procedures made by AEMO under this Law, including Procedures that amend or revoke the initial National Gas Procedures or Procedures earlier made by AEMO;

National Gas Rules or Rules means—

(a)  the initial National Gas Rules; and

(ab)  Rules made under Chapter 9 Part 2 Division 2; and

(b)  Rules made by the AEMC under this Law, including Rules that amend or revoke—

(i)  the initial National Gas Rules or Rules made under Chapter 9 Part 2 Division 2; 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 AEMO that contains information of the kind specified in the Rules in relation to the natural gas industry;

NCC means the National Competition Council established by section 29A of the Competition and Consumer Act 2010 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;

operational transportation service means—

(a)  a transportation service that is provided under an operational transportation service agreement using transferred transportation capacity; and

(b)  a service ancillary to the provision of a service referred to in paragraph (a);

operational transportation service agreement means an agreement between a transportation service provider and a transportation facility user that provides for—

(a)  the transportation facility user to receive a transfer of transportation capacity acquired through any of the following means—

(i)  a capacity auction; or

(ii)  a gas trading exchange; or

(iii)  any other means provided for in the agreement; and

(b)  the terms and conditions applicable to the use of that transportation capacity;

Operational Transportation Service Code has the meaning given by section 228H;

participating jurisdiction means a jurisdiction that is a participating jurisdiction by reason of section 21;

petroleum includes any naturally occurring hydrocarbon, mixture of hydrocarbons or mixture of hydrocarbons and non-hydrocarbons, whether in gaseous, liquid or solid state;

petroleum tenement means a right granted under law to explore for, extract, recover or process petroleum;

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 information order has the meaning given by section 46A;

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;

protected information has the meaning given by section 91G;

queuing requirements means terms and conditions providing for the priority that a prospective user has, as against any other prospective user, to obtain access to spare capacity and developable capacity;

rate of return instrument—see section 30D(2);

reclassification decision means a decision of the NCC under Chapter 3 Part 5;

reference service means a pipeline service specified by, or determined or approved by the AER under, the Rules as a reference service;

reference tariff means a tariff or charge for a reference service—

(a)  specified in an applicable access arrangement approved or made under a full access arrangement decision; or

(b)  determined by applying the formula or methodology contained in an applicable access arrangement approved or made under a full access arrangement decision;

Registered participant means a person registered as such by AEMO under this Law (section 91BJ, section 91BRD or section 91LB) and the Rules, but does not include a transportation service provider registered under section 91BRR;

regulated gas market means—

(a)  a declared wholesale gas market; or

(ab)  a short term trading market; or

(b)  a regulated retail gas market;

regulated retail gas market has the meaning given by section 91L(2);

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;

(c)  a price information order;

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;

REMCo means the Retail Energy Market Company Limited (ACN 103 318 556);

retail customer means a person to whom natural gas is sold for premises by a retailer.

retail gas market has the meaning given by section 91L(1);

Retail Market Procedures means Procedures directed at regulating a retail gas market;

retailer means a person who is the holder of a retailer authorisation issued under the National Energy Retail Law in respect of the sale of gas;

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;

rule dispute means a dispute for the resolution of which provision is made in the Rules;

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;

short term trading market means a market for the supply of natural gas that—

(a)  operates in an adoptive jurisdiction; and

(b)  is defined in a Rule made for the purposes of Chapter 2 Part 6 Division 2A to be a short term trading market of that adoptive jurisdiction;

Note—

There may be more than 1 short term trading market of an adoptive jurisdiction.

spare capacity means unutilised capacity of a pipeline;

standard gas day means the 24 hour period starting at the time specified in the standard market timetable;

standard market timetable means the standard market timetable provided for in the Rules in accordance with section 83B;

standard OTSA means an operational transportation service agreement within the meaning of section 228B as amended from time to time;

statutory functions, in relation to AEMO, means functions or powers conferred under—

(a)  this Law, the Rules or the Procedures; or

(b)  the National Electricity Law or the National Electricity Rules;

storage facility means a facility for storing processable gas or natural gas (including liquefied natural gas) before or after processing;

storage provider means any person who owns, controls or operates a storage facility;

STTM amendments means—

(a)  the amendments to this Law made by the National Gas (South Australia) (Short Term Trading Market) Amendment Act 2009 of South Australia; and

(b)  the amendments to the Rules made under section 294B; and

(c)  the STTM Procedures first made under this Law after the enactment of the amendments referred to in paragraph (a);

STTM functions—AEMO’s STTM functions are as set out in section 91BRB;

STTM hub means a point or points, situated in an adoptive jurisdiction, specified in the Rules or STTM Procedures, at which a short term trading market operates;

STTM information means information that—

(a)  a person gives to AEMO, to comply with section 91FEA(1); or

(b)  a person gives, in circumstances expressly required or permitted by the Procedures or Rules—

(i)  to AEMO in its capacity as operator of a short term trading market in which the person participates;

(ii)  to AEMO in its capacity as operator of another regulated gas market if that information is to be used for the purpose of a short term trading market in which the person participates;

STTM Procedures means Procedures directed at regulating a short term trading market;

STTM trading participant means a person referred to in section 91BRC;

superseded jurisdictional rules means—

(a)  legislation (including subordinate legislation) of a participating jurisdiction regulating the gas industry in that jurisdiction that—

(i)  was in force immediately before the relevant changeover date; and

(ii)  is superseded by the AEMO amendments; and

(b)  rules to which a member of a corporate former gas market operator was subject, immediately before the relevant changeover date, under the constitution of the former gas market operator; and

(c)  a licence condition governing the activities of the licensee in, or in relation to, a regulated retail gas market in a participating jurisdiction—

(i)  in force immediately before the relevant changeover date; and

(ii)  superseded by the AEMO amendments; and

(d)  a guideline, code, standard or other instrument governing the operation or regulation of a gas market in a participating jurisdiction—

(i)  made or issued by the jurisdictional regulator; and

(ii)  in force immediately before the relevant changeover date; and

(iii)  superseded by the AEMO amendments;

Examples—

1 The Gas Market Retail Rules (Vic) and the Gas Industry Market and System Operation Rules (Vic).

2 The Gas Retail Market Business Rules to Support Retail Competition in Gas (NSW).

3 The Gas Market Retail Rules (Qld).

4 The Retail Market Rules (SA).

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;

trader means a person who—

(a)  buys or sells natural gas; and

(b)  in doing so is not acting in some other registrable capacity; and

(c)  where the person is the purchaser of natural gas, is not buying the natural gas for the purchaser’s own use;

transaction support arrangements means arrangements to facilitate transactions with respect to transportation capacity and related goods and services concluded or to be concluded through a gas trading exchange or a capacity auction;

transfer, in relation to transportation capacity, includes a reduction in a person’s right to the transportation capacity and a corresponding increase in another person’s right to transportation capacity, whether or not on the same terms and conditions;

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.

transportation capacity means a right under a contract with a transportation service provider to be provided with a transportation service by means of a transportation facility, for a given quantity of natural gas over a given period of time;

transportation facility means—

(a)  a pipeline; or

(b)  a compression service facility; or

(c)  another facility of a type specified by the Regulations for the purposes of this paragraph;

transportation facility user means a person who is a party to a contract with a transportation service provider under which the transportation service provider provides, or intends to provide, a transportation service to that person by means of a transportation facility and includes a user and a non scheme pipeline user;

transportation service means—

(a)  a pipeline service; or

(b)  a service provided by means of a compression service facility; or

(c)  a service provided by means of any other facility of a type specified by the Regulations for the purposes of paragraph (c) of the definition of transportation facility;

transportation service provider means a person who owns, controls or operates a transportation facility;

Tribunal means the Australian Competition Tribunal referred to in the Competition and Consumer Act 2010 of the Commonwealth and includes a member of the Tribunal or a Division of the Tribunal performing functions of the Tribunal;

user means a person who—

(a)  is a party to a contract with a service provider under which the service provider provides or intends to provide a pipeline service to that person by means of a scheme pipeline; or

(b)  has a right under an access determination to be provided with a pipeline service by means of a scheme pipeline;

user facility means a facility by means of which natural gas is consumed (including by transformation of the gas into a new form) and which is not any other form of natural gas industry facility;

user or consumer association has the meaning given by section 244;

user or consumer interest group has the meaning given by section 244;

VENCorp means the Victorian Energy Networks Corporation continued under Part 8 of the Gas Industry Act 2001 of Victoria until the AEMO amendments come into force;

Wholesale Market Procedures means Procedures directed at regulating the declared wholesale gas market of an adoptive jurisdiction.

(2)  A reference in this Law to an end user includes a reference to a prospective end user.

s 2: Am 2009 No 30, sec 6; 2009 No 46, secs 4, 16; 2011 No 7, sec 50; 2013 No 54, sec 4; 2013 No 79, sec 19; 2014 No 21, sec 26; 2018 No 12, sec 21; 2018 No 23, sec 4; 2018 No 33, sec 13; 2020 No 37, sec 47; 2021 No 3, sec 33; 2022 No 3, sec 4.

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; or

(c)  a declared system provision that is prescribed by or under the application Act of the adoptive jurisdiction to be a civil penalty provision.

Table

Item	Provision
1	Section 56
2	Section 57
2A	Section 91BE(1)
2B	Section 91BF(1)
2C	Section 91BJ(1)
2D	Section 91BN(5)
2DA	Section 91BRD(1)
2DB	Section 91BRJ(5)
2DC	Section 91FEA
2E	Section 91FC(3) and (4)
2F	Section 91LB(1)
2G	Section 91MB(6)
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

s 3: Am 2009 No 30, sec 7; 2009 No 46, sec 5.

3A Civil penalty amounts for breaches of civil penalty provisions

(1)  Subject to this section, the civil penalty for a breach of a civil penalty provision is—

(a)  in the case of a breach of a civil penalty provision, other than a provision prescribed under paragraph (b) or (c)—

(i)  if the breach is by a natural person—

(A)  an amount not exceeding $33 900; plus

(B)  an amount not exceeding $3 390 for every day during which the breach continues;

(ii)  if the breach is by a body corporate—

(A)  an amount not exceeding $170 000; plus

(B)  an amount not exceeding $17 000 for every day during which the breach continues; or

(b)  in the case of a breach of a civil penalty provision prescribed by the Regulations for the purposes of this paragraph—

(i)  if the breach is by a natural person—

(A)  an amount not exceeding $287 000; plus

(B)  an amount not exceeding $14 400 for every day during which the breach continues;

(ii)  if the breach is by a body corporate—

(A)  an amount not exceeding $1 435 000; plus

(B)  an amount not exceeding $71 800 for every day during which the breach continues; or

(c)  in the case a breach of a civil penalty provision prescribed by the Regulations for the purposes of this paragraph—

(i)  if the breach is by a natural person—an amount not exceeding $500 000;

(ii)  if the breach is by a body corporate—an amount not exceeding the greater of the following—

(A)  $10 000 000;

(B)  if the Court can determine the value of any benefit reasonably attributable to the breach of the civil penalty provision that the body corporate, and any body corporate related to the body corporate, has obtained, directly or indirectly—3 times the value of that benefit;

(C)  if the Court cannot determine the value of the benefit—10% of the annual turnover of the body corporate during the 12-month period ending at the end of the month in which the body corporate breached, or began breaching, the civil penalty provision.

Note—

See Schedule 2 clause 47A, which provides for the amounts specified in this subsection to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

(2)  Subsection (1)(c)(ii)(B) or (C) will only apply in a particular case if the AER, in applying for an order under section 231(2)(a), requests that those provisions be applied in that particular case.

s 3A: Ins 2020 No 37, sec 48.

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; or

(c)  a declared system provision that is prescribed by or under the application Act of the adoptive jurisdiction to be a conduct provision.

Table

Item	Provision
A1	Section 91BP
A2	Section 91BRF
A3	Section 91BRG
1	Section 133
2	Section 134
3	Section 135
4	Section 136
5	Section 147
6	Section 148
7	Section 170

s 4: Am 2009 No 30, sec 8; 2009 No 46, sec 6.

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

(ia)  the National Energy Retail Law or the National Energy Retail 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, the National Energy Retail Law or the National Energy Retail Rules¹ or an Act or an instrument referred to in subsection (1)(b)(ii) to (v).

Notes—

1 See also section 24(2)(b).

2 The RoLR cost recovery scheme is dealt with under Part 6 of the National Energy Retail Law.

s 6: Am 2011 No 7, sec 51.

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)  If AEMO controls or operates (without at the same time owning) a pipeline or scheme pipeline, or any part of a pipeline or scheme pipeline, AEMO is not for that reason to be taken to be a service provider for the purposes of this Law.

s 8: Am 2009 No 30, sec 9.

8AA Meaning of transportation service provider

If AEMO controls or operates (without at the same time owning) a compression service facility or another facility of a type prescribed by the Regulations for the purposes of paragraph (c) of the definition of transportation facility in section 2, AEMO is not for that reason to be taken to be a transportation service provider for the purposes of this Law.

s 8AA: Ins 2018 No 23, sec 5.

8A Nominated distributors

(1)  The regulations under the application Act of a participating jurisdiction (a local regulation) may—

(a)  nominate an entity, being an entity that is licensed or otherwise authorised under the jurisdictional gas legislation of that jurisdiction to operate a distribution pipeline that is not a covered pipeline, as an entity to which this section applies (the nominated distributor); and

(b)  apply to the nominated distributor specified provisions of the Rules that relate to the following matters—

(i)  the connection of premises of retail customers;

(ii)  retail support obligations between distributors and retailers;

(iii)  credit support arrangements between distributors and retailers.

(2)  The application of any such specified provisions of the Rules to the nominated distributor is subject to such modifications as may be specified in the local regulation.

(3)  The nominated distributor—

(a)  must comply with the Rules to the extent that the Rules are applied by the local regulation to the nominated distributor; and

(b)  may, to the extent that the Rules apply to the nominated distributor, be proceeded against under this Law for any breach of those Rules.

(4)  A nomination of an entity by a local regulation may be made for—

(a)  the whole or a specified part of the geographical area of a jurisdiction; or

(b)  the whole or a specified part of the distribution pipeline that is operated by the entity,

or for both.

(5)  The Minister responsible for administering the application Act (other than the application Act of South Australia) under which a local regulation referred to in this section is made is to make arrangements for notice of the making and publication of the regulation to be published for information in the South Australian Government Gazette.

s 8A: Ins 2011 No 7, sec 52.

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 person (a group) carries out a controlling facility activity in respect of a natural gas industry facility (or part of a natural gas industry facility); and

(b)  under this Law or the Rules a person who carries out a controlling facility activity in respect of the facility (or part of the facility) mentioned in paragraph (a) is required or allowed to do a thing.

(2)  A member of the group (the complying member) may do that thing on behalf of the other members of the group if the complying member has the written permission of all of the members of that group to do that thing on behalf of the group.

(3)  Unless this Law or the Rules otherwise provide, on the doing of a thing referred to in subsection (2) by a complying member, the members of the group on whose behalf the complying member 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 member.

(4)  This section does not apply to a thing required or allowed to be done under section 131, Chapter 4 Part 2 or section 228K or 228L.

(5)  In this section—

controlling facility activity means—

(a)  in relation to a pipeline—own, control or operate, or intend to own, control or operate, the pipeline (or part of the pipeline); or

(b)  in relation to any other natural gas industry facility—own, control or operate the natural gas industry facility (or part of the facility).

s 10: Am 2018 No 23, sec 6; 2022 No 3, sec 5.

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.

19A Related bodies corporate

For the purposes of this Law, 2 or more bodies corporate are related to each other if they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth.

s 19A: Ins 2020 No 37, sec 49.

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

(1)  The following jurisdictions are participating jurisdictions for the purposes of this Law—

(a)  the State of South Australia; and

(b)  the Commonwealth, a Territory or a State (other than South Australia) if there is in force, as part of the law of that jurisdiction, a law that applies this Law or any part of this Law (whether by a law that corresponds to Part 2 of the National Gas (South Australia) Act 2008 of South Australia or by some other law).

(2)  If a law of a participating jurisdiction referred to in subsection (1)(b) ceases to be in force, the jurisdiction ceases to be a participating jurisdiction.

s 21: Subst 2021 No 3, sec 34.

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 Ministers of the Crown in right of the other participating jurisdictions administering the laws of those jurisdictions that apply this Law or any part of this Law (whether by a law that corresponds to Part 2 of the National Gas (South Australia) Act 2008 of South Australia or by some other law).

(c), (d)    (Repealed)

s 22: Am 2009 No 30, sec 10; 2021 No 3, sec 35.

pt 5 (s 26A): Ins 2011 No 7, sec 53.

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.

Part 5 Corporations Act displacement

26A Corporations Act displacement

(1)  The Regulations may declare a relevant provision to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of Chapter 5 of that Act.

(2)  In this section—

relevant provision means a provision of the Rules that relates to any of the following—

(a)  the functions of the AEMO under procedures relating to defaults by retailers;

(b)  the application (or drawing on) of credit support held by a distributor in respect of a retailer who is the subject of a RoLR event within the meaning of Part 6 of the National Energy Retail Law.

pt 5 (s 26A): Ins 2011 No 7, sec 53.

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 (including AEMO) with this Law, the Regulations and the Rules, including compliance with an applicable access arrangement, an access determination and a ring fencing decision; and

(b)  to investigate breaches or possible breaches of provisions of this Law, the Regulations or the Rules, including offences against this Law; and

(c)  to institute and conduct proceedings in relation to breaches of provisions of this Law, the Regulations or the Rules, including offences against this Law; and

(d)  to institute and conduct appeals from decisions in proceedings referred to in paragraph (c); and

(da)  to make a rate of return instrument; and

(e)  AER economic regulatory functions or powers; and

(ea)  to make and amend the Operational Transportation Service Code in accordance with this Law and the Rules; 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

(fa)  in relation to goods or services in the natural gas industry—

(i)  to prepare and publish, in accordance with the Rules, aggregated and anonymised information or data about prices for those goods or services; and

(ii)  other monitoring, analysing or reporting functions that relate to prices for those goods or services conferred on the AER by this Law or the Rules; and

(iii)  for the purposes of subparagraph (i) or (ii)—to collect and analyse information or data about prices from sources determined by the AER or specified in the Rules; 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.

(1a)  The AER has the following functions and powers in relation to the Procedures—

(a)  to investigate breaches or possible breaches of the Procedures referred to the AER by AEMO; and

(b)  to institute and conduct proceedings in relation to breaches of the Procedures referred to the AER by AEMO; and

(c)  to institute and conduct appeals from decisions in proceedings referred to in paragraph (b); and

(d)  to approve, in consultation with AEMO, compliance programs relating to compliance by Registered participants with the Procedures.

(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.

s 27: Am 2009 No 30, sec 11; 2018 No 23, sec 7; 2018 No 33, sec 14; 2022 No 3, sec 6.

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—

(a)  perform or exercise that function or power in a manner that will or is likely to contribute to the achievement of the national gas objective; and

(b)  if the AER is making a designated regulatory decision—

(i)  ensure that—

(A)  the covered pipeline service provider that provides the pipeline services to which the applicable access arrangement decision will apply; and

(B)  users or prospective users of the pipeline services that the AER considers have an interest in the matter; and

(C)  any user or consumer associations or user or consumer interest groups that the AER considers have an interest in the matter,

are, in accordance with the Rules—

(D)  informed of the material issues under consideration by the AER; and

(E)  given a reasonable opportunity to make submissions in respect of the decision before it is made; and

(ii)  specify—

(A)  the manner in which the constituent components of the decision relate to each other; and

(B)  the manner in which that interrelationship has been taken into account in the making of the decision; and

(iii)    (Repealed)

(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”.

s 28: Am 2013 No 79, sec 20; 2021 No 3, sec 36.

