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—
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 scheme pipeline;
access determination means a determination of the relevant adjudicator for an access dispute under Chapter 5 Part 5 and includes a determination varied under Part 6 of that 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 pipeline and includes a matter that is deemed to be an access dispute under the Rules;
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 Compliance Procedures and Guidelines has the meaning given by section 64F;
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 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);
AER trial waiver functions means the functions conferred on the AER under Chapter 2 Part 1 Division 1B;
AER wholesale market monitoring functions—the AER wholesale market monitoring functions are set out in section 30AC(1);
AER wholesale market reporting functions—the AER wholesale market reporting functions are set out in section 30AC(2);
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 an 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 decision of the AER under the Rules that—
(a)  approves or does not approve an access arrangement or revisions to an applicable access arrangement submitted to the AER under section 113 or the Rules; or
(b)  makes an access arrangement—
(i)  in place of an access arrangement the AER does not approve in that decision; or
(ii)  because a scheme pipeline service provider does not submit an access arrangement in accordance with section 113 or the Rules; or
(c)  makes revisions to an access arrangement—
(i)  in place of revisions submitted to the AER under section 113 that the AER does not approve in that decision; or
(ii)  because a scheme pipeline service provider does not submit revisions to the AER under section 113;
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 4;
associate pipeline service means a pipeline service provided by means of a pipeline other than a pipeline to which a greenfields incentive determination applies;
Australian Energy Market Operator or AEMO means Australian Energy Market Operator Limited (ACN 072 010 327);
bilateral trading agreement, for Chapter 2 Part 1 Division 1AA—see section 30AA;
BB Procedures means Procedures directed at regulating the Gas Bulletin Board;
biogas means a gas derived or recovered from organic matter other than fossilised organic matter;
biomethane means a substance—
(a)  that is in a gaseous state at standard temperature and pressure; and
(b)  the principal constituent of which is methane; and
(c)  that is produced by refining biogas; and
(d)  that is suitable for consumption;
blend processing facility means a facility for 1, or more, of the following—
(a)  the blending of 1 or more primary gases, with or without other substances, for injection into a pipeline;
(b)  the separation of a gas blend withdrawn from a pipeline into constituent gases before re-injection into a pipeline as—
(i)  a primary gas; or
(ii)  a gas blend;
blend processing service means a service provided by means of a blend processing facility;
blend processing service provider means a person who owns, operates or controls a blend processing facility;
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 Gas 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 means a decision of the AER under Chapter 3 Part 6 Division 1;
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 covered gas other than—
(i)  a facility operated as part of a gathering system operated as part of an upstream producing operation for processable gas; or
(ii)  anything downstream of a point on a pipeline from which a person takes covered 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;
covered gas means the following—
(a)  a primary gas;
(b)  a gas blend;
covered gas industry includes—
(a)  activities and transactions relating to the following—
(i)  processable gas;
(ii)  biogas;
(iii)  covered gas, including liquefied natural gas, and covered gas services;
(iv)  covered gas industry facilities;
(v)  services provided by means of covered gas industry facilities; and
(b)  activities and transactions relating to petroleum tenements; and
(c)  any other activity or transaction, or type of activity or transaction, specified by the Regulations for the purpose of this definition;
covered gas industry facility means the following—
(a)  a blend processing facility;
(b)  a compression service facility;
(c)  a gas processing plant;
(d)  an LNG facility;
(e)  a pipeline;
(f)  a storage facility;
(g)  a user facility;
(h)  another facility of a type specified by the Regulations for the purpose of this definition;
covered gas service means the following—
(a)  a pipeline service;
(b)  the supply of covered gas;
(c)  a service ancillary to the service described in paragraph (b);
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 covered gas defined in the application Act of an adoptive jurisdiction;
designated compression service facility means a facility or part of a facility for compressing covered 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 and includes an extension to, or expansion of the capacity of, the pipeline that is taken to be part of the pipeline under section 18;
Note—
A designated pipeline is a scheme pipeline. See the definition of scheme pipeline.
designated regulatory decision means an applicable access arrangement decision (other than a decision that does not approve an 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 pipeline and the capacity of a pipeline which would be available if a new facility was constructed, but does not include any new capacity of a pipeline resulting from an extension to the geographic range of a pipeline;
disposal, in relation to a right to use transportation capacity, includes disposal by means of—
(a)  transfer, sale, assignment, exchange or other disposal; and
(b)  the grant of a right to use, directly or indirectly, the transportation capacity;
Note—
See the definition of transfer.
dispute resolution body means the AER;
Note—
In Western Australia, under the National Gas Access (WA) Act 2009 of Western Australia, section 9, the dispute resolution body generally is the entity known as the Western Australian Energy Disputes Arbitrator.
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—
(a)  is classified as a distribution pipeline under a licence or authorisation granted in relation to the pipeline under jurisdictional gas legislation; or
(b)  if the licence or authorisation mentioned in paragraph (a) does not include a classification of the pipeline—is classified by the AER as a distribution pipeline,
and includes a pipeline that is reclassified by the AER as a distribution pipeline;
Note—
See Chapter 3 Part 6 in relation to the classification and reclassification of pipelines. See also sections 18 and 19.