29 Delegations

Any delegation by the AER under section 44AAH of the Competition and Consumer Act 2010 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 Competition and Consumer Act 2010 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 1A Rate of return instrument

Subdivision 1 Preliminary

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30A Definitions

In this Division—

consumer reference group, for making a rate of return instrument, see section 30H(1)(a);

explanatory information, for a rate of return instrument, means information about the content of the instrument, including (but not limited to) information explaining—

(a)  the reasons for the rate of return on capital or the value of imputation credits under the instrument; and

(b)  how the stated value, or the way to calculate the rate or value, was decided; and

(c)  if the instrument replaces another instrument—

(i)  the differences (if any) between the instrument and the replaced instrument; and

(ii)  the reasons for any differences; and,

(d)  why the AER is satisfied the instrument will, or is most likely to, contribute to the achievement of the national gas objective to the greatest degree; and

(e)  how the AER had regard to the following in making the instrument—

(i)  the revenue and pricing principles;

(ii)  the matters mentioned in section 30G;

(iii)  estimation methods, financial models, market data and other evidence relevant to making the instrument;

(iv)  prevailing conditions in the market for equity funds;

(v)  the interrelationships between financial parameters used, or to be used, in relation to deciding the rate or value.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30B Rate of return instrument has force of law

(1)  A rate of return instrument has the force of law in this jurisdiction.

(2)  An Act of this jurisdiction regulating the making of subordinate legislation does not apply to a rate of return instrument.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30C Rate of return instrument is binding on AER and covered pipeline service providers

A rate of return instrument is binding on—

(a)  the AER in relation to the performance or exercise of an AER economic regulatory function or power; and

(b)  each covered pipeline service provider in relation to a matter relevant to the performance or exercise of an AER economic regulatory function or power.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

Subdivision 2 Requirement to make rate of return instrument

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30D AER to make rate of return instrument

(1)  This section applies if a rate of return on capital or the value of imputation credits is required for performing or exercising an AER economic regulatory function or power.

(2)  The AER must make an instrument (a rate of return instrument) stating—

(a)  for a rate of return on capital—the way to calculate the rate; and

(b)  for the value of imputation credits—the value or the way to calculate the value.

(3)  The AER may make an instrument only if satisfied the instrument will, or is most likely to, contribute to the achievement of the national gas objective to the greatest degree.

(4)  Subject to subsection (3), the way to calculate a rate of return on capital must include a weighted average of an allowed return on equity and an allowed return on debt.

(5)  In making an instrument, the AER must have regard to—

(a)  the revenue and pricing principles; and

(b)  other information the AER considers appropriate.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30E Content of rate of return instrument

(1)  If a rate of return instrument states the value of imputation credits, the instrument must state a single value to apply in relation to all covered pipeline service providers.

(2)  If a rate of return instrument states a way to calculate the rate of return on capital or the value of imputation credits, the instrument must—

(a)  provide for the same methodology to apply in relation to all covered pipeline service providers in calculating the rate or value; and

(b)  provide for the methodology to apply automatically without the exercise of any discretion by the AER.

Example for paragraph (b)—

The instrument can not include different methodologies or a band of values from which the AER could choose in applying the instrument.

(3)  Subject to subsections (1) and (2), the instrument may include other matters the AER considers appropriate.

Example—

Matters to help a covered pipeline service provider calculate a rate of return or the value of imputation credits.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

Subdivision 3 Consultation requirements

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30F Process for making rate of return instrument

Subject to this Division, the AER may make a rate of return instrument in the way it considers appropriate.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30G Other matters AER must have regard to in making instrument

In making a rate of return instrument, the AER must also have regard to the following—

(a)  advice, recommendations or submissions given by a consumer reference group;

(b)  submissions made, and the report published, under section 30H;

(c)  submissions made under section 30J;

(d)  the report given by the independent panel under section 30K.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30H Requirements before publishing draft instrument

(1)  Before publishing a draft rate of return instrument under this Subdivision, the AER must—

(a)  establish a reference group to help the AER implement an effective consumer consultation process for making the proposed instrument (a consumer reference group); and

(b)  publish a notice on its website—

(i)  inviting persons to make a written submission to the AER about the proposed instrument; and

(ii)  stating the period, not less than 28 days, within which a submission must be made; and

(c)  seek concurrent expert opinions or evidence about the proposed instrument.

(2)  A person may make a submission after the stated period only with the written approval of the AER.

(3)  Subject to subsections (4) and (5), the AER may seek the expert opinions or evidence in the way it considers appropriate.

Example—

The AER might convene a conference of experts to identify key issues, and areas of dispute and agreement among the experts, about the content of the proposed instrument.

(4)  The AER must call for nominations of eligible experts but may seek the expert opinions or evidence from any eligible expert.

(5)  If practicable, the AER must seek the expert opinions or evidence from at least 3 eligible experts.

(6)  The AER must publish on its website—

(a)  submissions made under this section; and

(b)  a report on the outcomes of seeking the expert opinions or evidence.

(7)  In this section—

eligible expert means a person with qualifications or experience in a field the AER considers relevant to making a rate of return instrument.

Examples of relevant fields—

Finance, economics, law, consumer affairs, institutional investment.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30I Consumer reference group

(1)  A consumer reference group for making a rate of return instrument—

(a)  is to consist of the members appointed by the AER; and

(b)  may carry out its activities, including giving advice or recommendations to the AER about the instrument, in the way it considers appropriate.

(2)  Without limiting subsection (1)(b), the consumer reference group may—

(a)  consult with consumers of natural gas; and

(b)  facilitate consumer engagement in the process for making the instrument; and

(c)  make written submissions to the AER about the content of the instrument and the process for making it.

(3)  The AER must publish on its website any written advice, recommendations or submissions given to it by the consumer reference group.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30J Publication of draft instrument and other information

(1)  The AER must, at least 6 months before making a rate of return instrument, publish on its website—

(a)  a draft of the proposed instrument and the explanatory information for the instrument; and

(b)  a notice—

(i)  inviting persons to make a written submission to the AER about the proposed instrument; and

(ii)  stating the period, not less than 28 days, within which a submission must be made.

(2)  A person may make a submission after the stated period only with the written approval of the AER.

(3)  The AER must publish submissions made under this section on its website.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30K Report about draft instrument by independent panel

(1)  The AER must, as soon as practicable after publishing the draft instrument, establish an independent panel to give the AER a written report about the instrument.

(2)  The panel—

(a)  may carry out its activities, including giving the report, in the way it considers appropriate; but

(b)  must seek to give the report by consensus.

(3)  The panel must—

(a)  consist of at least 3 members, appointed by the AER, who have qualifications or experience in a field the AER considers relevant to making a rate of return instrument; and

Examples of relevant fields—

Finance, economics, law, consumer affairs, institutional investment.

(b)  give the report to the AER before the AER makes the instrument.

(4)  The AER must take reasonable steps to minimise and manage any conflicts of interest a panel member may have in relation to making the instrument.

(5)  The report must—

(a)  include the panel’s assessment of the evidence and reasons supporting the rate of return on capital or the value of imputation credits under the instrument; and

(b)  state whether the report is given by consensus.

(6)  The AER must publish the report on its website.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30L Publication of explanatory information

The AER must publish explanatory information for a rate of return instrument on its website when the instrument is published under section 30N.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30M Failure to comply does not affect validity

Failure to comply with this Subdivision does not invalidate or otherwise affect a rate of return instrument.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

Subdivision 4 Publication, review and other matters

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30N Publication of rate of return instrument

After making a rate of return instrument, the AER must publish the instrument on its website.

Note—

See section 30L for the requirement to publish explanatory information for the instrument.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30O Commencement and duration of instrument

A rate of return instrument—

(a)  commences on the day after it is published on the AER’s website; and

(b)  remains in force until the end of the day it is replaced under section 30P.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30P Review and replacement of instrument

(1)  The AER must—

(a)  review each rate of return instrument; and

(b)  make a new rate of return instrument under this Division to replace the reviewed instrument.

(2)  The AER must replace the reviewed instrument by publishing the new instrument on its website on the day that is—

(a)  the fourth anniversary of the day the reviewed instrument was published; or

(b)  if the day mentioned in paragraph (a) is not a business day—the first business day after that day.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30Q Application of instrument

(1)  A rate of return instrument—

(a)  applies for the purposes of an AER economic regulatory decision made after the commencement of the instrument; and

(b)  does not affect an AER economic regulatory decision made before the commencement of the instrument.

(2)  To remove any doubt, it is declared that the application of the instrument under this Law, including, for example, in making a full access arrangement decision, is an AER economic regulatory function or power.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30R Rate of return instrument may apply for this Law and the National Electricity Law

(1)  The AER may make 1 rate of return instrument for the purposes of this Law and the National Electricity Law.

(2)  If the AER acts under subsection (1)—

(a)  the process for making the instrument under Part 3 Division 1B of the National Electricity Law is taken to have been complied with for the instrument; and

(b)  the instrument is taken to be the rate of return instrument for the purposes of the National Electricity Law.

Note—

See also section 18W of the National Electricity Law.

(3)  To remove any doubt, it is declared that the instrument may include different ways to calculate the rate of return on capital and the value of imputation credits for the purposes of this Law and the National Electricity Law.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

Subdivision 5 Confidentiality of information

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30S Confidentiality

(1)  If a person wishes to give information to the AER for the purposes of this Division in confidence—

(a)  the person must give the AER written notice that the person claims the information is confidential; and

(b)  give reasons to support the claim, including—

(i)  information about the detriment that might be caused to the person if the information were disclosed by the AER; and

(ii)  information that—

(A)  is reasonably within the person’s knowledge and capacity to give; and

(B)  may be relevant to the AER’s consideration under section 329 about whether the public benefit in disclosing the information outweighs the detriment.

(2)  In giving reasons to support a claim under subsection (1) about information received from another person (a third party), a person may include information that—

(a)  is reasonably within the person’s knowledge and capacity to give; and

(b)  is about the detriment that might be caused to the third party if the information were disclosed by the AER; and

(c)  may be relevant to the AER’s consideration under section 329 about whether the public benefit in disclosing the information outweighs the detriment.

(3)  In acting under subsection (1), a person must specifically identify the information in relation to which the claim is made.

(4)  Information given to the AER for the purposes of this Division is not to be regarded as being given in confidence, or to be confidential in any way, unless the information is subject to an express claim of confidentiality made under this section.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

30T Disclosure of information given in confidence

(1)  Chapter 10 Part 2 Division 1 applies in relation to publishing information given to the AER in confidence under this Division.

(2)  In this section—

information includes advice, recommendations, submissions and reports.

ch 2, pt 1, div 1A, sdivs 1–5 (ss 30A–30T): Ins 2018 No 33, sec 15.

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—$620.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

s 34: Am 2020 No 37, sec 50.

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—$3 400;

(b)  in the case of a body corporate—$17 000.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

s 41: Am 2020 No 37, sec 51.

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, producing a document or giving evidence that the AER requires for the performance or exercise of a function or power conferred on it under this Law or the Rules, the AER may, by notice in writing, serve on that person a notice (a relevant notice).

(2)  A relevant notice may require the person to do 1 or more of the following—

(a)  provide to the AER, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any information of the kind referred to in subsection (1); or

(b)  produce to the AER, or to a person specified in the notice acting on its behalf, in accordance with the notice, any documents of the kind referred to in subsection (1); or

(c)  appear before the AER, or before a member of the staff assisting the AER who is an SES employee or an acting SES employee and who is specified in the notice, at a time and place specified in the notice, to provide any information or to give any evidence of the kind referred to in subsection (1), either orally or in writing, and to produce any documents of the kind referred to in subsection (1).

(3)  A person on whom a relevant notice is served must comply with the relevant notice unless the person has a reasonable excuse.

Maximum penalty—

(a)  in the case of a natural person—$6 300;

(b)  in the case of a body corporate—$31 500.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

(3a)  A person must not, when appearing under subsection (2)(c), refuse or fail to answer a question that the person is required to answer for the purpose of providing information or giving evidence unless the person has a reasonable excuse.

Maximum penalty—$6 300.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

(4)  A person must not, in purported compliance with a relevant notice, provide information or give evidence that the person knows is false or misleading in a material particular.

Maximum penalty—

(a)  in the case of a natural person—$6 300;

(b)  in the case of a body corporate—$31 500.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

(5)  It is a reasonable excuse for the purposes of subsection (3) if the person served the relevant notice is not capable of complying with that notice.

(5a)  It is a reasonable excuse for the purposes of subsection (3a) if the person is not capable of providing the information or giving the evidence (as the case may be) to which the question relates.

(6)  It is a reasonable excuse for a natural person to—

(a)  fail to provide information or to give evidence of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice;

(b)  fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER,

if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or a law of another participating jurisdiction.

(7)  It is not a reasonable excuse for a person to—

(a)  fail to provide information of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice; or

(b)  fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER,

on the ground of any duty of confidence.

(8)  This section does not require a person to—

(a)  provide information that is the subject of legal professional privilege; or

(b)  produce a document the production of which would disclose information that is the subject of legal professional privilege.

(9)  This section does not require a person to—

(a)  provide information or give evidence that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or

(b)  produce a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or

(c)  provide information, give evidence or produce a document that would disclose the deliberations of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory.

(9a)  The AER, or a person specified in a relevant notice under this section, may require evidence given under subsection (2)(c) to be given on oath or affirmation and for that purpose the AER or specified person (as the case may be) may administer the oath or affirmation.

(9b)  A person must not, without reasonable excuse, refuse or fail to be sworn or to make an affirmation under subsection (9a).

Maximum penalty—$6 300.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

(10)  A person incurs, by complying with a relevant notice, no liability for breach of contract, breach of confidence or any other civil wrong.

(11)  Subject to the preceding subsections, the Court may, on application by the AER on behalf of the Commonwealth, if satisfied that a person has breached subsection (3) or (3a), make an order that the person take such action as the Court requires for remedying the breach.

(12)  To avoid doubt, the Court may act under subsection (11) if satisfied on the balance of probabilities that a person is in breach of subsection (3) or (3a) (as the case may be).

(13)  The AER must not exercise, or continue to exercise, a power under subsection (1) in relation to a matter (and any notice under that subsection will cease to have effect)—

(a)  after the AER has commenced proceedings in relation to the matter, other than proceedings for an injunction (whether interim or final); or

(b)  if proceedings for a final injunction have been commenced by the AER—after the close of pleadings in those proceedings.

(14)  Subsection (13) does not prevent the AER from—

(a)  using any information, evidence or document acquired under this section in any proceedings if the information, evidence or document has been obtained before the commencement of those proceedings; or

(b)  exercising a power under this section for a purpose other than for the purposes of proceedings referred to in that subsection.

(15)  Any information, evidence or document obtained under subsection (14)(b) may be used in any proceedings if it is found to be relevant to those proceedings.

(16)  The Regulations may make any other provision in relation to the form, content or service of a notice under this section.

(17)  An annual report for the AER must include the following information relating to the relevant reporting period for that report—

(a)  the number of notices (if any) given under subsection (2)(c) during the reporting period to appear to provide information or to give evidence orally;

(b)  in relation to a notice under paragraph (a)—a general description of the nature of the matter or matters in respect of which the notice was given;

(c)  the number of proceedings (if any) commenced during the reporting period to challenge a notice given under subsection (2)(c) to appear to provide information or to give evidence orally.

(18)  A person must not—

(a)  threaten, intimidate or coerce another person; or

(b)  cause or procure damage, loss or disadvantage to another person,

because that other person—

(c)  proposes to provide information, give evidence or produce a document in response to a notice under this section; or

(d)  proposes to appear, or has appeared, in response to a notice under this section.

Maximum penalty—$6 300.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

(19)  In this section—

acting SES employee has the same meaning as in the Public Service Act 1999 of the Commonwealth;

SES employee has the same meaning as in the Public Service Act 1999 of the Commonwealth.

s 42: Am 2020 No 37, sec 52.

Division 4 Regulatory information notices, general regulatory information orders and price information orders

ch 2, pt 1, div 4, hdg: Subst 2022 No 3, sec 7.

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

(1)  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.

(2)  A general regulatory information order does not include an order that is made as a price information order.

s 45: Am 2022 No 3, sec 8.

46 Meaning of regulatory information notice

(1)  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.

(2)  A regulatory information notice does not include an order that is made as a price information order.

s 46: Am 2022 No 3, sec 9.

46A Meaning of price information order

(1)  A price information order is an order made by the AER in accordance with this Division that requires a person of a specified class to provide to the AER information—

(a)  that relates to the AER gas price reporting functions; and

(b)  that is specified in the order.

(2)  The order may require a person to whom the order relates to prepare, maintain or keep information specified in the order in a manner and form specified in the order.

s 46A: Ins 2022 No 3, sec 10.

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 instruments

(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.

(2a)  Subject to this Division, the AER, if it considers it reasonably necessary for the performance of its AER gas price reporting functions, may make a price information order.

(3)  A regulatory information notice must not be served, or a general regulatory information order or a price 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)    (Repealed)

(e)  any application for review of a decision of the AER under Chapter 8 Part 5.

s 48: Am 2016 No 55, sec 12; 2022 No 3, sec 11.

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 an order

The AER must, in accordance with the Rules, consult with the public on the general regulatory information order or the price 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.

s 50: Am 2022 No 3, sec 12.

51 Publication requirements for orders

As soon as practicable after making a general regulatory information order or a price information order, the AER must—

(a)  publish the order on the AER’s website; and

(b)  arrange for notice of the making of the order to be published in the South Australian Government Gazette.

s 51: Am 2021 No 3, sec 37. Subst 2022 No 3, sec 13.

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 or a rate of return instrument; and

(c)  the AER considers that, having regard to the time within which it must make that AER economic regulatory decision or rate of return instrument, the time within which the AER requires the information is of the essence.

(4)  A notice under subsection (1) must—

(a)  invite the scheme pipeline service provider, or the related provider, to make written representations to the AER as to whether the AER should serve the regulatory information notice on them; and

(b)  specify the period within which the scheme pipeline service provider, or the related provider, may make the representations.

(5)  The period that must be specified in accordance with subsection (4) must be—

(a)  in the case of an urgent notice to be served—a period of not less than 5 business days and not more than 10 business days calculated from the date of the notice under subsection (1);

(b)  in all other cases—a period of at least 20 business days calculated from the date of the notice under subsection (1).

(6)  The AER must consider the written representations made in accordance with a notice under subsection (1) before making its decision in accordance with this Division to serve the regulatory information notice.

s 52: Am 2018 No 33, sec 16.

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)  except in the case of a price information order, 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 or a price information order, the order must specify the class of persons to whom the order applies.

s 53: Am 2022 No 3, sec 14.

54 Further provision about the information that may be described in a regulatory information instrument

(1)  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 person 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.

(2)  Subsection (1)(c) and (d) do not apply in relation to a price information order.

s 54: Am 2022 No 3, sec 15.

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 require that 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 person 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 person to whom the instrument applies.

s 55: Am 2009 No 30, sec 12; 2022 No 3, sec 16.

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 order

(1)  On publication of a general regulatory information order or a price information order in accordance with section 51, a person who is a member of the class of persons to which the 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.

s 57: Am 2022 No 3, sec 17.

57A Confidentiality issues

(1)  If a person wishes, in complying with a regulatory information instrument, to give information to the AER in confidence, the person must, when the information is given to the AER—

(a)  make a claim of confidentiality; and

(b)  provide reasons in support of the claim, which must include—

(i)  information about any detriment that might be caused to the person if the information were to be disclosed by the AER; and

(ii)  information—

(A)  that is reasonably within the person’s knowledge and capacity to give; and

(B)  that may be relevant to the AER’s consideration under section 329 of whether such detriment may be considered as outweighing the public benefit in disclosing the information.

(2)  A person may, in providing reasons in support of a claim under subsection (1) in respect of information received from another person (a third party), include information—

(a)  that is reasonably within the person’s knowledge and capacity to give; and

(b)  that—

(i)  is about any detriment that might be caused to the third party if the information were to be disclosed by the AER; and

(ii)  may be relevant to the AER’s consideration under section 329 of whether such detriment may be considered as outweighing the public benefit in disclosing the information.

(3)  A person must, in acting under subsection (1), specifically identify the information in relation to which the claim is made.

(4)  Information given to the AER in compliance with a regulatory information instrument is not to be regarded as being given to the AER in confidence (or to be confidential in any other respect) unless it is subject to an express claim of confidentiality made in accordance with this section.

(5)  This section does not apply in relation to a price information order.

s 57A: Ins 2016 No 55, sec 13. Am 2022 No 3, sec 18.

57B Disclosure of information given to AER in compliance with regulatory information instrument

(1)  The AER, in relation to information given to the AER in compliance with a regulatory information instrument, other than a price information order, is authorised to—

(a)  if no claim of confidentiality has been made in accordance with section 57A in relation to the information, disclose the information;

(b)  if a claim of confidentiality has been made in accordance with section 57A in relation to the information, disclose the information in accordance with Chapter 10 Part 2 Division 1.