distributor means, except where elsewhere defined in this Law, a service provider who owns, operates or controls a scheme pipeline that is a distribution pipeline;
draft Rule determination means a determination of the AEMC under section 308;
east coast gas system means the following, located wholly or partly within an east coast jurisdiction—
(a)  a covered gas industry facility;
(b)  a regulated gas market;
(c)  a gas trading exchange for which AEMO has established a gas trading exchange agreement;
(d)  a system, market or other thing specified by the Rules;
east coast gas system direction, for Part 6 Division 1A—see section 91AF(1);
East Coast Gas System Procedures, for Part 6 Division 1A—see section 91AD(1)(h);
east coast gas system reliability and supply adequacy functions of AEMO are set out in section 91AD;
east coast jurisdiction means a participating jurisdiction other than Western Australia;
ECA amendments means the amendments to this Law made by the Statutes Amendment (Energy Consumers Australia) Act 2014 of South Australia;
effective competition, for Chapter 2 Part 1 Division 1AA—see section 30AB;
end user means a person who acquires covered 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;
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;
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 a scheme pipeline is to be treated as forming part of the scheme 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 a scheme 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 scheme 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;
financial risk management product, for Chapter 2 Part 1 Division 1AA—see section 30AA;
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;
gas blend means primary gases that have been blended together;
Gas Bulletin Board means the website maintained by AEMO that contains information of the kind specified in the Rules for the covered gas industry;
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 contract, for Chapter 2 Part 1 Division 1AA—see section 30AA;
gas powered generator means the owner, controller or operator of a generating system, within the meaning of the National Electricity Rules, that is powered by covered gas;
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 covered gas or related goods or services, including a pipeline capacity right;
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 project means a project for the construction of—
(a)  a pipeline that is to be structurally separate from any existing pipeline; or
(b)  a major extension to an existing pipeline;
greenfields incentive determination has the meaning given by section 100;
greenfields price protection determination has the meaning given by section 109;
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 covered gas, includes conveyance or reticulation of covered gas;
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;
innovative trial principles—see section 24A;
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;
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;
local regulation means the regulations under the application Act of a participating jurisdiction;
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;
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;
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;
new facility means an extension to, or expansion of the capacity of, a pipeline which is to be treated as part of the 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 pipeline; or
(b)  under this Law;
Note—
See also sections 18 and 19.
non-scheme pipeline means a pipeline other than a scheme pipeline;
non-scheme pipeline access dispute means an access dispute that involves a non-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;
operative period, for a greenfields incentive determination, has the meaning given by section 102(2);
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 covered 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 covered 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 covered 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 for processable gas; or
(g)  any tanks, reservoirs, machinery, plant, facility or equipment used to remove or add components to or change covered gas (other than odourisation facilities) such as a gas processing plant or blend processing facility; or
(h)  anything downstream of a point on a pipeline from which a person takes covered gas for consumption purposes;
(i)  in relation to a blend processing facility—anything from the point on a pipeline from which covered gas is taken for blend processing to the point where the gas blend is injected into the pipeline or another pipeline;
Note—
See also sections 18 and 19.
pipeline capacity right means a right under a contract with a service provider to be provided with a pipeline service, by means of a pipeline, for a given quantity of covered gas over a given period of time;
pipeline classification criterion has the meaning given by section 13;
pipeline interconnection principles has the meaning given by section 136;
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 covered 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 covered 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; or
(b)  a service ancillary to the provision of a service referred to in paragraph (a),
but does not include—
(c)  the production of a primary gas, a processable gas or biogas; or
(d)  the sale or purchase of a covered gas, a processable gas or biogas; or
(e)  a blend processing service;
pipeline service standard means a standard relating to the standard of the pipeline services provided by a service provider 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;
primary gas means the following—
(a)  natural gas;
(b)  hydrogen;
(c)  biomethane;
(d)  synthetic methane;
(e)  a substance prescribed by the Regulations for the purpose of this definition;
(f)  a substance prescribed as a primary gas in a participating jurisdiction by a local regulation of the participating jurisdiction;
prescribed transparency information has the meaning given by section 136C;
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 1 or more primary gases;
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 AER under Chapter 3 Part 6 Division 2;
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 an access arrangement decision; or
(b)  determined by applying the formula or methodology contained in an applicable access arrangement approved or made under an 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 entity, for Part 6 Division 1A—see section 91AF(8);
relevant adjudicator means—
(a)  for a scheme pipeline access dispute—the dispute resolution body; or
(b)  for a non-scheme pipeline access dispute—the arbitrator for the dispute;
relevant agreement, for Chapter 2 Part 1 Division 1AA—see section 30AA;
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 covered 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, in relation to a pipeline service provided by means of a scheme pipeline, means the principles set out in section 24;
ring fencing decision means—
(a)  an AER ring fencing determination; or
(b)  a decision granting or not granting an exemption under Rules made under section 148A; 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 pipeline to which a scheme pipeline determination applies; or
(b)  a designated pipeline; or
(c)  a pipeline in respect of which a scheme pipeline election takes effect;
Note—
However, see section 99 in relation to when a pipeline the subject of a scheme pipeline revocation determination ceases to be a scheme pipeline.
scheme pipeline access dispute means an access dispute that involves a scheme pipeline;
scheme pipeline determination has the meaning given by section 92(1);
scheme pipeline election has the meaning given by section 95;
scheme pipeline revocation determination means a determination made under section 97(1);
scheme pipeline service provider means a service provider who provides or intends to provide pipeline services by means of a scheme pipeline;
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 covered 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.
small shipper has the meaning given by section 8AB;
South Australian Minister means the Minister of the Crown in right of South Australia administering Part 2 of the National Gas (South Australia) Act 2008 of South Australia;
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, biogas or covered gas (including liquefied natural gas) before or after processing, blending or separating;
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;
synthetic methane means a substance—
(a)  that is in a gaseous state at standard temperature and pressure; and
(b)  the principal constituent of which is methane; and
(c)  that is produced by the methanation of carbon dioxide; and
(d)  that is suitable for consumption;
tariff means a rate by which a charge for a pipeline service is calculated;
Territory means the Australian Capital Territory or the Northern Territory;
trader means a person who—
(a)  buys or sells covered gas; and
(b)  in doing so is not acting in some other registrable capacity; and
(c)  where the person is the purchaser of covered gas, is not buying the covered 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—
(a)  is classified as a transmission pipeline under a licence or authorisation granted in relation to the pipeline under jurisdictional gas legislation; or
(b)  if the licence or authorisation mentioned in paragraph (a) does not include a classification of the pipeline—is classified by the AER as a transmission pipeline,
and includes a pipeline that is reclassified by the AER as a transmission pipeline;
Note—
See Chapter 3 Part 6 in relation to the classification and reclassification of pipelines. 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 covered 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;
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;
trial project means a project—
(a)  that—
(i)  the AER is satisfied is genuinely innovative taking into account the innovative trial principles (in relation to a trial waiver for a trial project); or
(ii)  the AEMC is satisfied is genuinely innovative taking into account the innovative trial principles (in relation to a trial Rule for the purposes of a trial project); and
(b)  tests an approach in relation to covered gas services;
trial Rule—see section 290;
trial waiver—see section 30W;
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 pipeline; or
(b)  has a right under an access determination to be provided with a pipeline service by means of a pipeline;
user facility means a facility by means of which covered gas is consumed (including by transformation of the gas into a new form) and which is not any other form of covered gas industry facility;
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 gas market, for Chapter 2 Part 1 Division 1AA—see section 30AA;
wholesale gas market participant, for Chapter 2 Part 1 Division 1AA—see section 30AA;
wholesale market monitoring guidelines, for Chapter 2 Part 1 Division 1AA—see section 30AA;
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.