(2)  The AER, in relation to information given to the AER in compliance with a price information order, is to treat the information as having been given to it in confidence and is authorised to disclose the information in accordance with Chapter 10 Part 2 Division 1.

s 57B: Ins 2016 No 55, sec 13. Am 2022 No 3, sec 19.

58 Exemption from compliance with general regulatory information order or price 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.

s 58: Am 2022 No 3, sec 20.

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 to make a rate of return instrument; or

(ii)  requires a related provider to provide information to the AER that is relevant to the making of an AER economic regulatory decision relating to a scheme pipeline service provider or the making of a rate of return instrument; and

(b)  the scheme pipeline service provider or related provider—

(i)  does not provide the information to the AER in accordance with the applicable regulatory information instrument; or

(ii)  provides information that is insufficient (when compared to what was requested under the applicable regulatory information instrument).

(2)  Without limiting sections 56 and 57 and despite anything to the contrary in this Law or the Rules, the AER—

(a)  may make the AER economic regulatory decision or the rate of return instrument on the basis of the information the AER has at the time it makes that decision or instrument; and

(b)  in making that decision or instrument, may make reasonable assumptions (including assumptions adverse to the interests of the scheme pipeline service provider) in respect of the matters the information required under the regulatory information instrument would have addressed had that information been provided as required.

(3)  This section does not apply in relation to a price information order.

s 59: Am 2018 No 33, sec 17; 2022 No 3, sec 21.

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—$6 300;

(b)  in the case of a body corporate—$31 500.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

s 60: Am 2020 No 37, sec 53.

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 or a price 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.

s 63: Am 2022 No 3, sec 22.

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.

(1a)  The AER must prepare a report under this section if (and to the extent) required by the Rules.

(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 and efficiency 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 or efficiency 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.

(4A)  Any information that is used to prepare a report under this section may be used by the AER in preparing any report under the National Energy Retail Law or the National Energy Retail Rules, including (but not limited to) a retail market performance report under Division 2 of Part 12 of that Law.

(5)  The AER may publish a report prepared under this section on its website.

s 64: Am 2011 No 7, sec 54; 2016 No 55, sec 14.

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 section 42 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 purposes connected with the performance or exercise of a function or power of the AER under—

(a)  this Law or the Rules; or

(b)  the National Electricity Law or the National Electricity Rules; or

(c)  the National Energy Retail Law or the National Energy Retail Rules.

s 66: Subst 2011 No 7, sec 55.

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 Guidelines

(a1)  The AER must prepare guidelines about the exercise of its powers under section 42, including about—

(a)  the rights and obligations of persons who are served with a relevant notice under that section; and

(b)  the penalties applying under that section for non compliance with a notice; and

(c)  the purposes for which information obtained under that section may be used.

(1)  The AER may prepare guidelines about the matters it will have regard to before—

(a)  making an application under section 231; or

(b)  serving an infringement notice under section 277; or

(c)  accepting an enforceable undertaking under section 230A.

(2)  The AER must publish guidelines prepared under subsection (a1) or (1) on its website.

s 68: Am 2011 No 7, sec 56; 2020 No 37, sec 54.

68A Single documentation

(1)  This section applies if the AER is authorised to prepare a document under this Law or the Rules for a purpose and is also authorised to prepare a document or documents under any of the following—

(a)  the National Electricity Law;

(b)  the National Electricity Rules;

(c)  the National Energy Retail Law;

(d)  the National Energy Retail Rules,

for the same or a similar, related or corresponding purpose.

(2)  The AER may satisfy the requirements of this Law or the Rules regarding the document under this Law or the Rules by preparing and making (and where relevant publishing) a single document.

Note—

See also section 28ZH of the National Electricity Law and section 219 of the National Energy Retail Law.

s 68A: Ins 2011 No 7, sec 57.

68B Use of information

(1)  The AER may use the information obtained under this Law or the Rules for a purpose connected with the performance or exercise of a function or power of the AER under any of the following—

(a)  the National Electricity Law;

(b)  the National Electricity Rules;

(c)  the National Energy Retail Law;

(d)  the National Energy Retail Rules.

(2)  The AER may use the information obtained under any such Law or Rules for a purpose connected with the performance or exercise of a function or power of the AER under this Law or the Rules.

(3)  This section does not limit any other provision of this Law that provides for the use of information obtained under this Law or the Rules.

Note—

See also section 28ZI of the National Electricity Law and section 220 of the National Energy Retail Law.

s 68B: Ins 2011 No 7, sec 57.

68C (Repealed)

s 68C: Ins 2013 No 79, sec 21. Am 2021 No 3, sec 38.

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; and

(ii)  the provision of pipeline services; and

(iii)  the collection, use, disclosure, copying, recording, management and publication of information in relation to the natural gas industry; and

(iv)  the operation of a regulated retail gas market; and

(v)  AEMO’s declared system functions and the operation of a declared wholesale gas market; and

(va)  AEMO’s STTM functions and the operation of a short term trading market of an adoptive jurisdiction; and

(vi)  the activities of Registered participants, users, end users and other persons in a regulated gas market; and

(vii)  the safety, security and reliability of pipelines; and

(viii)  the connection of premises of retail customers; and

(aaa)  AEMO’s gas trading exchange functions and the operation of a gas trading exchange; and

(aab)  the capacity auction functions of AEMO, the operation of a capacity auction and the activities of transportation service providers and transportation facility users in connection with a capacity auction; and

(aac)  transaction support arrangements; and

(aad)  access to and the provision of operational transportation services; and

(aa)  facilitating and supporting the provision of services to retail customers; and

(ab)  the AER gas price reporting functions; and

(b)  any matter or thing contemplated by this Law, or 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 AEMO; 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 AEMO, the AER or the AEMC);

(e)  confer a function on the AER, the AEMC or AEMO 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 AEMO;

(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;

(fa)  provide for Procedures governing the operation of regulated gas markets;

(fb)  provide for Procedures governing the operation and administration of capacity auctions and transaction support arrangements;

(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 AEMO 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—

(i)  AEMO; or

(ii)  a Registered participant or class of Registered participant; or

(iii)  any other 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 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 part of a provision of the Rules) as it applies to—

(i)  AEMO; or

(ii)  a Registered participant or class of Registered participant; or

(iii)  any other 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;

(na)  require a person or body performing or exercising a function or power, or on whom a right is conferred or an obligation is imposed under the Rules, to indemnify another such person or body;

(o)  contain provisions of a savings or transitional nature consequent on the amendment or revocation of a Rule.

s 74: Am 2009 No 30, sec 13; 2009 No 46, sec 7; 2011 No 7, sec 58; 2013 No 54, sec 5; 2018 No 23, sec 8; 2022 No 3, sec 23.

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.

(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.

s 81: Am 2021 No 3, sec 39.

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

83A Special information and transparency requirements relating to non-scheme pipelines

(1)  In this section—

non-scheme pipeline means—

(a)  a transmission pipeline that is not a scheme pipeline; and

(b)  a distribution pipeline that is not a scheme pipeline.

(2)  Without limiting any other provision, the Rules may provide for such things as—

(a)  the collection, disclosure, verification, management and publication of information in relation to services that may be provided by a non-scheme pipeline; and

(b)  without limiting paragraph (a), requirements about the information that must be provided by service providers in relation to access (or potential access) to services provided by means of any non-scheme pipeline, including information about—

(i)  the terms and conditions on which the service provider is prepared to make a non-scheme pipeline available for use by others; and

(ii)  the procedures that the service provider will apply in determining a proposal for access to a non-scheme pipeline; and

(iii)  relevant prices, costs and methodologies associated with gaining access to (and using) a non-scheme pipeline and relevant or related services; and

(iv)  access contracts and arrangements used (or required to be used) by the service provider; and

(c)  without limiting paragraphs (a) and (b), information to be provided by a service provider in response to a request for access to services provided by means of a non-scheme pipeline; and

(d)  requirements to ensure that information is accurate and complete; and

(e)  requirements that relate to any matter that is contemplated by Chapter 4 Part 2 (as if a reference to a covered pipeline service provider in that Part were a reference to a service provider in relation to a non-scheme pipeline and subject to any modifications made by the Rules and subject to such other necessary alterations and modifications so as to apply those requirements in relation to non-scheme pipelines); and

(f)  the imposition or recovery of costs associated with any matter referred to in a preceding paragraph or otherwise associated with facilitating access (or potential access) to services provided by means of a non-scheme pipeline.

(3)  Nothing in subsection (2) limits any power to grant an exemption from complying with a provision, or part of a provision, of the Rules.

(4)  A reference in subsection (2) with respect to gaining access (or potential access) to services provided by means of a non-scheme pipeline includes a reference to services that will require an extension to, or expansion of the capacity of, a non-scheme pipeline.

s 83A: Ins 2017 No 23, sec 4.

83B Standard market timetable

(1)  Without limiting any other provision, the Rules may provide for a standard market timetable.

(2)  The standard market timetable may do the following—

(a)  specify the start time of a standard gas day;

(b)  provide for the times for nominations and renominations for the use of transportation services and deliveries or receipts of natural gas;

(c)  provide for the circumstances in which the standard market timetable must be used, which may include provision in relation to any of the following—

(i)  transportation services;

(ii)  the supply, production or storage of natural gas;

(iii)  the measurement and allocation of deliveries or receipts of natural gas;

(iv)  a regulated gas market, a gas trading exchange and a capacity auction.

(3)  Without limiting any other provision, the Rules may require a person of the following kind to use the standard market timetable in accordance with the Rules—

(a)  a transportation service provider;

(b)  a transportation facility user;

(c)  a person who measures, or determines the allocation of, deliveries or receipts of natural gas;

(d)  a producer;

(e)  a storage provider;

(f)  any other person of a kind prescribed by the Regulations for the purposes of this subsection.

s 83B: Ins 2018 No 23, sec 9.

83C Use of the standard market timetable

A person required by the Rules to use the standard market timetable must do so in accordance with the Rules.

s 83C: Ins 2018 No 23, sec 9.

83D False or misleading statements

A person of the following kind must not, in connection with the supply or possible supply of goods and services, make a false or misleading representation concerning the effect of a requirement for the person to use the standard market timetable on the price for the supply of the goods or services—

(a)  a transportation service provider;

(b)  a transportation facility user;

(c)  a person who measures, or determines the allocation of, deliveries or receipts of natural gas;

(d)  a producer;

(e)  a storage provider;

(f)  any other person of a kind prescribed by the Regulations for the purposes of section 83B(3)(f).

Maximum penalty—

(a)  in the case of a natural person—$3 400;

(b)  in the case of a body corporate—$17 000.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

s 83D: Ins 2018 No 23, sec 9. Am 2020 No 37, sec 55.

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 or a part of this Law as a law of this jurisdiction—see section 22(b).

s 87: Am 2021 No 3, sec 40.

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 Competition and Consumer Act 2010 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 Competition and Consumer Act 2010 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.

Part 6 Role of AEMO under National Gas Law

ch 2, pt 6: Ins 2009 No 30, sec 14.

Division 1 General

ch 2, pt 6, div 1: Ins 2009 No 30, sec 14.

91A AEMO’s statutory functions

(1)  AEMO has the following functions—

(a)  to operate and administer markets for natural gas in accordance with this Law, the Rules and the Procedures;

(b)  to promote the development, and improve the effectiveness of the operation and administration of, gas markets;

(ba)  conduct trials relating to the operation and administration of markets, or parts of markets, capacity auctions and transaction support arrangements for natural gas that are or will be governed by this Law, the Rules and the Procedures;

(c)  to register persons as Registered participants;

(d)  to exempt certain persons from being registered as Registered participants;

(e)  to facilitate retail customer transfer, metering and retail competition (including balancing, allocation and reconciliation of gas deliveries and withdrawals to and from subnetworks);

(f)  for an adoptive jurisdiction—the declared system functions or STTM functions (as the case requires);

(g)  to make, amend or revoke Procedures;

(ga)  the gas trading exchange functions;

(gb)  the capacity auction functions;

(gc)  to establish, operate and administer transaction support arrangements;

(h)  to operate and maintain the Natural Gas Services Bulletin Board;

(i)  to prepare, periodically review, revise, and publish the gas statement of opportunities;

(j)  to investigate breaches or possible breaches of the Procedures;

(k)  any functions conferred by jurisdictional gas legislation or an application Act;

(l)  any other functions conferred under this Law, the Rules or the Procedures.

Notes

1 AEMO has additional functions under its Constitution.

2 It should be noted that AEMO’s statutory functions include its functions under the National Electricity Law and the National Electricity Rules: see definition of statutory functions in section 2.

3 AEMO also has responsibilities, under Part 4 of the Australian Energy Market Commission Establishment Act 2004 of South Australia, related to administrative costs associated with the work of the Consumer Advocacy Panel.

4 AEMO has additional functions and powers under the National Energy Retail Law and the National Energy Retail Rules.

(2)  AEMO must, in carrying out functions referred to in this section have regard to the national gas objective.

s 91A: Ins 2009 No 30, sec 14. Am 2009 No 46, secs 8, 17; 2011 No 7, sec 59; 2013 No 54, sec 6; 2018 No 23, sec 10.

91AB AEMO’s power to carry out statutory functions

AEMO has the power to do all things necessary or convenient for or in connection with its statutory functions.

s 91AB: Ins 2009 No 30, sec 14.

91AC Delegation

(1)  Subject to subsection (2) and the Rules, AEMO may delegate any of its functions or powers under this Law, the Rules or the Procedures to—

(a)  a director, officer or employee of AEMO; or

(b)  a member of a committee established by AEMO.

(2)  However, a function or power classified by the Regulations as non-delegable cannot be delegated.

(3)  A delegate may, subject to AEMO’s directions, subdelegate a delegated function or power to a director, officer or employee of AEMO.

(4)  A delegate (or subdelegate) must comply with any direction given by AEMO that is relevant to the exercise of the delegated functions or powers.

s 91AC: Ins 2009 No 30, sec 14.

Division 2 AEMO’s declared system functions

Subdivision 1 Preliminary

ch 2, pt 6, div 2, sdiv 1 (ss 91B–91BB): Ins 2009 No 30, sec 14.

91B Application of this Division

(1)  This Division applies to, and in relation to, a participating jurisdiction if (and only if) the application Act of that jurisdiction, or an instrument made under that Act, declares that it does so apply.

(2)  In this Division—

(a)  a reference to a storage provider extends to a declared LNG storage provider; and

(b)  a reference to natural gas extends to liquefied natural gas stored by the declared LNG storage provider.

(3)  A rule or other form of subordinate legislation made for the purposes of this Division applies to and in relation to a participating jurisdiction if (and only if) this Division applies to and in relation to that jurisdiction.

ch 2, pt 6, div 2, sdiv 1 (ss 91B–91BB): Ins 2009 No 30, sec 14.

91BA AEMO’s declared system functions

(1)  AEMO’s declared system functions are as follows—

(a)  to determine security standards for the declared transmission system;

(b)  to control the operation and security of the declared transmission system;

(c)  to monitor and review the capacity of the declared transmission system and the trends in demand for the injection of gas into, and the withdrawal of gas from, that system;

(d)  to provide information and other services to facilitate decisions for economically efficient investment in markets for natural gas;

(e)  to coordinate the interaction of producers, storage providers and service providers for ensuring a safe, secure, reliable and efficient declared transmission system;

(f)  to operate and administer the declared wholesale gas market;

(g)  to make, amend or revoke Procedures governing the operation and administration of the declared wholesale gas market.

(2)  AEMO may trade in natural gas—

(a)  to the extent necessary or desirable for the safety, security or reliability of a declared transmission system; or

(b)  in an emergency.

(3)  AEMO may, subject to the Rules, suspend a declared wholesale gas market.

ch 2, pt 6, div 2, sdiv 1 (ss 91B–91BB): Ins 2009 No 30, sec 14.

91BB AEMO to account to relevant Minister for performance of declared system functions

(1)  AEMO must, at the written request of the Minister of an adoptive jurisdiction, provide information about the performance of its declared system functions with respect to that jurisdiction.

(2)  Protected information provided in response to a request under subsection (1) must be identified as such by AEMO at the time of providing the information.

(3)  No fee is to be charged for the provision of information under this section.

ch 2, pt 6, div 2, sdiv 1 (ss 91B–91BB): Ins 2009 No 30, sec 14.

Subdivision 2 Power of direction

ch 2, pt 6, div 2, sdiv 2: Ins 2009 No 30, sec 14.

91BC AEMO’s power of direction

(1)  AEMO may give written directions to a Registered participant (or an exempted participant) with respect to the declared transmission system or a declared distribution system for 1 or more of the following purposes—

(a)  to maintain and improve the reliability of the supply of natural gas;

(b)  to maintain and improve the security of the declared transmission system or a declared distribution system;

(c)  in the interests of public safety.

(2)  A direction under this section—

(a)  may relate to—

(i)  the operation or use of any equipment or installation; or

(ii)  the control of the flow of natural gas; or

(iii)  any other matter that may affect the safety, security or reliability of the declared transmission system or a declared distribution system; but

(b)  must be consistent with other legislation (including subordinate legislation) relevant to safety in the adoptive jurisdiction but may be contrary to a provision of the Rules or the Procedures.

(3)  A direction under this section may apply, adopt or incorporate (with or without modification) a relevant code of practice or standard (made in or outside Australia) as in force or existing when the direction is made or as in force or existing from time to time.

(4)  A prohibition imposed by a direction under this section may be either unconditional or subject to conditions stated in the direction.

(5)  A person to whom a direction under this section applies must comply with the direction.

Maximum penalty—

(a)  in the case of a natural person—$34 000;

(b)  in the case of a body corporate—$170 000.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

(6)  A person who fails to comply with a direction under this section within the period allowed in the direction commits a further offence for every day the non-compliance continues after the end of that period and is liable to a further penalty of $17 000 for each such offence.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

s 91BC: Ins 2009 No 30, sec 14. Am 2020 No 37, sec 56

91BD Protection from liability

A person incurs no civil monetary liability for damage, loss or injury resulting from an act or omission done or made in good faith and in compliance or purported compliance with a direction under this Subdivision.

s 91BD: Ins 2009 No 30, sec 14.

Subdivision 3 AEMO’s relationship with transmission system service providers and facility owners

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

91BE Service envelope agreement between AEMO and transmission pipeline service provider

(1)  The service provider for the declared transmission system must have an agreement (a service envelope agreement) with AEMO for the control, operation, safety, security and reliability of the declared transmission system.

(2)  Under the service envelope agreement, the service provider makes the declared transmission system available to AEMO (and, in doing so, provides a pipeline service).

(3)  The service envelope agreement must—

(a)  state the capacity of the declared transmission system to be available to AEMO (or how that capacity is to be calculated) at points of injection or withdrawal under the various operating conditions that are likely to prevail from time to time; and

(b)  deal with any other matters required by the Rules.

(4)  The AER may, on application by AEMO or a service provider for the declared transmission system, make a determination to resolve a dispute arising from an attempt to negotiate a service envelope agreement or an amendment to a service envelope agreement.

(5)  The AER may only make a determination under this section if—

(a)  the AER is satisfied that the applicant has made a reasonable, but unsuccessful, attempt to negotiate the agreement or amendment; and

(b)  the AER has given AEMO and all service providers for the declared transmission system that are to be affected by the determination an opportunity to make representations about the terms of the proposed determination.

(6)  A determination under this section may determine the terms and conditions of the service envelope agreement or the amendment.

(7)  If the AER determines the terms and conditions of a service envelope agreement or an amendment to a service envelope agreement, a service envelope agreement is taken to arise, or the service envelope agreement is taken to be amended, in accordance with the AER’s determination.

(8)  A determination under this section takes effect on a date specified in the determination.

(9)  A determination under this section must be published on AEMO’s website.

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

91BF Interconnection with facilities

(1)  A person must not connect a facility to the declared transmission system unless the person—

(a)  has AEMO’s permission to do so; or

(b)  is authorised to do so by an access determination.

(2)  A facility includes—

(a)  a pipeline;

(b)  a facility for storing natural gas, processable gas or LNG;

(c)  a gas fired electricity generator;

(d)  any other plant or equipment that could have a material impact on the operation of the declared transmission system.

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

91BG Operating agreement between AEMO and facility owner

(1)  AEMO may require, as a condition of permitting the connection of a facility to the declared transmission system, that the facility owner enter into an agreement (an operating agreement) with AEMO relating to the operation of that facility.

(2)  An operating agreement may deal (amongst other things) with the following—

(a)  the balancing, monitoring and regulation of gas flows between the declared transmission system and the facility;

(b)  the scheduling of gas flows;

(c)  the maintenance of a balancing account;

(d)  the provision of operational information;

(e)  operating pressures;

(f)  the safety, security and reliability of the declared transmission system and the facility;

(g)  emergency arrangements.

(3)  The AER may make a determination under this section (an operating agreement determination)—

(a)  on application by AEMO or a facility owner to resolve a dispute arising from an attempt to negotiate an operating agreement or an amendment to an operating agreement; or

(b)  in the course of proceedings to resolve an access dispute.

(4)  The AER may only make an operating agreement determination on an application under subsection (3)(a) if—

(a)  the AER is satisfied that the applicant has made a reasonable, but unsuccessful, attempt to negotiate the agreement or amendment; and

(b)  the AER has given AEMO and all service providers for the declared transmission system that are to be affected by the determination an opportunity to make representations about the terms of the proposed determination.

(5)  An operating agreement determination may determine the terms and conditions of the operating agreement or the amendment.

(6)  If the AER determines the terms and conditions of an operating agreement or an amendment to an operating agreement, an operating agreement is taken to arise, or the operating agreement is taken to be amended, in accordance with the AER’s determination.

(7)  An operating agreement determination takes effect on a date specified in the determination.

(8)  An operating agreement determination must be published on AEMO’s website.

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

91BH General principles governing determinations

(1)  A determination under this Division must be compatible with the proper performance of AEMO’s declared system functions.

(2)  In determining a dispute about a service envelope agreement, an operating agreement, or an amendment to a service envelope agreement or operating agreement, the AER must have regard to the allocation of powers and functions between AEMO and the relevant declared transmission system operator and to the Rules so far as they are relevant to—

(a)  the allocation of risk under such an agreement; or

(b)  the provision of services by means of, or in connection with, the declared transmission system; or

(c)  any other matter that has a bearing on the subject matter of the agreement.

(3)  A determination cannot alter the allocation of risk under an existing service envelope agreement or an existing operating agreement unless AEMO agrees.

(4)  The provisions applicable to the determination of an access dispute apply to a determination by the AER under this Division with the following changes—

(a)  section 186(1)(c), section 186(2) and sections 187 to 191 do not apply; and

(b)  any further changes necessary to adapt those provisions to the determination of a dispute under this Division.

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

Subdivision 4 Declared wholesale gas market

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

91BI Market participation

A person participates in a declared wholesale gas market in a registrable capacity if the person is—

(a)  a service provider for the declared transmission system or for a declared distribution system; or

(b)  a producer that injects natural gas into the declared transmission system; or

(c)  a storage provider whose storage facility is connected to the declared transmission system; or

(d)  a person who buys or sells natural gas in the declared wholesale gas market; or

(e)  a person classified by the Rules as a participant in the declared wholesale gas market.

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

91BJ Registration required for market participation

(1)  A person must not participate in a declared wholesale gas market in a registrable capacity unless registered (or exempted from registration) in accordance with the Rules.

(2)  A person may also be exempted from registration by or under jurisdictional gas legislation.

(3)  A person who participates in a declared wholesale gas market in 2 or more registrable capacities must be registered (or exempted from registration) in both or all those capacities.

(4)  For performing statutory functions, AEMO is not required to be registered.

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

91BK Certificates of registration etc

(1)  A certificate signed by an authorised officer certifying that a person named in the certificate is registered, or exempted from registration, is evidence of the registration or exemption.

(2)  For this section, an authorised officer is AEMO’s CEO or a person authorised by the CEO to issue certificates under this section.

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

Subdivision 5 Wholesale Market Procedures

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

91BL Wholesale Market Procedures

AEMO may, in accordance with the Rules, make Wholesale Market Procedures.

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

91BM Nature of Wholesale Market Procedures

(1)  Wholesale Market Procedures are a form of statutory instrument directed at the regulation of a declared wholesale gas market.

(2)  The Wholesale Market Procedures may deal with the following matters—

(a)  the matters specified by the Rules;

(b)  any other matter relevant to a declared wholesale gas market on which this Law or the Rules contemplate the making of Procedures.

(3)  The Wholesale Market Procedures—

(a)  may vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(b)  may confer functions or powers on, or leave any matter or thing to be decided by, AEMO; and

(c)  may confer rights or impose obligations on Registered participants, exempted participants, or other persons; and

(d)  may require a Registered participant or an exempted participant to give an indemnity against injury, damage or loss arising from the participant’s failure to comply with requirements imposed by the Procedures; and

(e)  may confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and

(f)  may confer power on AEMO to require a person on whom a right is conferred, or an obligation imposed, under the Procedures—

(i)  to comply with a guideline, standard or other document of an administrative nature; or

(ii)  to conduct, or submit to, a test designed by AEMO; and

(g)  may exempt, or confer a power of exemption, from the application of the Procedures or specified provisions of the Procedures; and

(h)  may contain provisions of a savings or transitional nature.

(4)  AEMO must not, without the consent of the MCE, make Wholesale Market Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.

(5)  The Wholesale Market Procedures cannot—

(a)  create an offence; or

(b)  provide for a criminal or civil penalty.

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

91BN Compliance with Wholesale Market Procedures

(1)  AEMO and each person to whom the Wholesale Market Procedures are applicable must comply with those Procedures.

(2)  If AEMO has reasonable grounds to suspect a breach of the Wholesale Market Procedures, it must, after making such inquiries and investigation as it considers appropriate, make a decision as to whether the breach is a material breach.

(3)  If AEMO decides the breach is material, AEMO—

(a)  must publish the decision and the reasons for it on its website; and

(b)  may direct the person suspected of the breach to rectify it or to take specified measures to ensure future compliance (or both); and

(c)  may refer the breach to the AER.

(4)  A direction by AEMO under subsection (3)(b) must—

(a)  specify the breach; and

(b)  specify the date by which the direction is to be complied with; and

(c)  be addressed to, and given to, the person suspected of the breach.

(5)  A person to whom a direction is given under subsection (3)(b) must comply with the direction.

(6)  AEMO must give a copy of its decision under subsection (2), its reasons for the decision and (if relevant) any direction under subsection (3)(b) to the AER.

(7)  If AEMO decides the breach is not material, AEMO must—

(a)  publish the decision and the reasons for it on its website; and

(b)  give a copy of the decision and the reasons for it to the AER.

Note—

AEMO may provide the AER with relevant information (including protected information) related to a suspected breach of the Procedures. (For disclosure of protected information, see section 91GC(2)(b).)

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

Subdivision 6 Ownership of gas in declared transmission system

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

91BO Ownership of gas

(1)  AEMO must establish rules (the ownership rules) for determining the ownership of gas in the declared transmission system and for resolving disputes about ownership.

(2)  The ownership rules are to form part of the Wholesale Market Procedures.

(3)  Subject to the ownership rules, gas injected into the declared transmission system remains the property of the person that injected it or, if that person was acting as an agent, that person’s principal.

(4)  A dispute about the ownership of gas in the declared transmission system is to be determined in accordance with the Rules.

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

91BP Title to gas

A Registered participant or an exempted participant must not inject gas into, or tender gas for injection into, the declared transmission system unless—

(a)  the participant has title to the gas, or authority to dispose of title to the gas; and

(b)  the gas will, at the point of injection into the declared transmission system, be free from any mortgage, charge or encumbrance.

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

Subdivision 7 Immunity

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

91BQ Immunity

(1)  A protected person incurs no civil monetary liability—

(a)  for failing to accept gas for injection into, or to make gas available for withdrawal from, the declared transmission system; or

(b)  for failing to make the declared transmission system available to accept the injection of gas into it, or the withdrawal of gas from it,

if the failure arises out of an accident or cause beyond the protected person’s control.

(2)  A protected person may, by written agreement with another person, limit or exclude the operation of subsection (1) in relation to the parties to the agreement.

(3)  In this section—

protected person means—

(a)  AEMO; or

(b)  a service provider for the whole or part of the declared transmission system.

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

91BR Immunity in dealing with an emergency

Neither AEMO nor an officer or employee of AEMO incurs any civil monetary liability for an act or omission directed at dealing with an emergency unless the act or omission is done or made in bad faith.

ch 2, pt 6, div 2, sdivs 3–7 (ss 91BE–91BR): Ins 2009 No 30, sec 14.

Division 2A Short term trading markets

Subdivision 1 Preliminary

ch 2, pt 6, div 2A, sdivs 1–3 (ss 91BRA–91BRJ): Ins 2009 No 46, sec 9.

91BRA Application of this Division

(1)  This Division applies to, and in relation to, a participating jurisdiction if (and only if) the application Act of that jurisdiction, or an instrument made under that Act, declares that it does so apply.

(2)  A rule or other form of subordinate legislation made for the purposes of this Division applies to and in relation to a participating jurisdiction if (and only if) this Division applies to and in relation to that jurisdiction.

ch 2, pt 6, div 2A, sdivs 1–3 (ss 91BRA–91BRJ): Ins 2009 No 46, sec 9.

91BRB AEMO’s STTM functions

(1)  AEMO’s STTM functions are as follows—

(a)  to operate and administer a short term trading market;

(b)  to make, amend or revoke Procedures governing the operation and administration of a short term trading market.

(2)  AEMO may trade in natural gas to the extent necessary or desirable to provide market operator services.

(3)  AEMO may, subject to the Rules, suspend a short term trading market.

ch 2, pt 6, div 2A, sdivs 1–3 (ss 91BRA–91BRJ): Ins 2009 No 46, sec 9.

Subdivision 2 Short term trading markets

ch 2, pt 6, div 2A, sdivs 1–3 (ss 91BRA–91BRJ): Ins 2009 No 46, sec 9.

91BRC Market participation

A person participates in a short term trading market in a registrable capacity if the person is—

(a)  a person who supplies natural gas to an STTM hub; or

(b)  a person who withdraws natural gas from an STTM hub; or

(c)  a person classified by the Rules as a participant in a short term trading market.

ch 2, pt 6, div 2A, sdivs 1–3 (ss 91BRA–91BRJ): Ins 2009 No 46, sec 9.

91BRD Registration required for market participation

(1)  A person must not participate in a short term trading market in a registrable capacity unless registered (or exempted from registration) in accordance with the Rules.

(2)  A person who participates in a short term trading market in 2 or more registrable capacities must be registered (or exempted from registration) in both or all those capacities.

(3)  For performing statutory functions, AEMO is not required to be registered.

ch 2, pt 6, div 2A, sdivs 1–3 (ss 91BRA–91BRJ): Ins 2009 No 46, sec 9.

91BRE Certificates of registration etc

(1)  A certificate signed by an authorised officer certifying that a person named in the certificate is registered, or exempted from registration, is evidence of the registration or exemption.

(2)  For this section, an authorised officer is AEMO’s CEO or a person authorised by the CEO to issue certificates under this section.

ch 2, pt 6, div 2A, sdivs 1–3 (ss 91BRA–91BRJ): Ins 2009 No 46, sec 9.

91BRF Title to gas

An STTM trading participant must not supply natural gas to an STTM hub unless—

(a)  the participant has title to the gas, or authority to dispose of title to the gas; and

(b)  the gas will, at the point of supply, be free from any mortgage, charge or encumbrance.

ch 2, pt 6, div 2A, sdivs 1–3 (ss 91BRA–91BRJ): Ins 2009 No 46, sec 9.

91BRG Gas supplied to STTM hub must meet quality specifications specified in the Rules

An STTM trading participant must not supply natural gas to an STTM hub that does not comply with the gas quality specifications specified in the Rules for that STTM hub.

ch 2, pt 6, div 2A, sdivs 1–3 (ss 91BRA–91BRJ): Ins 2009 No 46, sec 9.

Subdivision 3 STTM Procedures

ch 2, pt 6, div 2A, sdivs 1–3 (ss 91BRA–91BRJ): Ins 2009 No 46, sec 9.

91BRH STTM Procedures

AEMO may, in accordance with the Rules, make STTM Procedures.

ch 2, pt 6, div 2A, sdivs 1–3 (ss 91BRA–91BRJ): Ins 2009 No 46, sec 9.

91BRI Nature of STTM Procedures

(1)  STTM Procedures are a form of statutory instrument directed at the regulation of a short term trading market.

(2)  The STTM Procedures may deal with the following matters—

(a)  the matters specified by the Rules;

(b)  any other matter relevant to a short term trading market on which this Law or the Rules contemplate the making of Procedures.

(3)  The STTM Procedures—

(a)  may vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(b)  may confer functions or powers on, or leave any matter or thing to be decided by, AEMO; and

(c)  may confer rights or impose obligations on STTM trading participants, exempted participants, or other persons; and

(d)  may confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and

(e)  may confer power on AEMO to require a person on whom a right is conferred, or an obligation imposed, under the Procedures—

(i)  to comply with a guideline, standard or other document of an administrative nature; or

(ii)  to conduct, or submit to, a test designed by AEMO; and

(f)  may exempt, or confer a power of exemption, from the application of the Procedures or specified provisions of the Procedures; and

(g)  may contain provisions of a savings or transitional nature.

(4)  AEMO must not, without the consent of the MCE, make STTM Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.

(5)  The STTM Procedures cannot—

(a)  create an offence; or

(b)  provide for a criminal or civil penalty.

ch 2, pt 6, div 2A, sdivs 1–3 (ss 91BRA–91BRJ): Ins 2009 No 46, sec 9.

91BRJ Compliance with STTM Procedures

(1)  AEMO and each person to whom the STTM Procedures are applicable must comply with those Procedures.

(2)  If AEMO has reasonable grounds to suspect a breach of the STTM Procedures, it must, after making such inquiries and investigation as it considers appropriate, make a decision as to whether the breach is a material breach.

(3)  If AEMO decides the breach is material, AEMO—

(a)  must publish the decision and the reasons for it on its website; and

(b)  may direct the person suspected of the breach to rectify it or to take specified measures to ensure future compliance (or both); and

(c)  may refer the breach to the AER.

(4)  A direction by AEMO under subsection (3)(b) must—

(a)  specify the breach; and

(b)  specify the date by which the direction is to be complied with; and

(c)  be addressed to, and given to, the person suspected of the breach.

(5)  A person to whom a direction is given under subsection (3)(b) must comply with the direction.

(6)  AEMO must give a copy of its decision under subsection (2), its reasons for the decision and (if relevant) any direction under subsection (3)(b) to the AER.

(7)  If AEMO decides the breach is not material, AEMO must—

(a)  publish the decision and the reasons for it on its website; and

(b)  give a copy of the decision and the reasons for it to the AER.

Note—

AEMO may provide the AER with relevant information (including protected information) related to a suspected breach of the Procedures. (For disclosure of protected information, see section 91GC(2)(b).)

ch 2, pt 6, div 2A, sdivs 1–3 (ss 91BRA–91BRJ): Ins 2009 No 46, sec 9.

Division 2B Gas trading exchanges

ch 2, pt 6, div 2B (ss 91BRK, 91BRL): Ins 2013 No 54, sec 7.

91BRK AEMO’s gas trading exchange functions

(1)  AEMO’s gas trading exchange functions are as follows—

(a)  to establish, operate and administer 1 or more gas trading exchanges;

(b)  to appoint, in accordance with the Rules, another person to operate a gas trading exchange;

(c)  in relation to a gas trading exchange, to make and administer a gas trading exchange agreement for the purposes of the exchange.

(2)  AEMO may trade in natural gas to the extent necessary or desirable for the efficient operation of a gas trading exchange after taking into account any provision made by or under the gas trading exchange agreement that applies in relation to the exchange.

(3)  AEMO may, subject to the Rules and the relevant gas trading exchange agreement, suspend trading on a gas trading exchange.

ch 2, pt 6, div 2B (ss 91BRK, 91BRL): Ins 2013 No 54, sec 7.

91BRL Gas trading exchange not to constitute a regulated gas market

A gas trading exchange is not a regulated gas market.

ch 2, pt 6, div 2B (ss 91BRK, 91BRL): Ins 2013 No 54, sec 7.

Division 2C Capacity auctions for transportation services

ch 2, pt 6, divs 2C–2E (ss 91BRM–91BRT): Ins 2018 No 23, sec 11.

91BRM AEMO’s capacity auction functions

(1)  AEMO’s capacity auction functions are as follows—

(a)  to establish, operate and administer 1 or more capacity auctions;

(b)  in relation to a capacity auction, to make and administer capacity auction agreements;

(c)  to make, amend or revoke Procedures governing the operation and administration of a capacity auction.

(2)  AEMO may, subject to the Rules and Procedures, suspend a capacity auction.

ch 2, pt 6, divs 2C–2E (ss 91BRM–91BRT): Ins 2018 No 23, sec 11.

91BRN Capacity auctions not to constitute a regulated gas market

A capacity auction is not a regulated gas market.

ch 2, pt 6, divs 2C–2E (ss 91BRM–91BRT): Ins 2018 No 23, sec 11.

Division 2D Capacity Transfer and Auction Procedures

ch 2, pt 6, divs 2C–2E (ss 91BRM–91BRT): Ins 2018 No 23, sec 11.

91BRO Making of Capacity Transfer and Auction Procedures

AEMO may, in accordance with the Rules, make Capacity Transfer and Auction Procedures.

ch 2, pt 6, divs 2C–2E (ss 91BRM–91BRT): Ins 2018 No 23, sec 11.

91BRP Nature of Capacity Transfer and Auction Procedures

(1)  Capacity Transfer and Auction Procedures are a form of statutory instrument directed at—

(a)  the effective operation and administration of a capacity auction in accordance with the Rules; and

(b)  the effective operation and administration of transaction support arrangements.

(2)  The Capacity Transfer and Auction Procedures may deal with the following matters—

(a)  the matters specified by the Rules;

(b)  any other matter relevant to a capacity auction, a gas trading exchange or transaction support arrangements on which this Law or the Rules contemplate the making of Procedures.

(3)  The Capacity Transfer and Auction Procedures—

(a)  may vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(b)  may confer functions or powers on, or leave any matter or thing to be decided by, AEMO; and

(c)  may confer rights or impose obligations on a transportation service provider, a transportation facility user, a capacity auction participant or a gas trading exchange member; and

(d)  may confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and

(e)  may confer power on AEMO to require a person on whom a right is conferred, or an obligation imposed, under the Procedures—

(i)  to comply with a guideline, standard or other document of an administrative nature; or

(ii)  to conduct, or submit to, a test designed by AEMO under the Procedures; and

(f)  may exempt, or confer a power of exemption, from the application of the Procedures or specified provisions of the Procedures; and

(g)  may contain provisions of a savings or transitional nature.

(4)  AEMO must not, without the consent of the MCE, make Capacity Transfer and Auction Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.

(5)  The Capacity Transfer and Auction Procedures cannot—

(a)  create an offence; or

(b)  provide for a criminal or civil penalty.

ch 2, pt 6, divs 2C–2E (ss 91BRM–91BRT): Ins 2018 No 23, sec 11.

91BRQ Compliance with Capacity Transfer and Auction Procedures

(1)  AEMO and each person to whom the Capacity Transfer and Auction Procedures are applicable must comply with those Procedures.

(2)  If AEMO has reasonable grounds to suspect a breach of the Capacity Transfer and Auction Procedures, it must, after making such inquiries and investigation as it considers appropriate, make a decision as to whether the breach is a material breach.

(3)  If AEMO decides the breach is material, AEMO—

(a)  must publish the decision and the reasons for it on its website; and

(b)  may direct the person suspected of the breach to rectify it or to take specified measures to ensure future compliance (or both); and

(c)  may refer the breach to the AER.

(4)  A direction by AEMO under subsection (3)(b) must—

(a)  specify the breach; and

(b)  specify the date by which the direction is to be complied with; and

(c)  be addressed to, and given to, the person suspected of the breach.

(5)  A person to whom a direction is given under subsection (3)(b) must comply with the direction.

(6)  AEMO must give a copy of its decision under subsection (2), its reasons for the decision and (if relevant) any direction under subsection (3)(b) to the AER.