(3)  A reference in this Law to the east coast gas system includes a reference to part of the east coast gas system.
(4)  The Minister responsible for the administration of an application Act under which a regulation is made for paragraph (f) of the definition of primary gas must publish notice of the making of the regulation in the South Australian Government Gazette.
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; 2022 No 21, sec 12; 2022 No 22, sec 32; 2023 No 7, sec 4; 2023 No 36, sec 6; 2024 No 12, sec 13.
2A   Additives and impurities
The nature of a substance as a primary gas or a gas blend is not changed by the presence in the substance of the following—
(a)  an additive required for safety;
(b)  an impurity.
s 2A: Ins 2023 No 36, sec 7.
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 91FC(3) and (4)
2E
Section 91FEA
2F
Section 91LB(1)
2G
Section 91MB(6)
3
Section 131
4
Section 133
5
  (Repealed)
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
  (Repealed)
15
  (Repealed)
16
  (Repealed)
17
  (Repealed)
18
Section 223
19
Section 225
s 3: Am 2009 No 30, sec 7; 2009 No 46, sec 5; 2022 No 21, sec 13.
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
  (Repealed)
3
Section 135
4
Section 136
5
Section 147
6
Section 148
7
  (Repealed)
s 4: Am 2009 No 30, sec 8; 2009 No 46, sec 6; 2022 No 21, sec 14.
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 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 pipeline other than a pipeline service already provided to them under—
(a)  a contract; or
(b)  an access determination.
s 5: Am 2022 No 21, sec 15.
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 any part of a pipeline.
Note—
A service provider must not provide a pipeline service by means of a pipeline unless the service provider is a legal entity of a specified kind: see section 131.
(2)  If AEMO controls or operates (without at the same time owning) a pipeline or any part of a 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; 2022 No 21, sec 16.
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.
8AB   Meaning of small shipper
(1)  A small shipper is a user or prospective user—
(a)  who is, or seeks to be, a party to a contract with a service provider for the provision of a pipeline service by means of a pipeline; and
(b)  for whom the total daily pipeline capacity right provided, or sought to be provided, under 1 or more contracts with the same service provider and by means of the same pipeline is not more than—
(i)  the daily pipeline capacity right prescribed for this definition by the Regulations; or
(ii)  if no daily pipeline capacity right is prescribed by the Regulations, the lesser of the following amounts—
(A)  5 terajoules per day;
(B)  20% of the pipeline’s nameplate rating.
(2)  However, a small shipper does not include a corporation with a market capitalisation of more than $500 000 000 or a related body corporate of the corporation.
Note—
See also section 19A in relation to related bodies corporate.
(3)  In this section—
nameplate rating, in relation to a pipeline, means the maximum daily capacity of the pipeline under normal operating conditions.
s 8AB: Ins 2022 No 21, sec 17.
8A   Nominated distributors
(1)  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 scheme 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. Am 2022 No 21, sec 18; 2023 No 36, sec 8.
9   Passive owners of pipelines deemed to provide or intend to provide pipeline services
(1)  This section applies to a person who owns a 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.
s 9: Am 2022 No 21, sec 19.
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 covered gas industry facility (or part of a covered 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 201, 202, 204, 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 covered gas industry facility—own, control or operate the covered gas industry facility (or part of the facility).
s 10: Am 2018 No 23, sec 6; 2022 No 3, sec 5; 2023 No 36, sec 9.
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 covered gas, on a commercial basis.
s 12: Am 2023 No 36, sec 10.
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;
(i)  the type of pipeline licence or authorisation that has been obtained in respect of the pipeline under jurisdictional gas legislation.
s 13: Am 2022 No 21, sec 20.
14   Local regulations may exempt pipeline
(1)  A local regulation may declare a pipeline, or a proposed pipeline, to be a remote pipeline if the pipeline—
(a)  is, or will be, hauling covered gas other than natural gas or a natural gas equivalent, as defined in the National Energy Retail Law; and
(b)  is, or will be, wholly within the jurisdiction for which the regulation is made; and
(c)  is not, or will not be, interconnected in any way with the system of transmission pipelines and distribution pipelines used to convey gas within and between participating jurisdictions.
(2)  A remote pipeline, and the service provider for the pipeline (but only in respect of the remote pipeline) is exempt from the following—
(a)  section 91DB;
(b)  Chapter 3;
(c)  Chapter 4;
(d)  Chapter 5;
(e)  section 223;
(f)  Chapter 7A.
(3)  Before recommending the making of a local regulation declaring a pipeline or a proposed pipeline to be a remote pipeline, the responsible Minister of the participating jurisdiction must have regard to the national gas objective.
(4)  A pipeline or a proposed pipeline ceases, with immediate effect, to be a remote pipeline if—
(a)  1 or more of the requirements in subsection (1) ceases to apply to the pipeline; or
(b)  the local regulation declaring the pipeline to be a remote pipeline is repealed.
s 14: Rep 2022 No 21, sec 21. Ins 2023 No 36, sec 11.
15   (Repealed)
s 15: Rep 2022 No 21, sec 21.
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 covered gas service provided by a service provider and any other covered gas service provided by the service provider;
(c)  the presence and extent of any network externalities (that is, interdependencies) between a covered 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)    (Repealed)
s 16: Am 2022 No 21, sec 22; 2023 No 36, sec 12.
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 scheme pipeline, each part of the scheme 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 scheme 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 scheme pipelines, those pipelines must be taken to be a single scheme pipeline for the purposes of this Law.
s 17: Am 2022 No 21, sec 23.
18   Certain extensions to, or expansion of the capacity of, pipelines to be taken to be part of a scheme pipeline
(1)  Subsection (2) applies in relation to an extension to a scheme 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 scheme pipeline as extended.
(2)  For the purposes of this Law—
(a)  the extension to the scheme pipeline must be taken to be part of the scheme pipeline; and
(b)  the pipeline as extended must be taken to be a scheme pipeline.
(3)  Also, for the purposes of this Law—
(a)  an expansion of the capacity of a scheme pipeline must be taken to be part of the scheme pipeline; and
(b)  the pipeline as expanded must be taken to be a scheme pipeline.
s 18: Subst 2022 No 21, sec 24.
19   Expansions of the capacity of non-scheme pipelines to be taken to be part of non-scheme pipeline
For the purposes of this Law—
(a)  an expansion of the capacity of a non-scheme pipeline must be taken to be part of the non-scheme pipeline; and
(b)  the pipeline as expanded must be taken to be a non-scheme pipeline.
s 19: Subst 2022 No 21, sec 24.
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 South Australian Minister; 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; 2022 No 21, sec 25.
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, covered gas services for the long term interests of consumers of covered gas with respect to—
(a)  price, quality, safety, reliability and security of supply of covered gas; and
(b)  the achievement of targets set by a participating jurisdiction—
(i)  for reducing Australia’s greenhouse gas emissions; or
(ii)  that are likely to contribute to reducing Australia’s greenhouse gas emissions.
Note—
The AEMC must publish targets in a targets statement: see section 72A.
s 23: Am 2023 No 26, sec 14; 2023 No 36, sec 13.
23A   Regulations may prescribe matters for national gas objective
Without limiting Part 3 of the National Gas (South Australia) Act 2008 of South Australia, the Regulations may make provision about a matter relating to the achievement of targets mentioned in section 23(b) of this Law.
s 23A: Am 2023 No 26, sec 15.
Division 2 Revenue and pricing principles relating to scheme pipelines
ch 1, pt 3, div 2, hdg: Am 2022 No 21, sec 26.
24   Revenue and pricing principles relating to scheme pipelines
(1)  The revenue and pricing principles that apply in relation to a pipeline service provided by means of a scheme pipeline are the principles set out in subsections (2) to (7).
(2)  A scheme pipeline 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 scheme pipeline 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)  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 scheme pipeline 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 scheme pipeline service provider provides pipeline services.
s 24: Am 2022 No 21, sec 27.
Division 2A Innovative trial principles
ch 1, pt 3, div 2A: Ins 2022 No 22, sec 33.
24A   Innovative trial principles
The following principles (the innovative trial principles) must be taken into account in determining whether a trial project is genuinely innovative in connection with granting a trial waiver or making a trial Rule relating to a trial project—
(a)  whether the trial project is focused on developing new or materially improved covered gas services;
(b)  whether the trial project is likely to contribute to the achievement of the national gas objective;
(c)  whether the trial project is able to demonstrate a reasonable prospect of giving rise to materially improved services and outcomes for consumers of covered gas;
(d)  whether the trial project maintains adequate consumer protections, including whether the trial project may involve risks to consumers and (if so), how those risks might be mitigated;
(e)  whether the trial project is unable to proceed under the existing regulatory framework;
(f)  whether the trial project has moved beyond research and development stages but is not yet established, or of sufficient maturity, size or otherwise commercially ready, to attract investment;
(g)  whether the trial project may negatively impact AEMO's operation of systems relating to covered gas (including AEMO's performance of its declared system functions), and markets and auctions for covered gas and, if there are impacts, how those impacts can be mitigated;
(h)  whether the trial project may impact on competition in a competitive sector of a market for covered gas;
(ha)  whether the licences, authorisations and consents required for the trial project under jurisdictional gas legislation have been obtained or will be obtained;
(i)  any other principle prescribed by the Regulations.
s 24A: Ins 2022 No 22, sec 33. Am 2023 No 36, sec 14.
pt 5 (s 26A): Ins 2011 No 7, sec 53.
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
(ba)  without limiting paragraphs (a) and (b), in relation to a person undertaking a trial project under a trial Rule or trial waiver, to monitor the conduct and outcomes of the trial project and investigate breaches or possible breaches by the person of—
(i)  this Law, the Regulations and the Rules; and
(ii)  in particular—
(A)  in the case of a person undertaking a trial project under a trial Rule—the trial Rule and any requirements imposed by the AEMC under section 314B; and
(B)  in the case of a person undertaking a trial project under a trial waiver—the trial waiver and any conditions to which the trial waiver is subject; 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
(daa)  to make—
(i)  scheme pipeline determinations; and
(ii)  scheme pipeline revocation determinations; and
(iii)  greenfields incentive determinations; and
(iv)  greenfields price protection determinations; and
(dab)  to monitor service providers’ behaviour in relation to particular matters, including, for example, the prices charged by service providers for pipeline services; 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
(eb)  the AER trial waiver functions; and
(f)  to prepare and publish reports on the financial and operational performance of service providers in providing pipeline services by means of scheme pipelines; and
(fa)  in relation to goods or services in the covered 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
(ga)  AER wholesale market monitoring functions and AER wholesale market reporting functions; 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; 2022 No 21, sec 28; 2022 No 22, sec 34; 2023 No 36, sec 15; 2024 No 12, sec 14.
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 scheme 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”.
(4)  In this section—
user or consumer association means an association or body (whether incorporated or unincorporated)—
(a)  the members of which include more than 1 user, prospective user or end user; and
(b)  that represents and promotes the interests of those members in relation to the provision of covered gas services;
user or consumer interest group means an association or body (whether incorporated or unincorporated)—
(a)  that has, as an object or purpose, the object or purpose of representing and promoting the interests of users, prospective users or end users of covered gas services; but
(b)  the members of which need not include a user, prospective user or end user.
s 28: Am 2013 No 79, sec 20; 2021 No 3, sec 36; 2022 No 21, sec 29; 2023 No 36, sec 16.
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 1AA Wholesale gas markets—AER monitoring and reporting functions
ch 2, pt 1, div 1AA: Ins 2024 No 12, sec 15.
Subdivision 1 Preliminary
ch 2, pt 1, div 1AA, sdiv 1: Ins 2024 No 12, sec 15.