(7)  If AEMO decides the breach is not material, AEMO must give a copy of the decision and the reasons for it to the AER.

Note—

AEMO may provide the AER with relevant information (including protected information) related to a suspected breach of the Procedures. (For disclosure of protected information, see section 91GC(2)(b) and 91GG(1)(b).)

ch 2, pt 6, divs 2C–2E (ss 91BRM–91BRT): Ins 2018 No 23, sec 11.

Division 2E Registration in relation to transportation facility

ch 2, pt 6, divs 2C–2E (ss 91BRM–91BRT): Ins 2018 No 23, sec 11.

91BRR Registration obligation

(1)  A transportation service provider for a transportation facility must, in accordance with the Rules, register—

(a)  that transportation facility; and

(b)  as a transportation service provider for that transportation facility.

(2)  Subsection (1) does not apply if—

(a)  the transportation facility or the provider is exempted from registration under that subsection by or under the Rules; or

(b)  the transportation facility or the provider is exempted by the AER from registration under that subsection by or under this Law or the Rules.

(3)  For performing statutory functions, AEMO is not required to be registered.

ch 2, pt 6, divs 2C–2E (ss 91BRM–91BRT): Ins 2018 No 23, sec 11.

91BRS Exemptions from obligation to register

(1)  A transportation service provider (or prospective transportation service provider) for a transportation facility may request the AER to exempt the transportation service provider (or prospective transportation service provider on becoming the transportation service provider for the transportation facility) from the obligation to register—

(a)  the transportation facility under section 91BRR(1)(a); or

(b)  as a transportation service provider for the transportation facility under section 91BRR(1)(b).

(2)  A request under subsection (1) must be made in accordance with the Rules.

(3)  On receipt of a request under subsection (1), the AER may, subject to the Rules, grant the exemption.

(4)  An exemption granted under subsection (3) may be subject to such terms and conditions as may be required by the Rules or as the AER considers appropriate in accordance with the Rules.

(5)  In this section—

prospective transportation service provider for a transportation facility means a person who intends to own, control or operate the transportation facility.

ch 2, pt 6, divs 2C–2E (ss 91BRM–91BRT): Ins 2018 No 23, sec 11.

91BRT Certificates of registration and exemption from registration

(1)  A certificate signed by an authorised officer certifying that a transportation facility described, or a transportation service provider named, in the certificate is registered, or exempt from registration, is evidence of the registration or exemption.

(2)  In this section, an authorised officer is—

(a)  in relation to registration, AEMO’s CEO or a person authorised by the CEO to issue certificates under this section; or

(b)  in relation to exemption, the AER’s CEO or a person authorised by the CEO to issue certificates under this section.

ch 2, pt 6, divs 2C–2E (ss 91BRM–91BRT): Ins 2018 No 23, sec 11.

Division 3 Information etc to be provided to Ministers

ch 2, pt 6, div 3: Ins 2009 No 30, sec 14.

91C Ministerial request

(1)  The MCE or a Minister of a participating jurisdiction may ask AEMO for information, a report or other services.

(2)  The request may be accompanied by a written statement of the purpose for which the information, report or other services are sought.

s 91C: Ins 2009 No 30, sec 14.

91CA Compliance with request

(1)  AEMO must comply with a request under this Division.

(2)  However, if compliance with the request would involve disclosure of protected information, AEMO may only provide the information if its disclosure is authorised under this Law or the Rules.

Note—

The Minister of an adoptive jurisdiction may be entitled to certain protected information under section 91BB.

s 91CA: Ins 2009 No 30, sec 14.

91CB Quarterly report

(1)  AEMO must report to the MCE in each quarter on its work under this Division for the previous quarter.

(2)  The report must—

(a)  summarise each request received in the relevant quarter; and

(b)  state by whom each request was made.

s 91CB: Ins 2009 No 30, sec 14.

Division 4 Gas statement of opportunities

ch 2, pt 6, div 4: Ins 2009 No 30, sec 14.

91D Object and content of gas statement of opportunities

(1)  The purpose of the gas statement of opportunities is to provide information to assist Registered participants and other persons in making informed decisions about investment in the natural gas industry.

(2)  The gas statement of opportunities—

(a)  must contain an assessment of medium to long term demand (including export demand) for natural gas and for pipeline services; and

(b)  must contain an assessment of supply and pipeline capacity to meet existing and foreseeable demand for natural gas and pipeline services; and

(c)  must include forecasts of the outlook for the natural gas industry over a 20 year planning horizon; and

(d)  must point out likely long term shortfalls in natural gas reserves, and production or transmission constraints; and

(e)  must contain any other information required by the Rules.

s 91D: Ins 2009 No 30, sec 14. Am 2022 No 3, sec 24.

91DA AEMO’s obligation in regard to gas statement of opportunities

(1)  AEMO must prepare, periodically review, revise, and publish the gas statement of opportunities in accordance with the Rules.

(2)  AEMO also has the following functions in relation to the gas statement of opportunities—

(a)  to collect and collate GSOO information;

(b)  to collect and collate other information in relation to the natural gas industry;

(c)  to derive from information of the type mentioned in paragraph (a) or (b) information for inclusion in the gas statement of opportunities.

s 91DA: Ins 2009 No 30, sec 14. Am 2022 No 3, sec 25.

91DB Information for the gas statement of opportunities

(1)  A person who has possession or control of information in relation to the natural gas industry must give the information to AEMO for use by AEMO in the preparation, review, revision or publication of the gas statement of opportunities if the person is required to do so under the Rules.

(2)  The information must be given to AEMO in accordance with the Rules.

(3)  Subsection (1) does not apply if the person is exempt under the Rules from giving the information.

(4)  Subsection (1) does not require—

(a)  a person to disclose information that is the subject of legal professional privilege; or

(b)  a natural person to disclose information that would incriminate the person or make the person liable to a criminal penalty under the law of an Australian jurisdiction (whether or not the jurisdiction is a participating jurisdiction).

s 91DB: Ins 2022 No 3, sec 26.

91DC Person cannot rely on duty of confidence to avoid compliance with obligation

A person must not refuse to comply with the requirement in section 91DB on the ground of any duty of confidence.

s 91DC: Ins 2022 No 3, sec 26.

91DD Giving AEMO false or misleading information

A person must not give GSOO information to AEMO that the person knows is false or misleading in a material particular.

s 91DD: Ins 2022 No 3, sec 26.

91DE Immunity of persons giving GSOO information to AEMO

(1)  A person who gives GSOO information to AEMO 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.

s 91DE: Ins 2022 No 3, sec 26.

91DF GSOO Procedures

AEMO may, in accordance with the Rules, make GSOO Procedures.

s 91DF: Ins 2022 No 3, sec 26.

91DG Nature of GSOO Procedures

(1)  GSOO Procedures are a form of statutory instrument directed at the collection of information for the gas statement of opportunities.

(2)  The GSOO Procedures may deal with the following matters—

(a)  the matters specified by the Rules;

(b)  any other matter relevant to the gas statement of opportunities on which this Law or the Rules contemplate the making of Procedures.

(3)  The GSOO Procedures—

(a)  may vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(b)  may confer functions or powers on, or leave any matter or thing to be decided by, AEMO; and

(c)  may confer rights or impose obligations; and

(d)  may confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and

(e)  may confer power on AEMO to require a person to whom a right is conferred, or an obligation is imposed, under the Procedures—

(i)  to comply with a guideline, standard or other document of an administrative nature; or

(ii)  to conduct, or submit to, a test designated by AEMO under the Procedures; and

(f)  may exempt, or confer a power of exemption, from the application of the Procedures or specified provisions of the Procedures; and

(g)  may contain provisions of a savings or transitional nature.

(4)  AEMO must not, without the consent of the MCE, make Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.

(5)  The GSOO Procedures cannot—

(a)  create an offence; or

(b)  provide for a criminal or civil penalty.

s 91DG: Ins 2022 No 3, sec 26.

91DH Compliance with GSOO Procedures

(1)  AEMO and each person to whom the GSOO Procedures are applicable must comply with the Procedures.

(2)  If AEMO has reason to believe that a person is not complying with the GSOO Procedures, it may, by notice in writing, direct the person to comply with the relevant provisions of the GSOO Procedures.

(3)  A person to whom a direction is addressed under subsection (2) must comply with the direction.

s 91DH: Ins 2022 No 3, sec 26.

Division 5 Fees and charges

ch 2, pt 6, div 5: Ins 2009 No 30, sec 14.

91E AEMO fees and charges

(1)  AEMO may—

(a)  determine fees and charges for services provided by it under this Law, the Rules or the Procedures; and

(b)  charge for, and recover, the fees and charges in accordance with this Law and the Rules.

(2)  The fees and charges for a service are to be determined on a non-profit basis that—

(a)  provides for full recovery of the costs of providing the service; and

(b)  does not amount to taxation; and

(c)  is consistent with the requirements of the Rules.

(3)  Exact equivalence is not required between the costs of providing a service and the revenue derived from providing the service in a particular accounting period if there are reasonable grounds to believe that costs will over time approximate revenue.

Note—

This section does not prevent AEMO from generating a profit from the performance of non-statutory functions (such as the provision of consultancy services). Any such profit would not, however, be available for distribution to members.

(4)  Despite the above provisions, a component of AEMO’s fees and charges may, if the Rules so provide, relate to costs that are not specifically referable to services provided under this Law, the Rules or the Procedures.

Note—

As a general rule, AEMO’s expenditures will be allocated to services provided to the electricity industry or the gas industry. Subsection (4) deals with costs that cannot be wholly attributed to either industry.

(5)  This section does not limit AEMO’s power to determine, charge for and recover fees and charges for carrying out functions conferred by jurisdictional legislation.

(6)  In this section—

service includes the performance of statutory functions.

s 91E: Ins 2009 No 30, sec 14.

Division 6 Information gathering

ch 2, pt 6, div 6: Ins 2009 No 30, sec 14.

Subdivision 1 Market information orders and market information notices

ch 2, pt 6, div 6, sdiv 1, hdg: Ins 2009 No 46, sec 10.

91F Information gathering powers

(1)  If AEMO considers it reasonably necessary to do so for the exercise of a relevant function, it may—

(a)  make a general market information order requiring information from persons of a class specified in the order; or

(b)  serve a market information notice requiring information from the person to whom the notice is addressed.

(2)  A relevant function is—

(a)  the preparation, review, revision or publication of the gas statement of opportunities; or

(b)  a declared system function; or

(c)  any other statutory function for which this Law authorises AEMO to gather information by means of a market information instrument.

(3)  A general market information order or a market information notice may only be addressed to persons of a class declared by the Regulations to be a class to which such an order or notice may be addressed.

(4)  In considering whether to make a general market information order or to issue a market information notice and, if so, the terms of the order or notice, AEMO must have regard to the reasonable costs of efficient compliance.

(5)  A market information instrument—

(a)  must specify—

(i)  the information, or categories of information, that is to be provided to AEMO; and

(ii)  the time by which the information is required; and

(iii)  in the case of a general market information order—the class of persons to which the order applies; and

(iv)  in the case of a market information notice—the name of the person to whom the notice is addressed; and

(b)  may specify the manner and form in which information must be provided.

(6)  Without limiting subsection (5), a market information instrument—

(a)  may require information of any of the following kinds—

(i)  historic, current and forecast information;

(ii)  information that may be derived from other information in the possession or control of the person required to provide the information; and

(b)  may require the provision of information on an annual or other periodic basis.

s 91F: Ins 2009 No 30, sec 14.

91FA Making and publication of general market information order

(1)  Before making a final decision to make a general market information order, AEMO must—

(a)  invite persons of the class to which the proposed order is addressed to make representations about the terms of the proposed order within a period (at least 20 business days) specified in the invitation; and

(b)  consider any written representations made in response to the invitation within the specified period.

(2)  A general market information order must be published on AEMO’s website as soon as practicable after it is made.

s 91FA: Ins 2009 No 30, sec 14. Am 2021 No 3, sec 41.

91FB Service of market information notice

(1)  Before serving a market information notice, AEMO must—

(a)  give the person on whom AEMO intends to serve the market information notice (the respondent) written notice of its intention to do so; and

(b)  give the respondent a draft of the market information notice.

(2)  A notice under subsection (1) must—

(a)  invite the respondent to make written representations to AEMO about whether AEMO should serve the market information notice; and

(b)  specify the period (at least 20 business days) allowed for making the representations.

(3)  AEMO must consider written representations made in response to the invitation within the specified period before making a final decision to serve the market information notice.

ss 91FB–91FD: Ins 2009 No 30, sec 14.

91FC Compliance with market information instrument

(1)  A market information instrument takes effect—

(a)  in the case of a general market information order—on publication on AEMO’s website; or

(b)  in the case of a market information notice—on service of the notice on the person to whom it is addressed.

(2)  AEMO may, by written notice, exempt a person from compliance with a general market information order—

(a)  unconditionally or on specified conditions; and

(b)  wholly or to a specified extent.

(3)  Subject to any exemption, a person who is a member of a class to which a general market information order applies must comply with the order.

(4)  A person on whom a market information notice is served must comply with the notice.

(5)  The duty to comply with a market information instrument prevails over a duty of confidence.

(6)  However—

(a)  a person cannot be required by a market information instrument to disclose information that is the subject of legal professional privilege; and

(b)  a natural person cannot be required by a market information instrument to disclose information that would incriminate the person or make the person liable to a criminal penalty under the law of an Australian jurisdiction (whether or not the jurisdiction is a participating jurisdiction).

(7)  A person incurs no liability, by complying with a market information instrument, for breach of contract, breach of confidence or any other civil wrong.

ss 91FB–91FD: Ins 2009 No 30, sec 14.

91FD Use of information

Subject to this Law, the Rules, the Regulations and the Procedures, AEMO may use information obtained by market information instrument or in any other way for any purpose connected with the exercise of any of its statutory functions.

ss 91FB–91FD: Ins 2009 No 30, sec 14.

91FE Providing false or misleading information

A person must not, in purported compliance with a market information instrument, provide information to AEMO that the person knows is false or misleading in a material particular.

Maximum penalty—

(a)  in the case of a natural person—$6 300;

(b)  in the case of a body corporate—$31 500.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

s 91FE: Ins 2009 No 30, sec 14. Am 2020 No 37, sec 57.

Subdivision 2 STTM information

ch 2, pt 6, div 6, sdiv 2: Ins 2009 No 46, sec 11.

91FEA Obligation to give information to AEMO

(1)  A person of the following kind who has possession or control of information that relates to and is necessary for the operation and administration of a short term trading market by AEMO must give AEMO the information for use by AEMO for the operation and administration of that short term trading market if the person is required to do so under the Procedures or Rules—

(a)  an STTM trading participant;

(b)  a service provider;

(c)  a storage provider;

(d)  a producer;

(e)  another person who is prescribed by the Regulations for the purposes of this paragraph.

(2)  The information must be given to AEMO in accordance with the Procedures or Rules.

(3)  Subsection (1) does not apply if the person is exempt under the Rules from giving the information.

(4)  However, subsection (1) does not require—

(a)  a person to disclose information that is the subject of legal professional privilege; or

(b)  a natural person to disclose information that would incriminate the person or make the person liable to a criminal penalty under the law of an Australian jurisdiction (whether or not the jurisdiction is a participating jurisdiction).

s 91FEA: Ins 2009 No 46, sec 11.

91FEB Person cannot rely on duty of confidence to avoid compliance with obligation

A person must not refuse to comply with the requirement in section 91FEA(1) on the ground of any duty of confidence.

s 91FEB: Ins 2009 No 46, sec 11.

91FEC Giving to AEMO false and misleading information

A person must not give STTM information to AEMO that the person knows is false or misleading in a material particular.

Maximum penalty—

(a)  in the case of a natural person—$6 300;

(b)  in the case of a body corporate—$31 500.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

s 91FEC: Ins 2009 No 46, sec 11. Am 2020 No 37, sec 58.

91FED Immunity of persons giving information to AEMO

(1)  A person who gives STTM information to AEMO does not incur any civil monetary liability for an act or omission in preparing or 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.

s 91FED: Ins 2009 No 46, sec 11.

Subdivision 3 Capacity auction information

ch 2, pt 6, div 6, sdiv 3: Ins 2018 No 23, sec 12.

91FEE Obligation to give information to AEMO

(1)  A person of the following kind who has possession or control of information that relates to and is necessary for the operation and administration of a capacity auction by AEMO or the performance of any other capacity auction function of AEMO must give AEMO the information for use by AEMO for the operation and administration of that capacity auction or performance of that other function if the person is required to do so under the Procedures or Rules—

(a)  a capacity auction participant;

(b)  a transportation service provider;

(c)  a transportation facility user;

(d)  another person who is prescribed by the Regulations for the purposes of this subsection.

(2)  The information must be given to AEMO in accordance with the Procedures or Rules.

(3)  Subsection (1) does not apply if the person is exempt under the Rules from giving the information.

(4)  However, subsection (1) does not require—

(a)  a person to disclose information that is the subject of legal professional privilege;

(b)  a natural person to disclose information that would incriminate the person or make the person liable to a criminal penalty under the law of an Australian jurisdiction (whether or not the jurisdiction is a participating jurisdiction).

s 91FEE: Ins 2018 No 23, sec 12.

91FEF Person cannot rely on duty of confidence to avoid compliance with obligation

A person must not refuse to comply with the requirement in section 91FEE(1) on the ground of any duty of confidence.

s 91FEF: Ins 2018 No 23, sec 12.

91FEG Giving to AEMO false and misleading information

A person must not give capacity auction information to AEMO that the person knows is false or misleading in a material particular.

Maximum penalty—

(a)  in the case of a natural person—$6 300;

(b)  in the case of a body corporate—$31 500.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

s 91FEG: Ins 2018 No 23, sec 12. Am 2020 No 37, sec 59.

91FEH Immunity of persons giving information to AEMO

(1)  A person who gives capacity auction information to AEMO does not incur any civil monetary liability for an act or omission in preparing or 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.

s 91FEH: Ins 2018 No 23, sec 12.

Subdivision 4 Information used for a capacity auction

ch 2, pt 6, div 6, sdiv 4: Ins 2018 No 23, sec 12.

91FEI Giving false and misleading information used for capacity auctions

A person must not give to a transportation service provider information that relates to and is necessary for the operation and administration of a capacity auction by AEMO or the performance of any other capacity auction function of AEMO that the person knows is false or misleading in a material particular.

Maximum penalty—

(a)  in the case of a natural person—$3 400;

(b)  in the case of a body corporate—$17 000.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

s 91FEI: Ins 2018 No 23, sec 12. Am 2020 No 37, sec 60.

Division 7 Protected information

ch 2, pt 6, div 7: Ins 2009 No 30, sec 14.

Subdivision 1 AEMO’s obligation to protect information

ch 2, pt 6, div 7, sdiv 1 (s 91G): Ins 2009 No 30, sec 14.

91G Protected information

(1)  AEMO must take all reasonable measures to protect from unauthorised use or disclosure information (protected information)—

(a)  given to it in confidence; or

(b)  given to it in connection with the performance of its statutory functions and classified under the Rules, the Procedures or the Regulations as confidential information.

(2)  AEMO makes unauthorised use of protected information if (and only if) it uses the information contrary to this Law, the Rules, the Procedures or the Regulations.

Note—

Section 91FD authorises AEMO (subject to the Law, the Rules, the Procedures and the Regulations) to use information (whether obtained by market information instrument or in any other way) for any purpose connected with the exercise of any of its statutory functions.

(3)  AEMO makes an unauthorised disclosure of protected information if the disclosure is not authorised under this Law, the Rules, the Procedures or the Regulations.

ch 2, pt 6, div 7, sdiv 1 (s 91G): Ins 2009 No 30, sec 14.

Subdivision 2 Disclosure of protected information held by AEMO

ch 2, pt 6, div 7, sdiv 2: Ins 2009 No 30, sec 14.

91GA Authorised disclosure of protected information

(1)  AEMO is authorised to disclose protected information in accordance with this Subdivision.

(2)  AEMO may also be authorised to disclose protected information by the Rules, the Procedures or the Regulations.

s 91GA: Ins 2009 No 30, sec 14.

91GB Disclosure with prior written consent

AEMO is authorised to disclose protected information if it has the written consent of the person from whom the information was obtained.

s 91GB: Ins 2009 No 30, sec 14.

91GC Disclosure required or permitted by law etc

(1)  The disclosure of protected information as required or permitted by a law of the Commonwealth, a State or Territory is authorised.

(2)  The disclosure of protected information to any of the following is authorised—

(a)  the Australian Competition and Consumer Commission;

(b)  the Australian Energy Regulator;

(c)  the Australian Energy Market Commission;

(ca)  the Energy Security Board;

(d)  the Economic Regulation Authority of Western Australia;

(e)  a jurisdictional regulator;

(f)  the National Competition Council;

(g)  if the information is reasonably required by an energy ombudsman to resolve a dispute between a Registered participant and a retail customer but the information is not end use consumer information—the energy ombudsman;

(h)  a prescribed body;

(i)  any staff or consultant assisting a body mentioned above in performing its functions or exercising its powers.

(3)  A person or body to whom protected information is disclosed under subsection (2) 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.

(4)  AEMO may impose conditions to be complied with in relation to protected information disclosed under subsection (2).

(5)  The disclosure of protected information by a person in the ordinary course of carrying out functions as an officer or employee of, or consultant to, AEMO or a body mentioned in subsection (2) is authorised.

s 91GC: Ins 2009 No 30, sec 14. Am 2011 No 7, sec 60; 2018 No 12, sec 22.

91GD Disclosure for purposes of court and tribunal proceedings

AEMO is authorised to disclose protected information for the purposes of—

(a)  civil or criminal proceedings; or

(b)  a proceeding before the Tribunal or a tribunal established by or under a law of this jurisdiction or another participating jurisdiction.

ss 91GD–91GF: Ins 2009 No 30, sec 14.

91GE Disclosure of document with omission of protected information

(1)  If a document contains both protected information and other information, AEMO may disclose the document with the omission of the protected information.

(2)  AEMO must include a note at the place in the document from which the protected information is omitted to the effect that protected information has been omitted from the document.

ss 91GD–91GF: Ins 2009 No 30, sec 14.

91GF Disclosure of non-identifying information

AEMO is authorised to disclose protected information if—

(a)  it does not disclose any elements of the information that could lead to the identification of the person to whom the information relates; or

(b)  the manner in which it discloses the information does not identify the person to whom that information relates.

Example—

Protected information may be combined or arranged with other information to prevent the identification of the person to whom the protected information relates.

ss 91GD–91GF: Ins 2009 No 30, sec 14.

91GFA Disclosure of information in an aggregated form

AEMO is authorised to disclose information given to it in confidence, in compliance with this Law or the Rules or voluntarily, if the information has been combined or arranged with other information so that it does not reveal any confidential aspects of the information.

s 91GFA: Ins 2016 No 55, sec 15.

91GG Disclosure of protected information for safety, proper operation of the market etc

(1)  AEMO is authorised to disclose protected information if—

(a)  the disclosure is necessary for—

(i)  the safety, reliability or security of the supply of natural gas; or

(ii)  the safety, reliability or security of a pipeline; or

(b)  the disclosure is necessary for the proper operation of a regulated gas market, a capacity auction or the Capacity Transfer and Auction Procedures; or

(c)  the information is in the public domain.

(2)  AEMO may impose conditions to be complied with in relation to information disclosed under subsection (1)(a) or (b).

s 91GG: Ins 2009 No 30, sec 14. Am 2018 No 23, sec 13.

91GH Disclosure of protected information authorised if detriment does not outweigh public benefit

(1)  Subject to this section, AEMO is authorised to disclose protected information after the restricted period if AEMO is of the opinion—

(a)  that the disclosure of the information would not cause detriment to the person who has given it or to a 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 protected information, AEMO must give the person who gave the protected information—

(a)  a written notice (an initial disclosure notice) stating—

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

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

(iii)  that the person, within the period specified in the notice, may make representations to AEMO against disclosure of the information; and

(b)  AEMO’s decision, in writing, setting out the reasons why AEMO—

(i)  wishes to make the disclosure; and

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

(3)  If AEMO is aware that the person who gave the protected information in turn received the information from another person and is aware of the other person’s identity and address, AEMO must, before disclosing the information give the other person—

(a)  a written notice (an initial disclosure notice) stating—

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

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

(iii)  that the person, within the period specified in the notice, may make representations to AEMO against disclosure of the information; and

(b)  AEMO’s decision, in writing, setting out the reasons why AEMO—

(i)  wishes to make the disclosure; and

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

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

(5)  The period 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, AEMO wishes to disclose the protected information, AEMO must give the person given the initial disclosure notice—

(a)  a written notice (a further disclosure notice) stating—

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

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

(b)  AEMO’s decision, in writing, setting out the reasons why AEMO—

(i)  intends 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 AEMO wishes to disclose it cannot cause detriment to any person referred to in subsection (2) or (3).

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

(a)  AEMO’s decision under subsection (1) to disclose protected information; and

(b)  without limiting paragraph (a), if AEMO’s decision under subsection (1) is to disclose the protected information, AEMO’s opinion—

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

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

(8)  In this section—

restricted period means a 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.

s 91GH: Ins 2009 No 30, sec 14. Am 2016 No 55, sec 16; 2021 No 3, sec 42.

Division 8 Obligation to make payments

ch 2, pt 6, div 8: Ins 2009 No 30, sec 14.

91H Obligations under Rules or Procedures to make payments

(1)  If, under the Rules or Procedures—

(a)  a Registered participant is required to pay an amount to AEMO or another Registered participant; or

(b)  AEMO is required to pay an amount to a Registered participant,

and that amount is not paid within 28 days after it is due in accordance with the Rules or Procedures, the Registered participant to whom the amount is due or AEMO (as the case requires) may recover that amount in a court of competent jurisdiction as a civil debt.

(2)  If, under the Rules or Procedures, a Registered participant is required to pay an amount to AEMO or another Registered participant, or AEMO is required to pay an amount to a Registered participant, and the Rules or Procedures do not specify a date for payment of that amount—

(a)  that amount must be paid within the period of time specified in a notice to pay issued by the Registered participant or AEMO (as the case requires) that specifies that amount; and

(b)  the Registered participant that issued the notice to pay, or AEMO (as the case requires), may, if that amount is not paid within 28 days after it is due in accordance with that notice, recover that amount in a relevant court of competent jurisdiction as a civil debt.

(3)  Subsections (1) and (2) apply despite a Registered participant or AEMO disputing, in accordance with the Rules, an amount to be paid under the Rules or Procedures, or specified in a notice to pay, unless—

(a)  the Rules or Procedures otherwise provide; or

(b)  the parties to the dispute agree otherwise; or

(c)  a Dispute resolution panel, in a rule dispute in respect of the payment of an amount referred to in subsection (1) or (2), determines that the relevant subsection does not apply; or

(d)  a court of competent jurisdiction determines that subsection (1) or (2) does not apply.

(4)  In this section—

AEMO includes, in relation to a gas trading exchange, a person appointed by AEMO to operate that exchange;

notice to pay includes a statement of payment, settlement statement, bill or invoice;

Registered participant includes the following—

(a)  an exempted participant;

(b)  a capacity auction participant;

(c)  a transportation service provider registered with AEMO under section 91BRR or exempted from registration under that section;

(d)  a gas trading exchange member.

s 91H: Ins 2009 No 30, sec 14. Am 2013 No 54, sec 8; 2018 No 23, sec 14.

Division 9 AEMO’s statutory funds

ch 2, pt 6, div 9: Ins 2009 No 30, sec 14.

91J Definitions

In this Division—

Rule fund means—

(a)  a fund—

(i)  established under legislation of a participating jurisdiction (whether primary or subordinate); and

(ii)  administered by a former gas market operator immediately before the relevant changeover date; and

(iii)  transferred to AEMO’s administration on or after that date; or

(b)  a fund established as a Rule fund under this Division.

ch 2, pt 6, div 10 (ss 91J–91KC): Ins 2009 No 30, sec 14.

91JA AEMO’s Rule funds

(1)  Subject to the Rules—

(a)  the Rule funds in existence on the relevant changeover date vest in AEMO; and

(b)  AEMO then becomes (and will continue to be) responsible for the administration of the Rule funds then in existence; and

(c)  AEMO will be responsible for the administration of a Rule fund established after the relevant changeover date as from the establishment of the fund.

(2)  AEMO must, if required to do so by the Rules or the Procedures, establish and maintain a new Rule fund in accordance with the Rules or the Procedures.

(3)  Nothing in this Law, the Rules or the Procedures constitutes AEMO, or a director of AEMO, as a trustee of a Rule fund.

ch 2, pt 6, div 10 (ss 91J–91KC): Ins 2009 No 30, sec 14.

91JB Payments into and out of Rule funds

(1)  AEMO must ensure that there is paid into each Rule fund—

(a)  all amounts received by AEMO that, under the Rules or the Procedures, are required to be paid into the fund; and

(b)  income from investment of money in the fund.

(2)  Money held in a Rule fund may be applied only in payment of—

(a)  amounts that, under the Rules or the Procedures, are required or permitted to be paid from the fund; or

(b)  liabilities or expenses of the fund.

ch 2, pt 6, div 10 (ss 91J–91KC): Ins 2009 No 30, sec 14.

91JC Investment

(1)  AEMO may invest money standing to the credit of a Rule fund.

(2)  AEMO must, in exercising the power of investment, exercise the care, diligence and skill that a prudent person would exercise in managing the affairs of others.

ch 2, pt 6, div 10 (ss 91J–91KC): Ins 2009 No 30, sec 14.

Division 10 Immunity

ch 2, pt 6, div 10 (ss 91J–91KC): Ins 2009 No 30, sec 14.

91K Immunity from liability

(1)  Neither AEMO nor an officer or employee of AEMO incurs any civil monetary liability for an act or omission in the performance or exercise, or purported performance or exercise, of a function or power under this Law, the Rules or the Procedures 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 maximum amount prescribed by the Regulations.

(3)  The Regulations prescribing a limitation of civil monetary liability for the purposes of subsection (2)—

(a)  may limit its application, or vary the maximum amount, according to—

(i)  the nature of the functions or powers out of which the liability arises; or

(ii)  the market to which the liability relates; or

(iii)  the nature of the events or circumstances out of which the liability arises; or

(iv)  the nature of the damage or loss; or

(v)  the person or persons suffering damage or loss; or

(vi)  the season or period in which the liability is incurred; or

(vii)  any combination of the above; and

(b)  may prescribe the manner in which a maximum amount is to be divided among claimants.

(4)  AEMO may enter into an agreement with a person varying or excluding the operation of a provision of this section and this section will then apply to that person subject to that agreement.

(5)  This section does not apply to any liability of an officer or employee of a body corporate to the body corporate.

ch 2, pt 6, div 10 (ss 91J–91KC): Ins 2009 No 30, sec 14.

91KA Supply interruption or disconnection in compliance with AEMO’s direction

(1)  A distributor incurs no civil monetary liability for interrupting or disconnecting the supply of natural gas to an end user in compliance or purported compliance with a direction given by AEMO under Rules related to user exit from a regulated retail gas market.

(2)  The immunity does not extend to an act or omission done or made in bad faith or through negligence.

(3)  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 maximum amount prescribed by the Regulations.

(4)  The Regulations may, for the purposes of subsection (3)—

(a)  prescribe a limitation of liability that is limited in its application to persons, events, losses or periods specified in the Regulations;

(b)  prescribe a limitation of liability that varies in amount according to the persons to whom, or the events, circumstances, losses or periods to which, it is expressed to apply;

(c)  prescribe the manner in which a maximum amount is to be divided amongst claimants.

(5)  In this section—

distribution pipeline includes a pipeline that would be likely to be classified as a distribution pipeline;

distributor means the service provider that provides pipeline services by means of a distribution pipeline and includes an officer, employee or agent of the service provider.

ch 2, pt 6, div 10 (ss 91J–91KC): Ins 2009 No 30, sec 14.

91KB Immunity in relation to use of computer software

(1)  A protected person incurs no civil monetary liability for loss or damage suffered by a Registered participant or other person in consequence of the use of computer software to operate a gas market.

(2)  In this section—

protected person means—

(a)  AEMO; or

(b)  a former gas market operator; or

(c)  an officer, employee or agent of AEMO or a former gas market operator.

ch 2, pt 6, div 10 (ss 91J–91KC): Ins 2009 No 30, sec 14.

91KC Immunity from liability—dispute resolution

(1)  A protected person incurs no civil monetary liability for an act or omission in the exercise of powers or functions related to dispute resolution under the Rules unless the act or omission is done or made in bad faith.

(2)  In this section—

protected person means—

(a)  a person appointed under the Rules to manage and facilitate dispute resolution under or in relation to the Rules or the Procedures; or

(b)  an arbitrator, mediator or other person appointed to resolve, or assist in the resolution of, disputes under or in relation to the Rules or the Procedures; or

(c)  a person or class of persons to which the protection of this section is extended by the Regulations.

ch 2, pt 6, div 10 (ss 91J–91KC): Ins 2009 No 30, sec 14.

Division 11 Other matters

ch 2, pt 6, div 11 (s 91KD): Ins 2009 No 46, sec 18.

91KD Disclosure of information for purpose of market trials

(1)  This section applies if AEMO—

(a)  conducts a trial relating to the operation and administration of a market, or a part of a market, for natural gas; and

(b)  under, or for the purpose of, that trial is given information by another person (the discloser) that relates to another person.

(2)  The discloser, by giving the information to AEMO, incurs no liability for breach of contract, breach of confidence or any other civil wrong.

(3)  AEMO, by giving or disclosing the information to a person, or publicly releasing the information, incurs no liability for breach of contract, breach of confidence or any other civil wrong.

ch 2, pt 6, div 11 (s 91KD): Ins 2009 No 46, sec 18.

Part 7 Regulation of retail gas markets

Division 1 Registration

ch 2, pt 7, div 1: Ins 2009 No 30, sec 14.

91L Retail gas markets

(1)  The retail market for natural gas in each participating jurisdiction constitutes a retail gas market.

(2)  A regulated retail gas market is a retail gas market the operation of which is governed under the Rules or Procedures (or both).

s 91L: Ins 2009 No 30, sec 14.

91LA Retail market participation

(1)  A person participates in a regulated retail gas market in a registrable capacity if the person is classified under the Rules as a participant in the relevant market.

(2)  A person cannot be classified under the Rules as a participant in a regulated retail gas market unless the person falls within 1 or more of the following classes—

(a)  service providers;

(b)  users;

(c)  non-scheme pipeline users;

(d)  producers;

(e)  storage providers;

(f)  traders;

(g)  a class prescribed under the Regulations.

s 91LA: Ins 2009 No 30, sec 14.

91LB Registration required for market participation

(1)  A person must not participate in a regulated retail gas market in a registrable capacity unless registered (or exempted from registration) in accordance with the Rules.

(2)  A person may also be exempted from registration by or under jurisdictional gas legislation.

(3)  A person who participates in a regulated retail gas market in 2 or more registrable capacities must be registered (or exempted from registration) in both or all those capacities.

(4)  For performing statutory functions, AEMO is not required to be registered.

s 91LB: Ins 2009 No 30, sec 14.

91LC Certificates of registration etc

(1)  A certificate signed by an authorised officer certifying that a person named in the certificate is registered, or exempted from registration, is evidence of the registration or exemption.

(2)  For this section, an authorised officer is AEMO’s CEO or a person authorised by the CEO to issue certificates under this section.

s 91LC: Ins 2009 No 30, sec 14.

Division 2 Retail Market Procedures

ch 2, pt 7, div 2: Ins 2009 No 30, sec 14.

91M Retail Market Procedures

AEMO may, in accordance with the Rules, make Retail Market Procedures.

s 91M: Ins 2009 No 30, sec 14.

91MA Nature of Retail Market Procedures

(1)  Retail Market Procedures are a form of statutory instrument directed at the regulation of a retail gas market.

(2)  The Retail Market Procedures may deal with the following matters—

(a)  the matters specified by the Rules;

(b)  any other matter relevant to a regulated retail gas market on which this Law or the Rules contemplate the making of Procedures.

(3)  The Retail Market Procedures—

(a)  may apply to regulated retail gas markets generally or any 1 or more of the regulated retail gas markets; and

(b)  may vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(c)  may confer functions or powers on, or leave any matter or thing to be decided by, AEMO; and

(d)  may confer rights or impose obligations on Registered participants, exempted participants, users, end users or other persons; and

(e)  may require a Registered participant or an exempted participant to give an indemnity against injury, damage or loss arising from the participant’s failure to comply with requirements imposed by the Procedures; and

(f)  may confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and

(g)  may confer power on AEMO to require a person on whom a right is conferred, or an obligation imposed, under the Procedures—

(i)  to comply with a guideline, standard or other document of an administrative nature; or

(ii)  to conduct, or submit to, a test designed by AEMO under the Procedures; and

(h)  may exempt, or confer a power of exemption, from the application of the Procedures or specified provisions of the Procedures; and

(i)  may contain provisions of a savings or transitional nature.

(4)  AEMO must not, without the consent of the MCE, make Retail Market Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.

(5)  The Retail Market Procedures cannot—

(a)  create an offence; or

(b)  provide for a criminal or civil penalty.

s 91MA: Ins 2009 No 30, sec 14.

91MB Compliance with Retail Market Procedures

(1)  AEMO and each person to whom the Retail Market Procedures are applicable must comply with the Procedures.

(2)    (Repealed)

(3)  If AEMO has reasonable grounds to suspect a breach of the Retail Market Procedures, it must, after making such inquiries and investigation as it considers appropriate, make a decision as to whether the breach is a material breach.

(4)  If AEMO decides the breach is material, AEMO—

(a)  must publish the decision and the reasons for it on its website; and

(b)  may direct the person suspected of the breach to rectify it or to take specified measures to ensure future compliance (or both); and

(c)  may refer the breach to the AER.

(5)  A direction by AEMO under subsection (4)(b) must—

(a)  specify the breach; and

(b)  specify the date by which the direction is to be complied with; and

(c)  be addressed to, and given to, the person suspected of the breach.

(6)  A person to whom a direction is given under subsection (4)(b) must comply with the direction.

(7)  AEMO must give a copy of its decision under subsection (3), its reasons for the decision and (if relevant) any direction under subsection (4)(b) to the AER.

(8)  If AEMO decides the breach is not material, AEMO must—

(a)  publish the decision and the reasons for it on its website; and

(b)  give a copy of the decision and the reasons for it to the AER.

Note—

AEMO may provide the AER with relevant information (including protected information) related to a suspected breach of the Procedures. (For disclosure of protected information, see section 91GC(2)(b).)

s 91MB: Ins 2009 No 30, sec 14. Am 2022 No 3, sec 27.

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 jurisdictional determination criteria.

s 98: Am 2009 No 30, sec 15.

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 on its website.

(4)  On publication of a notice under subsection (3) the service provider must comply with section 132.

(5)  The light regulation determination applying to the pipeline services is, by force of this section, revoked on the same day that an access arrangement that applies to the pipeline services provided by that service provider is, as the case requires, approved or made under a full access arrangement decision.

(6)  On the revocation of the light regulation determination the pipeline services to which the light regulation determination applied cease to be light regulation services.

s 117: Am 2021 No 3, sec 43.

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—scheme pipelines

ch 6, hdg: Subst 2017 No 23, sec 5.

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.

178A Application of this Chapter to disputes arising under the Rules

The provisions of this Chapter applicable to the determination of an access dispute apply, subject to such modifications as may be specified in the Rules, to the determination of any dispute arising under any provision of the Rules specified in the Rules for the purposes of the section.

s 178A: Ins 2011 No 7, sec 61.

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—$3 400;

(b)  in the case of a body corporate—$17 000.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

s 200: Am 2020 No 37, sec 61.

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—$6 300.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

s 202: Am 2020 No 37, sec 62.

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—$6 300.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

(2)  It is a reasonable excuse for the purposes of subsection (1) for a natural person to refuse or fail to answer a question or produce a document on the ground that the answer or the production of the document might—

(a)  tend to incriminate the person; or

(b)  expose the person to a criminal penalty.

(3)  Subsection (2) does not limit what is a reasonable excuse for the purposes of subsection (1).

s 203: Am 2020 No 37, sec 63.

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—$6 300.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

s 204: Am 2020 No 37, sec 64.