30AA   Definitions
In this Division—
bilateral trading agreement means an agreement, entered into outside a wholesale gas market, to supply covered gas—
(a)  to a wholesale gas market participant; or
(b)  to an end user—
(i)  other than by a retailer; or
(ii)  by a retailer in a quantity exceeding the amount prescribed by the wholesale market monitoring guidelines;
effective competition has the meaning given by section 30AB;
financial risk management product means a contract or other arrangement, entered into by a wholesale gas market participant, to manage financial risk including, without limitation, risks associated with the following—
(a)  volatility in the price for 1 or more covered gases in a wholesale gas market;
(b)  volatility in supply and demand in a wholesale gas market;
(c)  volatility in the price of services involved in the extraction, refinement or processing, transportation or storage of 1 or more covered gases;
gas contract means an agreement, entered into by a wholesale gas market participant, however described and whether coming into existence before or after the commencement of this section that relates to 1 or more of the following—
(a)  the supply of covered gas;
(b)  the purchase of covered gas;
(c)  the transportation of covered gas;
(d)  the storage of covered gas;
(e)  the refining or processing, including compression and blending, of covered gas;
(f)  relating to emissions produced or avoided in the extraction, refining or processing, supply or use of covered gas;
(g)  a function or process prescribed by the Regulations or the Rules;
relevant agreement means the following—
(a)  a bilateral trading agreement;
(b)  a financial risk management product;
(c)  a gas contract;
wholesale gas market means—
(a)  a wholesale market for covered gas, regulated under this Law and the Rules, including the following—
(i)  a declared wholesale gas market;
(ii)  a short term trading market;
(iii)  a gas trading exchange; or
(b)  a wholesale market for the transportation or storage of covered gas including a capacity auction; or
(c)  a wholesale market prescribed by the Regulations;
wholesale gas market participant means person who is 1 or more of the following—
(a)  a person who is registered on the Gas Bulletin Board;
(b)  a person who supplies covered gas to or withdraws covered gas from a gas trading exchange administered by AEMO;
(c)  a Registered participant;
(d)  a member of a class of persons prescribed by the Regulations or the Rules;
wholesale market monitoring guidelines means the guidelines prepared under section 30AT.
s 30AA: Ins 2024 No 12, sec 15.
30AB   Meaning of effective competition
For the purposes of this Division, the AER must, in assessing whether there is effective competition within a wholesale gas market, have regard to—
(a)  whether—
(i)  there are active competitors in the market and whether those competitors hold a reasonably sustainable position in the market; or
(ii)  there is merely the threat of competition in the market; and
(b)  whether prices are determined on a long term basis by underlying costs rather than the existence of market power, even though a wholesale gas market participant may hold a substantial degree of market power from time to time; and
(c)  whether barriers to entry into the market are sufficiently low so that a substantial degree of market power may only be held by a wholesale gas market participant on a temporary basis; and
(d)  whether there is independent rivalry in all dimensions of the price, product or service offered in the market; and
(e)  other matters the AER considers relevant.
s 30AB: Ins 2024 No 12, sec 15.
30AC   AER wholesale market monitoring and reporting functions
(1)  The AER wholesale market monitoring functions are as follows—
(a)  to, in accordance with this Law and the Rules, regularly and systematically monitor and review—
(i)  the performance of wholesale gas markets; and
(ii)  the operation and effect on wholesale gas markets of financial risk management products; and
(iii)  whether the availability of financial risk management products has an effect on competition within, and the efficient functioning of, wholesale gas markets; and
(iv)  bilateral trading agreements, including their effect on wholesale gas markets;
(b)  in connection with paragraph (a)—to identify and analyse whether, for a particular wholesale gas market—
(i)  there is effective competition within the market; and
(ii)  there are features of the market that may be detrimental to effective competition within the market; and
(iii)  there are features of the market that may be impacting detrimentally on the efficient functioning of the market and, if so, the extent of the inefficiency; and
(iv)  there are features of the market that may be impacting detrimentally on the achievement of the national gas objective; and
(v)  bilateral trading agreements have an impact on the efficient functioning of the market;
(c)  other monitoring or analysing functions, conferred on the AER by the Rules, relating to the following matters within a wholesale gas market—
(i)  offers;
(ii)  prices, including forecast and actual prices and bidding.
(2)  The AER wholesale market reporting functions are as follows—
(a)  to prepare, at least once every 2 years, a report on the performance of the AER wholesale market monitoring functions (a monitoring report);
(b)  to provide, as the AER thinks fit, advice to the MCE on the results of the performance of the AER wholesale market monitoring functions, including advice as to—
(i)  whether the results identify a need for a legislative, regulatory or other response to address systemic or other features of a wholesale gas market that may—
(A)  be detrimental to effective competition within the market; or
(B)  detrimentally impact on the efficient functioning of the market; and
(ii)  limitations on the AER’s ability to communicate with relevant persons about the performance of the AER wholesale market monitoring functions;
(c)  other reporting requirements, conferred on the AER by the Rules, relating to the AER wholesale market monitoring functions.
(3)  A monitoring report must, for a wholesale gas market monitored during the period to which the report relates—
(a)  be for a monitoring period of at least 5 years; and
(b)  contain a discussion and analysis of—
(i)  the results of the performance of the AER wholesale market monitoring functions for the relevant period; and
(ii)  features of the market with a detrimental impact on the efficient functioning of the market and the achievement of the national gas objective, including, but not limited to, significant barriers to entry; and
(iii)  the effect of bilateral trading agreements on the efficient functioning of the market; and
(iv)  structural features of the covered gas industry that generate concerns that there may not be effective competition within the market; and
(v)  inefficiencies in the market, their causes and whether conditions in the market are such that the inefficiencies are likely to impact detrimentally, in the long term, on the efficient functioning of the market; and
(vi)  the monitoring methodology applied and the results of indicators, tests and calculations performed; and
(vii)  other matters of a long term nature relevant to effective competition within the market, including, for example—
(A)  observations relating to planned increases in pipeline capacity; and
(B)  trends in demand for covered gases; and
(C)  trends in the uptake of alternative sources of energy.
(4)  The AER must publish a monitoring report on its website.
(5)  Before publishing a monitoring report the AER must consult with relevant stakeholders.
(6)  Despite subsection (3)(a), a report prepared within the 5 years after the commencement of this section must relate to the period commencing on the day this section commences.
s 30AC: Ins 2024 No 12, sec 15.
30AD   Information to be treated as confidential
Information obtained by the AER under this Division is taken to have been given to the AER in confidence, whether or not a claim of confidentiality is made.
s 30AD: Ins 2024 No 12, sec 15.
30AE   Redaction of information
(1)  When obtaining a relevant agreement or information about a relevant agreement for the purposes of a function under this Division, the AER must consider a request to omit information that would identify a party to the agreement who is not a wholesale gas market participant.
(2)  The AER must grant the request unless satisfied that omitting the information is likely to materially affect the AER’s ability to undertake 1 or more functions under this Division.
s 30AE: Ins 2024 No 12, sec 15.
Subdivision 2 Use of general information gathering powers
ch 2, pt 1, div 1AA, sdiv 2: Ins 2024 No 12, sec 15.
30AF   Limits on use of section 42 information gathering powers
(1)  In undertaking a function under this Division the AER must not use the powers under section 42 in respect of a relevant agreement that ceased to have effect more than 5 years before the commencement of this section.
(2)  The Regulations or the Rules may provide that the powers under section 42 must not be used for a function under this Division for 1 or more classes of relevant agreement.
s 30AF: Ins 2024 No 12, sec 15.
30AG   Matters to be considered before using section 42 information gathering powers
Before using the powers under section 42 for a function under this Division, the AER must—
(a)  be satisfied the information is reasonably required for the AER to carry out the function; and
(b)  consider whether the information—
(i)  is publicly available; or
(ii)  can be obtained by the AER in another way.
s 30AG: Ins 2024 No 12, sec 15.
Subdivision 3 Market monitoring information notices and market monitoring information orders
ch 2, pt 1, div 1AA, sdiv 3: Ins 2024 No 12, sec 15.
30AH   Definitions
In this Subdivision—
market monitoring information notice means a notice prepared and served by the AER in accordance with this Subdivision requiring the person named in the notice to do 1 or more of the following—
(a)  give the AER the information or a relevant agreement specified in the notice;
(b)  prepare, maintain and keep information specified in the notice in a manner and form specified in the notice;
market monitoring information order means an order made by the AER in accordance with this Subdivision requiring each person of a class specified in the order to do 1 or more of the following—
(a)  give the AER the information or a relevant agreement specified in the order;
(b)  prepare, maintain and keep information specified in the order in a manner and form specified in the order.
s 30AH: Ins 2024 No 12, sec 15.
30AI   Urgent notices and urgent orders
The AER may specify a market monitoring information notice or a market monitoring information order as urgent if the AER reasonably believes that access to the relevant information is time critical.
s 30AI: Ins 2024 No 12, sec 15.
30AJ   Content of notices and orders
(1)  A market monitoring information notice or a market monitoring information order must specify the following—
(a)  the information that must be prepared, maintained and kept;
(b)  the information or agreement that must be given to the AER;
(c)  if the notice or order requires information to be prepared, maintained and kept—the AER’s reasons for requiring information to be prepared, maintained and kept;
(d)  if the notice or order requires information or an agreement to be given to the AER—
(i)  the reasons the AER requires the information or agreement; and
(ii)  the date by which the information or agreement must be given to the AER;
(e)  the period in which the notice or order operates.
(2)  A market monitoring information notice or a market monitoring information order may specify the following—
(a)  the form in which information or an agreement is to be given to the AER;
(b)  the way the information or agreement is to be given to the AER.
s 30AJ: Ins 2024 No 12, sec 15.
30AK   Notices and orders may be made for both past and future information
(1)  A market monitoring information notice or a market monitoring information order may apply to 1 or more of the following—
(a)  a period before the notice was served or the order was made;
(b)  a period after the notice was served or the order was made.
(2)  A market monitoring information notice or a market monitoring information order must not be used to obtain a relevant agreement, or information about a relevant agreement, that ceased to have effect more than 5 years before the commencement of this section.
s 30AK: Ins 2024 No 12, sec 15.
30AL   Making and serving notices and orders
(1)  The AER may, if it considers it reasonably necessary for the performance of its functions under this Division—
(a)  serve a market monitoring information notice on a person named in the notice; and
(b)  make a market monitoring information order.
(2)  The AER must, when considering if it is reasonably necessary to serve a market monitoring information notice or make a market monitoring information order—
(a)  be satisfied the AER requires the information or agreement to carry out a wholesale market monitoring function; and
(b)  consider the costs that are likely to be incurred by a person responding to the notice or order; and
(c)  consider whether the information—
(i)  is publicly available; or
(ii)  can be obtained by the AER in another way.
(3)  A market monitoring information notice or a market monitoring information order must not be used for the purpose of—
(a)  investigating a breach or possible breach of this Law, the Regulations or the Rules; or
(b)  commencing or conducting proceedings for a breach or possible breach of this Law, the Regulations or the Rules; or
(c)  commencing or conducting an appeal from a decision in proceedings for a breach or possible breach of this Law, the Regulations or the Rules; or
(d)  responding to an application for review of a decision of the AER under Chapter 8 Part 5.
(4)  A market monitoring information order must be made in accordance with the Rules.
(5)  The Regulations or the Rules may provide that a market monitoring information notice or a market monitoring information order must not be used to obtain the following—
(a)  1 or more classes of relevant agreement;
(b)  information about 1 or more classes of relevant agreement.
s 30AL: Ins 2024 No 12, sec 15.
30AM   AER must consult before making order
(1)  Before making a market monitoring information order, the AER must consult the public.
(2)  Consultation must be undertaken in accordance with the Rules.
s 30AM: Ins 2024 No 12, sec 15.
30AN   Publication of orders
The AER must publish a market monitoring information order on the AER’s website as soon as practicable after the order is made.
s 30AN: Ins 2024 No 12, sec 15.
30AO   Opportunity to be heard before notice served
(1)  Before serving a market monitoring information notice, the AER must give the person on whom the AER intends to serve the notice a draft of the notice and an opportunity to make a submission on the draft notice.
(2)  A draft notice must state—
(a)  whether the notice is to be issued as a standard notice or an urgent notice; and
(b)  for an urgent notice—the reasons the AER believes access to the relevant information is time critical.
(3)  A submission must be made—
(a)  for a standard notice—within the longer of the following—
(i)  20 business days after the draft notice is given to the person;
(ii)  the period stated in the notice; or
(b)  for an urgent notice—within the period stated in the draft notice, being at least 5 business days and not more than 10 business days after the draft notice is given to the person.
(4)  A submission made within the time periods provided for in subsection (3) must be considered by the AER before serving a market monitoring information notice on a person.
s 30AO: Ins 2024 No 12, sec 15.