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 6A Access disputes—non-scheme pipelines

Part 1 Interpretation and application

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216A Definitions

In this Chapter—

access determination means a determination of an arbitrator under Part 3 and includes a variation under Part 5;

access dispute means a dispute between a user or prospective user and a service provider about 1 or more aspects of access to a pipeline service provided by means of a non-scheme pipeline (subject to the operation of section 216C(2));

dispute hearing means a hearing conducted by an arbitrator under this Chapter for the purpose of making an access determination;

distribution pipeline means a pipeline that is classified in accordance with this Law or the Rules as a distribution pipeline and includes any extension to, or expansion of the capacity of, such a pipeline that, by operation of an access arrangement or access determination, is to be treated as part of the pipeline;

non-scheme pipeline means a pipeline to which this Chapter applies by operation of section 216C;

party, in relation to an access dispute, has the meaning given by section 216I;

prospective user has the meaning given by section 216B;

scheme administrator means the AER;

transmission pipeline means a pipeline that is classified in accordance with this Law or the Rules as a transmission pipeline and includes any extension to, or expansion of the capacity of, such a pipeline that, by operation of an access arrangement or access determination, is to be treated as part of the pipeline;

user means a person who—

(a)  is a party to a contract with a service provider under which the service provider provides or intends to provide a pipeline service to that person by means of a non-scheme pipeline; or

(b)  has a right under an access determination to be provided with a pipeline service by means of a non-scheme pipeline.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216B Meaning of prospective user

(1)  For the purposes of this Chapter, a prospective user is a person who seeks or wishes to be provided with a pipeline service by means of a non-scheme pipeline.

(2)  To avoid doubt, a user is also a prospective user for the purposes of this Chapter if the user seeks or wishes to be provided with a pipeline service by means of a non-scheme pipeline other than a pipeline service already provided to them under—

(a)  a contract; or

(b)  an access determination.

(3)  Subsection (2)(b) does not limit the operation of Part 5.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216C Application of Chapter

(1)  Subject to subsection (2), this Chapter applies to and in relation to—

(a)  a transmission pipeline that is not a scheme pipeline; and

(b)  a distribution pipeline that is not a scheme pipeline.

(2)  This Chapter does not apply to or in relation to—

(a)  a pipeline, or part of a pipeline, excluded from the operation of this Chapter by the Rules; or

(b)  a pipeline within a class or group of pipelines excluded from the operation of this Chapter by the Rules; or

(c)  a pipeline service (including in relation to a specific pipeline, or part of a specific pipeline) excluded from the operation of this Chapter by the Rules.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216D Application of this Chapter to disputes arising under Rules

The provisions of this Chapter applicable to the determination of an access dispute apply, subject to such modifications as may be prescribed by the Rules, to the determination of any dispute arising under any provision of the Rules specified in the Rules for the purposes of this section.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216E 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.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

Part 2 Negotiation of access

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216F Access proposals

The Rules may contain provisions for or with respect to seeking access to a pipeline service provided or to be provided by means of a non-scheme pipeline (or by part of a non-scheme pipeline or by an extension to, or expansion of the capacity of, a non-scheme pipeline).

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216G Duty to negotiate in good faith

A prospective user or user seeking access to a pipeline service provided or to be provided by means of a non-scheme pipeline (or by part of a non-scheme pipeline or by an extension to, or expansion of the capacity of, a non-scheme pipeline), and the service provider for the relevant non-scheme pipeline, must negotiate in good faith with each other about whether access can be granted and, if so, the terms and conditions for the provision of access to the prospective user or user (as the case requires).

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216H Notification of access dispute

(1)  Subject to this section, if a prospective user or user (as the case requires) and a service provider cannot agree about 1 or more aspects of access to a pipeline service after a request has been made in accordance with the Rules, the prospective user or user, or the service provider, may notify the scheme administrator, in writing, that an access dispute exists.

(2)  A notification must include, in accordance with the Rules, information about—

(a)  the matters (if any) on which agreement has been reached; and

(b)  the matters that are in dispute; and

(c)  any other matter specified by the Rules.

(3)  A notification must be accompanied by the fee set by the Rules (if any).

(4)  A notification cannot be made under this section if the access dispute relates to a matter excluded from arbitration under this Chapter by the Rules.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216I Parties to an access dispute

The parties to an access dispute are—

(a)  the parties to the negotiations that gave rise to the access dispute under section 216H(1); and

(b)  if the scheme administrator is of the opinion that the resolution of the access dispute may involve requiring another person to do something and that it is appropriate that the person be joined as a party—that other person.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

Part 3 Reference of dispute to arbitration

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216J Reference of dispute

(1)  If the scheme administrator receives notification of an access dispute under Part 2, the dispute must be referred to arbitration.

(2)  The scheme administrator must give notice of the referral of an access dispute to arbitration to the parties to the negotiations that gave rise to the access dispute and, if relevant, to any other person who will be a party to the access dispute.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216K Selection of arbitrator

(1)  The parties to an access dispute may agree to appoint, in accordance with the Rules, the arbitrator for the purposes of an access dispute that is to be referred to arbitration under this Part.

(2)  If the parties do not agree to the appointment of an arbitrator within a period specified by the Rules, the arbitrator will be a person selected by the scheme administrator after consultation with the parties to the access dispute.

(3)  The arbitrator must be a person who—

(a)  is independent of the parties to the dispute; and

(b)  is properly qualified to act in the resolution of the dispute; and

(c)  has no direct or indirect interest in the outcome of the dispute.

(4)  If for some reason an arbitrator does not complete an arbitration, the parties may agree, in accordance with the Rules, to make a fresh appointment and, in default of agreement within a period specified by the Rules, the scheme administrator may, after consultation with the parties, make the appointment.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216L Determination of access dispute

(1)  Unless an arbitration is terminated under another provision of this Chapter, the arbitrator must make a determination on access by the prospective user or user (as the case requires) (including a determination that does not require a service provider to provide access to any pipeline services).

(2)  A determination may deal with any matter relating to access by the prospective user or user to the pipeline services specified by the Rules for the purposes of this subsection (and the arbitrator must not make a determination that is inconsistent with the Rules or goes beyond the matters specified by the Rules).

(3)  The Rules may also, in connection with the making of an access determination, contain provisions for or with respect to such things as—

(a)  the form of any determination; and

(b)  the content of any determination, including as to the giving of reasons; and

(c)  the time within which a determination must be made; and

(d)  the process for making a determination; and

(e)  when a determination takes effect; and

(f)  the giving of notice of the making of a determination.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216M Principles to be taken into account

The arbitrator must, when making a determination on access, take into account any pricing or other principle specified in the Rules.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216N Restrictions on access determinations

(1)  The arbitrator must not make an access determination that would have any of the following effects—

(a)  preventing a user obtaining a sufficient amount of a pipeline service under a contract or previous access determination to be able to meet the user’s reasonably anticipated requirements, measured at the time that the access dispute was notified;

(b)  preventing a prospective user or user from obtaining, by the exercise of a pre-notification right, a sufficient amount of a pipeline service to be able to meet the prospective user’s or user’s actual requirements;

(c)  depriving a person of a relevant protected contractual right.

(2)  In this section—

pre-notification right means a right under a contract, or under an access determination, that was in force at the time when the access dispute was notified under section 216H;

relevant exclusivity right means an express contractual right that—

(a)  prevents a service provider supplying pipeline services to persons who are not parties to the contract; or

(b)  limits or controls a service provider’s ability to supply pipeline services to persons who are not parties to the contract,

but does not include a user’s contractual right to obtain a certain amount of pipeline services;

relevant protected contractual right means a right under a contract (other than a relevant exclusivity right) that was in force immediately before notification of an access dispute under section 216H.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216O Arbitrator’s power to terminate arbitration

(1)  An arbitrator may determine not to proceed with an arbitration (and terminate the proceedings under this Chapter) if the arbitrator considers that—

(a)  the notification of the dispute was vexatious; or

(b)  the subject matter of the dispute is trivial, misconceived or lacking in substance; or

(c)  the party who notified the access dispute did not negotiate in good faith; or

(d)  there is some other good reason why the arbitration should not proceed.

(2)  Furthermore, the arbitrator may at any time terminate an arbitration without making an access determination if the arbitrator considers that—

(a)  the prospective user or user seeking access is not engaging in the arbitration in good faith; or

(b)  the terms and conditions on which access is to be granted should be governed by an existing contract or determination.

(3)  The arbitrator may also at any time terminate an arbitration if the arbitrator considers that a specified dispute termination circumstance has occurred.

(4)  In subsection (3), a specified dispute termination circumstance is a circumstance specified by the Rules as being a circumstance, the occurrence of which, entitles the arbitrator to terminate an access dispute without any further step being taken.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216P Access seeker’s right to terminate arbitration

(1)  The prospective user or user seeking access to pipelines services under this Chapter may terminate the arbitration before an access determination is made by the arbitrator.

(2)  The arbitration is terminated under this section by giving notice of termination to—

(a)  the arbitrator; and

(b)  the other parties to the arbitration; and

(c)  the scheme administrator.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

Part 4 Compliance with access determinations

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216Q Compliance with access determinations

(1)  Subject to the Rules and to subsection (2), an access determination is enforceable as if it were a contract between the parties to the access determination.

(2)  A prospective user or user of a pipeline service to which an access determination relates is not bound to seek access to the service (but if access is sought or obtained then the prospective user or user (as the case requires) is bound by any relevant provision of the access determination).

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

Part 5 Variation of access determinations

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216R Variation of access determinations

(1)  An access determination may be varied by agreement between all parties to the access determination.

(2)  The Rules may also contain provisions with respect to seeking variations to an access determination.

(3)  The provisions of this Chapter about the arbitration of an access dispute apply with necessary modifications to a proposal under the Rules to vary an access determination or to a dispute arising out of such a proposal.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

Part 6 Hearing procedures

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216S Hearing procedures

Chapter 6 Part 6 applies to an arbitration under this Chapter—

(a)  as if—

(i)  a reference in that Part to a dispute hearing were a reference to a hearing conducted by an arbitrator for the purposes of making an access determination under this Chapter; and

(ii)  a reference in that Part to a party or parties were a reference to a party or the parties to an arbitration under this Chapter; and

(iii)  a reference in that Part to the dispute resolution body were a reference to an arbitrator under this Chapter; and

(iv)  a reference in that Part to an access dispute were a reference to an access dispute under this Chapter; and

(b)  subject to the exclusion of sections 206 and 207, and subject to any other exclusion prescribed by the Regulations; and

(c)  subject to any modifications prescribed by the Regulations; and

(d)  with such other necessary alterations and modifications.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

Part 7 Miscellaneous matters

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216T Correction of access determinations for clerical mistakes etc

The Rules may make provision with respect to correcting the following in an access determination—

(a)  a clerical mistake;

(b)  an error arising from an accidental slip or omission;

(c)  a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in an access determination;

(d)  a defect in form.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216U 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 non-scheme pipeline during the period of the dispute.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

216V Costs of arbitration

(1)  Subject to this section, the costs of an arbitration under this Chapter (including costs associated with the arbitration process and the cost of the arbitrator) will be shared equally between the parties to the arbitration.

(2)  The Rules may make provision with respect to the costs of an arbitration under this Chapter, including rules that provide for a different approach to allocating costs under subsection (1) in specified circumstances.

(3)  Costs payable to an arbitrator are a debt due to the arbitrator and may be recovered by the arbitrator in a court of competent jurisdiction.

(4)  Despite anything in a preceding subsection, the parties to an arbitration will bear their own costs.

ch 6A, Parts 1–7 (ss 216A–216V): Ins 2017 No 23, sec 6.

Chapter 7 The Natural Gas Services Bulletin Board

Part 1 AEMO to be Bulletin Board operator

ch 7, pt 1, hdg: Am 2009 No 30, sec 16.

217 AEMO to be Bulletin Board operator

AEMO is responsible for the operation of the Natural Gas Services Bulletin Board.

s 217: Am 2009 No 30, sec 17.

218 AEMO’s obligation to maintain Bulletin Board

(1)  AEMO must maintain the Natural Gas Services Bulletin Board.

(2)  The Natural Gas Services Bulletin Board—

(a)  must be maintained as a website; and

(b)  must contain information of the kind specified in the Rules in relation to the natural gas industry.

(3)  AEMO may replace the website with another website containing information of the kind specified in the Rules in relation to the natural gas industry.

s 218: Am 2009 No 30, sec 17; 2018 No 23, sec 15; 2022 No 3, sec 28.

219 AEMO’s other functions as operator of Natural Gas Services Bulletin Board

AEMO also has, in its capacity as operator of the Natural Gas Services Bulletin Board, the following functions—

(a)  to collect and collate Bulletin Board information;

(b)  to collect and collate other information in relation to the natural gas industry 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)  subject to the Rules, 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)  the other functions conferred on AEMO in its capacity as the operator of the Natural Gas Services Bulletin Board by this Law, the Rules or any other law prescribed by the Regulations for the purposes of this paragraph.

s 219: Am 2009 No 30, sec 18; 2018 No 23, sec 16; 2022 No 3, sec 29.

s 220: Rep 2009 No 30, sec 19.

s 221: Rep 2009 No 30, sec 20.

222 Fees for services provided

(1)  AEMO 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.

s 222: Am 2009 No 30, sec 21.

Part 2 Bulletin Board information

223 Obligation to give information to AEMO

(1)  A person who has possession or control of information in relation to the natural gas industry must give the information to AEMO for use by AEMO in connection with the Natural Gas Services Bulletin Board if the person is required to do so under the Rules.

(2)  The information must be given to AEMO in accordance with the Rules.

(3)  Subsection (1) does not apply if the person is exempt under the Rules from giving the information.

(4)  Subsection (1) applies subject to any provision made by the Regulations as to any person, transaction or activity that is not to be the subject of any Rules made under this section.

(5)  AEMO must make available for the operation of the Bulletin Board information about natural gas, natural gas services or the use of natural gas that it acquires in its capacity as the operator or administrator of a regulated gas market.

(6)  Subsection (1) does not require—

(a)  a person to disclose information that is the subject of legal professional privilege; or

(b)  a natural person to disclose information that would incriminate the person or make the person liable to a criminal penalty under the law of an Australian jurisdiction (whether or not the jurisdiction is a participating jurisdiction).

s 223: Am 2009 No 30, sec 22; 2018 No 23, sec 17. Subst 2022 No 3, sec 30.

223A (Repealed)

s 223A: Ins 2018 No 23, sec 18. Rep 2022 No 3, sec 30.

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) or under section 226A on the ground of any duty of confidence.

s 224: Am 2018 No 23, sec 19; 2022 No 3, sec 31.

225 Giving false or misleading information

A person must not give Bulletin Board information to AEMO or the AER that the person knows is false or misleading in a material particular.

s 225: Am 2009 No 30, sec 23; 2022 No 3, sec 32.

226 Immunity of persons giving information to AEMO or AER

(1)  A person who gives Bulletin Board information to AEMO or the AER 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.

s 226: Am 2009 No 30, sec 24; 2022 No 3, sec 33.

226A Provision of certain information to AER

(1)  Without limiting any other provision, the Rules may provide for—

(a)  requirements for persons subject to the operation of this Chapter to give to the AER gas price assumptions and forecasts connected with estimates of reserves and resources; and

(b)  requirements to ensure that information satisfies the requirements of the Rules; and

(c)  requirements for the AER to publish information obtained under paragraph (a) on an anonymised basis.

(2)  The AER, in relation to information given to the AER in compliance with a requirement under subsection (1), is to treat the information as having been given to it in confidence and is authorised to disclose the information in accordance with Chapter 10 Part 2 Division 1.

s 226A: Ins 2022 No 3, sec 34.

Part 3 BB Procedures

ch 7, pt 3: Subst 2009 No 30, sec 25.

227 BB Procedures

AEMO may, in accordance with the Rules, make BB Procedures.

s 227: Subst 2009 No 30, sec 25.

228 Nature of BB Procedures

(1)  BB Procedures are a form of statutory instrument directed at the regulation of the Natural Gas Services Bulletin Board.

(2)  The BB Procedures may deal with the following matters—

(a)  the matters specified by the Rules;

(b)  any other matter relevant to the Natural Gas Services Bulletin Board on which this Law or the Rules contemplate the making of Procedures.

(3)  The BB Procedures—

(a)  may vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(b)  may confer functions or powers on, or leave any matter or thing to be decided by, AEMO; and

(c)  may confer rights or impose obligations; and

(d)  may confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and

(e)  may confer power on AEMO to require a person on whom a right is conferred, or an obligation imposed, under the Procedure—

(i)  to comply with a guideline, standard or other document of an administrative nature; or

(ii)  to conduct, or submit to, a test designed by AEMO under the Procedures; and

(f)  may exempt, or confer a power of exemption, from the application of the Procedures or specified provisions of the Procedures; and

(g)  may contain provisions of a savings or transitional nature.

(4)  AEMO must not, without the consent of the MCE, make Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.

(5)  The BB Procedures cannot—

(a)  create an offence; or

(b)  provide for a criminal or civil penalty.

s 228: Subst 2009 No 30, sec 25.

228A Compliance with BB Procedures

(1)  AEMO and each person to whom the BB Procedures are applicable must comply with the Procedures.

(2)    (Repealed)

(3)  If AEMO has reason to believe that a person is not complying with the BB Procedures, it may, by notice in writing, direct the person to comply with relevant provisions of the BB Procedures.

(4)  A person to whom a direction is addressed under subsection (3) must comply with the direction.

s 228A: Ins 2009 No 30, sec 25. Am 2022 No 3, sec 35.

Chapter 7A Access to operational transportation services

Part 1 Standard terms for operational transportation services

ch 7A, Parts 1–3 (ss 228B–228L): Ins 2018 No 23, sec 20.

228B Transportation service provider to publish standard OTSA

(1)  A transportation service provider for a transportation facility must, in accordance with the Rules, prepare and publish on its website a form of operational transportation agreement in respect of the transportation facility that complies with the applicable requirements of the Rules and the Operational Transportation Service Code (a standard OTSA) unless—

(a)  the provider is exempted from the requirement under this section to prepare and publish a standard OTSA in respect of that transportation facility by or under the Rules; or

(b)  the provider is exempted by the AER from the requirement under this section in respect of that transportation facility by or under this Law or the Rules.

(2)  A transportation service provider for a transportation facility in respect of which a standard OTSA must be prepared and published under this section must, where required by the Rules or the Operational Transportation Service Code, prepare and publish on its website an amended standard OTSA in respect of the transportation facility.

(3)  A transportation service provider for a transportation facility may, where permitted by the Rules or the Operational Transportation Service Code, prepare and publish on its website an amended standard OTSA in respect of the transportation facility.

ch 7A, Parts 1–3 (ss 228B–228L): Ins 2018 No 23, sec 20.

228C Formation of contracts on standard terms

(1)  A transportation service provider for a transportation facility must on request by any person made in respect of the transportation facility—

(a)  make an offer to enter into the standard OTSA for the transportation facility in accordance with the Rules; and

(b)  if the offer is accepted, enter into the agreement in accordance with the Rules.

(2)  Subsection (1) does not apply to a transportation service provider in respect of a transportation facility—

(a)  if the provider is exempted from compliance with that subsection in respect of that transportation facility in accordance with the Rules; or

(b)  if the provider is exempted by the AER from compliance with that subsection in respect of that transportation facility under this Law or the Rules; or

(c)  in other circumstances specified by the Rules.

(3)  A standard OTSA takes effect as a contract between the transportation service provider and another person when—

(a)  the other person accepts the transportation service provider’s offer to enter into the standard OTSA and enters into the OTSA; and

(b)  any pre-conditions to the formation of the contract are satisfied.

(4)  A contract formed in accordance with subsection (3) may be amended in accordance with its terms.

(5)  A contract formed in accordance with subsection (3) expires and may be terminated in accordance with its terms.

ch 7A, Parts 1–3 (ss 228B–228L): Ins 2018 No 23, sec 20.

228D Exemptions from obligations under section 228B or 228C

(1)  A transportation service provider for a transportation facility may request the AER to exempt that person from an obligation imposed under section 228B or 228C in respect of that transportation facility.

(2)  A request under subsection (1) must be made in accordance with the Rules.

(3)  On receipt of a request under subsection (1), the AER may, subject to the Rules, grant the person the exemption.