30AP   Compliance with notice
(1)  A person who is named in and served with a market monitoring information notice must comply with the notice.
Note—
This section is a civil penalty provision.
(2)  If a market monitoring information notice names 2 or more related bodies corporate, a notice served on the holding company is taken to have been served on each of the named related bodies corporate.
s 30AP: Ins 2024 No 12, sec 15.
30AQ   Compliance with order
(1)  A person who is a member of a class of persons specified in a market monitoring information order must comply with the order.
Note—
This section is a civil penalty provision.
(2)  The AER may, by written notice, exempt a person from compliance with an order—
(a)  in whole or part; and
(b)  conditionally or unconditionally.
s 30AQ: Ins 2024 No 12, sec 15.
30AR   Certification of compliance by statutory declaration
(1)  The AER may direct the recipient of a market monitoring information notice or market monitoring information order to verify that the recipient’s response to the notice or order is accurate and comprehensive by way of a statutory declaration.
(2)  A direction may require the statutory declaration to be given by a named officer of the recipient or the holder of a specified office for the recipient.
(3)  A direction must be given in the relevant market monitoring information notice or market monitoring information order.
(4)  A failure to comply with a direction given under this section is taken to be a failure to comply with the relevant market monitoring information notice or market monitoring information order.
s 30AR: Ins 2024 No 12, sec 15.
30AS   Subdivision does not limit powers under Division 3
This Subdivision does not limit the operation of Division 3.
s 30AS: Ins 2024 No 12, sec 15.
Subdivision 4 Miscellaneous
ch 2, pt 1, div 1AA, sdiv 4: Ins 2024 No 12, sec 15.
30AT   Wholesale market monitoring guidelines
(1)  The AER must prepare guidelines about the following—
(a)  the scope of the AER wholesale market monitoring functions;
(b)  the collection of information for the purposes of this Division;
(c)  the publication and reporting of information under this Division.
(2)  Without limiting what may be included in wholesale market monitoring guidelines, the guidelines must include the following—
(a)  information about the things the AER proposes to consider in assessing—
(i)  effective competition in wholesale gas markets; and
(ii)  the effective functioning of wholesale gas markets;
(b)  a summary of the compliance obligations of persons who hold information;
(c)  the processes the AER proposes to adopt in requesting information, including processes designed to minimise the time and resources wholesale gas market participants will devote to responding to a request;
(d)  the type of information the AER expects to routinely request and how frequently it will request that information;
(e)  the type of information the AER does not expect to request;
(f)  classes of relevant agreements the AER does not expect to request;
(g)  the formats in which the AER expects information to be submitted;
(h)  a general outline of the way the AER will ensure that commercially sensitive information obtained for wholesale market monitoring functions is kept securely;
(i)  other matters prescribed by the Regulations or the Rules.
(3)  Before making wholesale market monitoring guidelines the AER must consult in accordance with the Rules.
(4)  Wholesale market monitoring guidelines must be—
(a)  made in accordance with the Rules; and
(b)  published on the AER website within 6 months after commencement of this section.
s 30AT: Ins 2024 No 12, sec 15.
30AU   Review of wholesale market monitoring powers
The MCE is to review the operation of this Division as soon as possible after the period of 4 years and 6 months after the commencement of this section.
s 30AU: Ins 2024 No 12, sec 15.
Division 1A Rate of return instrument
ch 2, pt 1, div 1A: Ins 2018 No 33, sec 15.
Subdivision 1 Preliminary
ch 2, pt 1, div 1A, sdiv 1: 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.
s 30A: 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.
s 30B: Ins 2018 No 33, sec 15.
30C   Rate of return instrument is binding on AER and scheme 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 scheme pipeline service provider in relation to a matter relevant to the performance or exercise of an AER economic regulatory function or power.
s 30C: Ins 2018 No 33, sec 15. Am 2022 No 21, sec 30.
Subdivision 2 Requirement to make rate of return instrument
ch 2, pt 1, div 1A, sdiv 2: 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.
s 30D: 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 scheme 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 scheme 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 scheme pipeline service provider calculate a rate of return or the value of imputation credits.
s 30E: Ins 2018 No 33, sec 15. Am 2022 No 21, sec 31.
Subdivision 3 Consultation requirements
ch 2, pt 1, div 1A, sdiv 3: 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.
s 30F: 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.
s 30G: 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.
s 30H: 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 covered 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.
s 30I: Ins 2018 No 33, sec 15. Am 2023 No 36, sec 17.
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.
s 30J: 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.
s 30K: 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.
s 30L: 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.
s 30M: Ins 2018 No 33, sec 15.
Subdivision 4 Publication, review and other matters
ch 2, pt 1, div 1A, sdiv 4: 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.
s 30N: 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.
s 30O: 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.
s 30P: 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 an access arrangement decision, is an AER economic regulatory function or power.
s 30Q: Ins 2018 No 33, sec 15. Am 2022 No 21, sec 32.
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.
s 30R: Ins 2018 No 33, sec 15.
Subdivision 5 Confidentiality of information
ch 2, pt 1, div 1A, sdiv 5: 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.
s 30S: 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.
s 30T: Ins 2018 No 33, sec 15.
Division 1B AER trial waiver functions
ch 2, pt 1, div 1B: Ins 2022 No 22, sec 35.
30U   Definitions
In this Division—
proponent—see section 30W(1).
s 30U: Ins 2022 No 22, sec 35. Am 2023 No 36, sec 18.
30V   Interpretative matters
(1)  The functions of the AER under this Division are the AER trial waiver functions.
(2)  This Division does not limit any other provision of this Law or the Rules that provides for an exemption from, or for the waiver of, compliance with this Law or the Rules.
s 30V: Ins 2022 No 22, sec 35.
30W   Trial waiver
(1)  Subject to this section, the AER may, on application by a person or body that proposes to undertake a trial project (a proponent), make a determination to grant the proponent an exemption (a trial waiver) from 1 or more of the following—
(a)  section 91BJ;
(b)  section 91BRD;
(c)  section 91BRR;
(d)  section 91LB;
(e)  the Rules, or a provision of the Rules.
(2)  Before making a determination to grant a trial waiver, the AER must have regard to the innovative trial principles and any matter required by the Rules.
(3)  An application for a trial waiver must be made in accordance with the Rules.