(4)  An exemption granted under subsection (3) may be subject to such terms and conditions as may be required by the Rules or as the AER considers appropriate in accordance with the Rules.

ch 7A, Parts 1–3 (ss 228B–228L): Ins 2018 No 23, sec 20.

228E Requirements relating to standard OTSA

Without limiting any other provision, the Rules may make provision for or with respect to such things as—

(a)  the time and manner of preparation and publication of a standard OTSA; and

(b)  the form and content of a standard OTSA, including the transportation services that may be available for use under a standard OTSA; and

(c)  offers for, and entry into, a standard OTSA; and

(d)  amendments to a standard OTSA and contracts in the form of a standard OTSA; and

(e)  matters of a savings or transitional nature.

ch 7A, Parts 1–3 (ss 228B–228L): Ins 2018 No 23, sec 20.

228F Service provider may enter into agreements different from a standard OTSA

Subject to section 83C, nothing in this Law is to be taken as preventing a transportation service provider from entering into an operational transportation service agreement with a transportation facility user or a prospective transportation facility user that is different to a standard OTSA prepared and published by the transportation service provider under section 228B.

ch 7A, Parts 1–3 (ss 228B–228L): Ins 2018 No 23, sec 20.

Part 2 Operational Transportation Service Code

ch 7A, Parts 1–3 (ss 228B–228L): Ins 2018 No 23, sec 20.

228G Operational Transportation Service Code

The AER may, in accordance with the Rules—

(a)  amend the initial Operational Transportation Service Code; and

(b)  from time to time make subsequent amendments to the Code.

ch 7A, Parts 1–3 (ss 228B–228L): Ins 2018 No 23, sec 20.

228H Nature of the Operational Transportation Service Code

(1)  The Operational Transportation Service Code (the Code) is—

(a)  the initial Operational Transportation Service Code; or

(b)  if the initial Operational Transportation Service Code is amended under section 228G—that Code as amended and as subsequently amended from time to time under that section.

(2)  The Code is made under the Rules and specifies the content of, or requirements for the content of, a standard OTSA, including the transportation services that may be provided under a standard OTSA and the terms and conditions applicable to the use of those transportation services.

(3)  The Code may deal with the following matters—

(a)  the matters specified by the Rules;

(b)  any other matter relevant to a standard OTSA that this Law or the Rules contemplates being dealt with in the Code.

(4)  The Code may specify provisions or classes of provisions that—

(a)  confer rights or impose obligations under a standard OTSA; and

(b)  vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(c)  must be made by a transportation service provider in accordance with the Rules or Code and incorporated in a standard OTSA; and

(d)  must not be included in a standard OTSA.

(5)  The Code may contain provisions of a savings or transitional nature.

(6)  The AER must not, without the consent of the MCE, make a provision in the Code that confers a right or function, or imposes an obligation, on the MCE or a Minister of a participating jurisdiction.

(7)  The Code cannot—

(a)  create an offence; or

(b)  provide for a criminal or civil penalty.

ch 7A, Parts 1–3 (ss 228B–228L): Ins 2018 No 23, sec 20.

Part 3 Other matters relating to access to operational transportation services

ch 7A, Parts 1–3 (ss 228B–228L): Ins 2018 No 23, sec 20.

228I Service requirements may be specified in the Rules

Without limiting any other provision, the Rules may make provision for or with respect to the following—

(a)  principles that must be complied with when preparing terms and conditions for a standard OTSA;

(b)  charges under a standard OTSA and review of those charges by the AER;

(c)  the priority to be given to a transportation service;

(d)  the allocation to zones of points on a transportation facility where transportation services are provided and the provision and use of transportation services using zones;

(e)  the obligations of transportation service providers with respect to facilitating the operational transfer of transportation capacity;

(f)  the use of an operational transportation service after termination or suspension of the contract from which the transportation capacity was first derived;

(g)  requests by a transportation facility user for changes to the point on a transportation facility where natural gas may be injected or withdrawn;

(h)  the collection, recording and use of information about nominations and renominations for use of transportation services and the scheduling of that use.

ch 7A, Parts 1–3 (ss 228B–228L): Ins 2018 No 23, sec 20.

228J When operational transfer must be offered

(1)  If a transportation facility user states terms and conditions (the first terms) on which the user offers to grant to another person a right to use, directly or indirectly, the transportation capacity of the user without arranging for its transfer to the other person, the user must, on request by the person, state the terms and conditions on which the user will arrange for a transfer of the transportation capacity to the person for use under an operational transportation service agreement (the second terms).

(2)  If there is a difference in the price stated in the first terms and the second terms, the transportation facility user making the offer must include in the second terms a statement of the reasons for the difference.

ch 7A, Parts 1–3 (ss 228B–228L): Ins 2018 No 23, sec 20.

228K Preventing or hindering access to operational transportation services

(1)  A person who is—

(a)  a transportation service provider; or

(b)  a transportation facility user; or

(c)  an associate of a transportation service provider or a transportation facility user,

must not engage in conduct for the purpose of preventing or hindering the access of another person to an operational transportation service.

(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 the following—

(i)  refusing to supply a transportation service or an operational transportation service;

(ii)  without reasonable grounds, limiting or disrupting a transportation service or an operational transportation service or a transfer of transportation capacity;

(iii)  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; and

(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 (other than conduct in breach of this Law, the Regulations, the Rules or the Procedures), if the agreement was in force on 19 March 2018.

ch 7A, Parts 1–3 (ss 228B–228L): Ins 2018 No 23, sec 20.

228L Transportation service provider providing operational transportation services must not price discriminate

(1)  A transportation service provider must not engage in price discrimination when providing operational transportation services.

(2)  Subsection (1) does not apply if the transportation service provider engages in price discrimination that is conducive to efficient service provision.

ch 7A, Parts 1–3 (ss 228B–228L): Ins 2018 No 23, sec 20.

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, Rules or Procedures 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); or

(d)  a provision of the Procedures.

(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.

s 229: Am 2009 No 30, sec 26.

230 Time limits 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, the Rules or the Procedures 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.

s 230: Am 2009 No 30, sec 27.

Part 1A Enforceable undertakings

ch 8, pt 1A (s 230A): Ins 2011 No 7, sec 62.

230A Enforceable undertakings

(1)  The AER may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the AER has a function or power under this Law or the Rules.

(2)  A person may withdraw or vary the undertaking at any time, but only with the consent of the AER.

(3)  If the AER considers that the person who gave the undertaking has breached any of its terms, the AER may apply to the Court for an order under subsection (4).

(4)  If the Court is satisfied that the person has breached a term of the undertaking, the Court may make any or all of the following orders—

(a)  an order directing the person to comply with that term of the undertaking;

(b)  an order directing the person to pay the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is attributable to the breach;

(c)  an order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

(d)  any other order that the Court considers appropriate.

ch 8, pt 1A (s 230A): Ins 2011 No 7, sec 62.

Part 2 Proceedings for breaches of this Law, Regulations, the Rules or the Procedures

ch 8, pt 2, hdg: Am 2009 No 30, sec 28.

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 has breached a provision of this Law, the Regulations, the Rules or the Procedures 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 has breached a provision of this Law the Regulations, the Rules or the Procedures 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, the Rules and the Procedures;

(da)  an order that the person perform a specified service that relates to the breach and that is for the benefit of the community or a section of the community;

(db)  an order that the person, at the person’s expense, engage—

(i)  another person specified in the order; or

(ii)  another person in a class of persons specified in the order,

to perform a service that is specified in the order and that relates to the breach and that is for the benefit of the community or a section of the community;

(dc)  an order to ensure that the person does not engage in further conduct of the same nature, or similar or related conduct, during the period of the order (which cannot exceed 3 years), including—

(i)  an order that the person establish a compliance program or an education and training program for employees or other persons involved in the person’s business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the conduct constituting the breach, or similar or related conduct; or

(ii)  an order that the person revise the internal operations of the person’s business that led to the person committing the breach;

(dd)  an order that the person—

(i)  disclose, in the way and to the persons specified in the order, specified information, being information that the person has possession of or access to; and

(ii)  publish, at the person’s expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order;

(e)  an order of a kind prescribed by the Regulations.

(2a)  An order under paragraph (db) of subsection (2) is not enforceable against a person mentioned in paragraph (db)(i) or (ii).

(3)  If a person has engaged, is engaging or is proposing to engage in any conduct in breach of a provision of this Law, the Regulations, the Rules or the Procedures 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.

s 231: Am 2009 No 30, sec 29; 2020 No 37, sec 65.

232 Proceedings for declaration that a person has breached a conduct provision

(1)  The Court may make an order, on application by a person other than the AER, declaring that another person has breached a conduct provision.

(2)  If the order declares a person has breached a conduct provision, the order may include 1 or more of the following—

(a)  an order that the person cease, within a specified period, the act, activity or practice constituting the breach;

(b)  an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;

(c)  an order that the person implement a specified program for compliance with this Law, the Regulations and the Rules;

(d)  an order of a kind prescribed by the Regulations.

(3)  If a person has engaged, is engaging or is proposing to engage in any conduct in breach of a conduct provision, the Court may, on application by another person (other than the AER), grant an injunction—

(a)  restraining the first mentioned person from engaging in the conduct; and

(b)  if, in the Court’s opinion, it is desirable to do so—requiring the first mentioned person to do something.

(4)  The power of the Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised—

(a)  if the Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

(b)  if it appears to the Court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

s 232: Am 2011 No 7, sec 63; 2020 No 37, sec 66.

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 have breached a provision of this Law, the Regulations or the Rules must be determined having regard to all relevant matters, including—

(a)  the nature and extent of the breach; and

(b)  the nature and extent of any loss or damage suffered as a result of the breach; and

(ba)  without limiting the operation of section 3A(1)(c)(ii)(B) or (C)—the value of any benefit reasonably attributable to the breach that the person or, in the case of a body corporate, any related body corporate, has obtained, directly or indirectly; and

(c)  the circumstances in which the breach took place; and

(d)  whether the person has engaged in any similar conduct and been found to have breached a provision of this Law, the Regulations or the Rules in respect of that conduct; and

(e)  whether the service provider had in place a compliance program approved by the AER or required under the Rules, and if so, whether the service provider has been complying with that program.

s 234: Am 2020 No 37, sec 67.

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 AEMO’s decisions

(1)  A person aggrieved by—

(a)  a decision or determination of AEMO under this Law, the Rules or the Procedures; or

(b)  a failure by AEMO to make a decision or determination under this Law, the Rules or the Procedures; or

(c)  conduct engaged in, or proposed to be engaged in, by AEMO for the purpose of making a decision or determination under this Law, the Rules or the Procedures,

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 a decision or determination to which the application relates or prevent the taking of action to implement the decision or determination.

s 243: Subst 2009 No 30, sec 30.

Part 5 Merits review and other non-judicial review

Division 1 Interpretation

244 Definitions

In this Part—

applicant means—

(a)    (Repealed)

(b)  a person who makes an application under section 263;

information disclosure decision means—

(a)  a decision to disclose information made by the AER under section 329; or

(b)  a decision to disclose information made by AEMO under section 91GH.

review under this Part means a review under Division 3;

s 244: Am 2009 No 30, sec 31; 2013 No 79, sec 22; 2021 No 3, sec 44.

Division 2

245–262  (Repealed)

ch 8, pt 5, div 2: Rep 2021 No 3, sec 45.

s 245: Rep 2021 No 3, sec 45.

s 246: Am 2013 No 79, sec 23. Rep 2021 No 3, sec 45.

s 247: Rep 2021 No 3, sec 45.

s 248: Am 2013 No 79, sec 24. Rep 2021 No 3, sec 45.

s 249: Am 2013 No 79, sec 25. Rep 2021 No 3, sec 45.

ss 250–253: Rep 2021 No 3, sec 45.

s 254: Am 2013 No 79, sec 26. Rep 2021 No 3, sec 45.

s 255: Rep 2021 No 3, sec 45.

s 256: Am 2013 No 79, sec 27. Rep 2021 No 3, sec 45.

s 257: Rep 2021 No 3, sec 45.

s 258: Am 2013 No 79, sec 28. Rep 2021 No 3, sec 45.

s 258A: Ins 2013 No 79, sec 29. Rep 2021 No 3, sec 45.

s 259: Am 2013 No 79, sec 30. Rep 2021 No 3, sec 45.

s 260: Rep 2021 No 3, sec 45.

s 261: Am 2013 No 79, sec 31. Rep 2021 No 3, sec 45.

s 262: Rep 2021 No 3, sec 45.

Division 3 Tribunal review of information disclosure decisions

ch 8, pt 5, div 3, hdg: Am 2009 No 30, sec 32.

263 Application for review

(1)  A person whose interests are adversely affected by an 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 notice with the Tribunal no later than 5 business days after the date of the last notice given under section 91GH or section 329 (as the case requires).

(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.

s 263: Am 2009 No 30, sec 33.

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 information disclosure decision; or

(b)  forbid disclosure by the AER or AEMO of the information or document to which the information disclosure decision relates; or

(c)  restrict, as specified in the determination, the intended disclosure by the AER or AEMO of the information or document to which the information disclosure decision 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 or AEMO (as the case requires) under this Law or the Rules.

(4)  A determination by the Tribunal affirming the information disclosure decision, or forbidding or restricting disclosure of information, is, for the purposes of this Law (other than this Part), to be taken to be a decision of the AER or AEMO (as the case requires).

s 265: Am 2009 No 30, sec 34.

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 information disclosure decision to which the application relates.

s 266: Am 2009 No 30, sec 35.

267 Assistance from AER or AEMO

The member of the Tribunal presiding in the review may require the AER or AEMO (as the case requires) to give information, to make a report or to give other assistance for the purposes of the review.

s 267: Subst 2009 No 30, sec 36.

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 the AER or AEMO to pay the costs of another party to the review unless the Tribunal considers that the AER or AEMO has conducted their case in the review without due regard to—

(a)  the costs that would have to be incurred by another party to the review as a result of that conduct; or

(b)  the time required by—

(i)  the Tribunal to hear the review as a result of that conduct; or

(ii)  another party to prepare their case as a result of that conduct; or

(c)    (Repealed)

(3)    (Repealed)

s 268: Am 2013 No 79, sec 32; 2021 No 3, sec 46.

269 Amount of costs

(1)  If the Tribunal makes an order for costs in a review under this Part, the Tribunal may in that order fix the amount of costs payable by a party to the review on—

(a)  a party and party basis; or

(b)  a solicitor and client basis; or

(c)  an indemnity basis; or

(d)  any other basis as the Tribunal may decide.

(2)    (Repealed)

s 269: Am 2013 No 79, sec 33; 2021 No 3, sec 47.

269A, 270 (Repealed)

s 269A: Ins 2013 No 79, sec 34. Rep 2021 No 3, sec 48.

s 270: Am 2013 No 79, sec 35. Rep 2021 No 3, sec 48.

Part 5A Dispute resolution under the Rules

ch 8, pt 5A: Ins 2009 No 30, sec 37.

270A (Repealed)

s 270A: Ins 2009 No 30, sec 37. Rep 2021 No 3, sec 49.

270B Commercial Arbitration Acts to apply to proceedings before Dispute resolution panels

(1)  Subject to the modifications prescribed by the Regulations, the procedural provisions of the Commercial Arbitration Act of this jurisdiction apply to the hearing of a rule dispute and decisions or determinations of a Dispute resolution panel.

(2)  In this section—

procedural provisions of the Commercial Arbitration Act of this jurisdiction means the provisions prescribed by the Regulations for the purposes of this section.

s 270B: Ins 2009 No 30, sec 37. Subst 2021 No 3, sec 50.

270C Appeals on questions of law from decisions or determinations of Dispute resolution panels

(1)  A person who is a party to a rule dispute may appeal to the Court, on a question of law, against—

(a)  a decision or determination of a Dispute resolution panel; or

(b)  a decision that is classified under the Rules as an appealable decision.

(2)  Subject to the modifications prescribed by the Regulations, the review provisions of the Commercial Arbitration Act of this jurisdiction apply to the decision or determination under appeal.

(3)  In this section—

review provisions of the Commercial Arbitration Act of this jurisdiction means the provisions prescribed by the Regulations for the purposes of this section.

s 270C: Ins 2009 No 30, sec 37. Am 2021 No 3, sec 51.

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.

(5)  A reference in this section to an access determination includes a reference to an access determination under Chapter 6A.

s 271: Am 2017 No 23, sec 7.

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 if the AER believes on reasonable grounds that the person has breached a civil penalty provision.

(2)  The AER must, however, serve an infringement notice not later than 12 months after the date on which the AER forms a belief that there has been a breach of a civil penalty provision.

(3)  An infringement notice may be served on a natural person—

(a)  by delivering it personally to the person; or

(b)  by sending it by post addressed to the person to their usual or last known place of residence or business.

(4)  An infringement notice may be served on a person that is a body corporate—

(a)  by delivering it personally to the registered office or usual or last known place of business of the body corporate; or

(b)  by sending it by post addressed to the body corporate to its registered office or usual or last known place of business.

s 277: Am 2020 No 37, sec 68.

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 penalties

(1)  In this section—

tier 1 civil penalty provision means a provision with a civil penalty determined under section 3A(1)(c);

tier 2 civil penalty provision means a provision with a civil penalty determined under section 3A(1)(b);

tier 3 civil penalty provision means a provision with a civil penalty determined under section 3A(1)(a).

(2)  The infringement penalty for a breach of a civil penalty provision is—

(a)  in the case of a tier 3 civil penalty provision—

(i)  if the breach is alleged to have been committed by a natural person—$6 790 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision;

(ii)  if the breach is alleged to have been committed by a body corporate—

(A)  if the AER makes a determination under subsection (3)—$6 790 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision; or

(B)  in any other case—$33 900 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision;

(b)  in the case of a tier 2 or tier 1 civil penalty provision—

(i)  if the breach is alleged to have been committed by a natural person—$13 600 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision;

(ii)  if the breach is alleged to have been committed by a body corporate—$67 800 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision.

(3)  In the case of a body corporate that is not a listed corporation or a body corporate that is subject to the infringement penalty by virtue only of being a related body corporate, the AER may, in a particular case, determine that the infringement penalty to be included in an infringement notice to be issued to the body corporate in relation to an alleged breach of a tier 3 civil penalty provision will be the amount applying under subsection (2)(a)(ii)(A) if the AER considers this to be an appropriate course of action after taking into account—

(a)  the nature of the alleged breach; and

(b)  the degree of financial impact on the body corporate if the higher infringement penalty under subsection (2)(a)(ii)(B) were to be imposed; and

(c)  the extent to which the imposition of the higher infringement penalty would appear to be excessive in the circumstances; and

(d)  any other matter considered relevant by the AER.

Note—

See Schedule 2 clause 47A, which provides for the amounts specified in this section to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

s 279: Subst 2020 No 37, sec 69.

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, which is within the scope of the actual or apparent authority of the officer or employee, that would, if that act were committed by the corporation, constitute a breach of a provision of this Law, the Regulations or the Rules, that corporation is to be taken to have contravened that provision.

s 289: Am 2020 No 37, sec 70.

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)  AEMO;

(c)  the ERA;

(d)  REMCo;

(e)  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 and on the AEMC’s website;

(b)  in relation to a decision under section 301(2)—publish on the AEMC’s website and make available at the offices of the AEMC;

(c)  in relation to a proposed Rule referred to in section 303 and any other documents prescribed by the Regulations in relation to a proposed Rule referred to in section 303—publish on the AEMC’s website and make available at the offices of the AEMC;

(d)  in relation to a draft Rule determination or final Rule determination—publish on the AEMC’s website and make available at the offices of the AEMC;

(e)  in relation to any submissions or comments received by the AEMC under this Chapter—subject to section 319, publish on the AEMC’s website and make available at the offices of the AEMC;

(f)  in relation to a report prepared under section 320—publish on the AEMC’s website and make available at the offices of the AEMC;

REMCo means the Retail Energy Market Company Ltd (ACN 103 318 556);

urgent Rule means a Rule relating to any matter or thing that, if not made as a matter of urgency, will result in that matter or thing imminently prejudicing or threatening—

(a)  the effective operation or administration of a regulated gas market operated and administered by AEMO; or

(b)  the supply of gas.

s 290: Am 2009 No 30, sec 38; 2009 No 46, sec 19; 2021 No 3, sec 52.

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 tha