(4)  Nothing in this section operates to prevent the granting of an exemption in accordance with a rule made under section 148A.
s 30W: Ins 2022 No 22, sec 35. Am 2023 No 36, sec 19.
30X   Conditions of trial waiver
(1)  A trial waiver must be in writing and—
(a)  must be subject to any conditions required by the Rules; and
(b)  may be subject to any conditions the AER considers appropriate.
(2)  The AER may vary or revoke a condition of a trial waiver in accordance with the Rules.
s 30X: Ins 2022 No 22, sec 35.
30Y   Consultation on trial waiver
Before granting a trial waiver, the AER must—
(a)  comply with any requirements specified by the Rules; and
(b)  undertake consultation (including with the proponent) in accordance with the Rules.
s 30Y: Ins 2022 No 22, sec 35.
30Z   Publication etc of trial waiver
As soon as practicable after a trial waiver is made, a copy of the trial waiver must be published on the AER's website.
s 30Z: Ins 2022 No 22, sec 35.
30ZA   Duration of trial waiver
Subject to this Division, a trial waiver has effect from the day specified in the trial waiver and for the period (not exceeding 5 years) specified in the trial waiver.
s 30ZA: Ins 2022 No 22, sec 35.
30ZB   Extension of trial waiver
(1)  The AER may, in accordance with the Rules, extend the period for which a trial waiver granted under this Division has effect by a period determined by the AER (which cannot exceed the period prescribed by the Regulations).
(2)  Before granting an extension under subsection (1), the AER must have regard to the innovative trial principles and any matter required by the Rules.
(3)  An extension under subsection (1) must be in writing and must be published on the AER's website.
(4)  An extension under subsection (1) may only be granted once in respect of a trial waiver granted under this Division.
s 30ZB: Ins 2022 No 22, sec 35.
30ZC   Compliance with trial waiver
(1)  A proponent granted a trial waiver must comply with any conditions to which the trial waiver is subject.
(2)  If a proponent breaches subsection (1), the AER may—
(a)  revoke the trial waiver; or
(b)  vary or revoke a condition of, or impose further conditions on, the trial waiver.
(3)  Nothing in this section limits section 30ZD.
s 30ZC: Ins 2022 No 22, sec 35.
30ZD   Revocation of trial waiver
The AER may, in accordance with the Rules, revoke a trial waiver granted under this Division.
s 30ZD: Ins 2022 No 22, sec 35.
30ZE   Other matters
(1)  The AER must not grant a trial waiver if the AER reasonably considers—
(a)  that the trial project for which the trial waiver is sought is materially similar to a trial project—
(i)  for which a trial Rule has been made; or
(ii)  that is the subject of a request under section 295(1) for the making of a trial Rule; or
(b)  that the trial project is unlikely to be carried out.
(2)  The AER cannot grant itself a trial waiver.
s 30ZE: Ins 2022 No 22, sec 35.
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—
(aa)  the number of notices given under this section for the purposes of a function under Division 1AA;
(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; 2024 No 12, sec 16.
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;
related provider means a person who supplies a contributing service to a service provider.
s 43: Am 2022 No 21, sec 33.
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 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 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 service provider;
(d)  whether the service was previously supplied—
(i)  by the service provider; or
(ii)  directly or indirectly by an associate of the 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.
s 44: Am 2022 No 21, sec 34.
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 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; 2022 No 21, sec 35.
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 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; 2022 No 21, sec 36.
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 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 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; 2022 No 21, sec 37.
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 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 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 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 service provider under a contract, arrangement or understanding entered into with that 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 service provider.
s 49: Am 2022 No 3, sec 12; 2022 No 21, sec 38.
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.
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 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 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 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 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 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; 2022 No 21, sec 39.
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 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; 2022 No 21, sec 40.
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 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 covered 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; 2022 No 21, sec 41; 2023 No 36, sec 20.
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 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; 2022 No 21, sec 41.
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 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 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 service provider or the making of a rate of return instrument; and
(b)  the 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 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; 2022 No 21, sec 42.
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.
Division 4A Monitoring service providers
ch 2, pt 1, div 4A: Ins 2022 No 21, sec 43.
63A   AER must monitor service providers’ behaviour
The AER must regularly and systematically monitor the following matters—
(a)  the prices charged by service providers for pipeline services;
(b)  the non-price terms and conditions for pipeline services;
(c)  the financial information reported by service providers;
(d)  the outcomes of access negotiations;
(e)  service providers’ dealings with associates;
(f)  service providers’ compliance with ring fencing requirements;
(g)  the compliance of service providers with other requirements of this Law and the Rules.
s 63A: Ins 2022 No 21, sec 43.
63B   AER must report to MCE
(1)  At least every 2 years, the AER must report to the MCE on its work under this Division for the previous 2 years (the relevant period).
(2)  The MCE may issue a direction to the AER requiring the AER to include information in the report about a stated matter that relates to the AER’s performance or exercise of its functions or powers under Chapters 3 to 5.
(3)  The report must—
(a)  state how many service providers the AER monitored during the relevant period for the purposes of this Division; and
(b)  summarise the information obtained in relation to the matters mentioned in section 63A; and
(c)  state how the AER obtained information contained in the report; and
(d)  give an assessment of the behaviour of service providers in relation to the matters mentioned in section 63A; and
(e)  state the extent to which service providers have complied, or failed to comply, with their obligations under this Law, the Regulations and the Rules; and
(f)  include any information requested in a direction issued by the MCE under subsection (2).
(4)  As soon as practicable after giving a report to the MCE under this section, the AER must publish, on its website, a version of the report that—
(a)  contains aggregated information about each of the matters mentioned in section 63A; and
(b)  is not likely to result in the identification of a particular service provider.
s 63B: Ins 2022 No 21, sec 43.
Division 5 Service provider performance reports relating to scheme pipelines
ch 2, pt 1, div 5, hdg: Am 2022 No 21, sec 44.
64   Preparation of service provider performance reports relating to scheme pipelines
(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; 2022 No 21, sec 44.
Division 5A Compliance and performance
ch 2, pt 1, div 5A: Ins 2022 No 21, sec 45.
64A   References in this Division to service providers
In this Division, a reference to a service provider includes a reference to a person, other than a service provider, to whom Chapter 4, or a provision of Chapter 4, applies under section 130.
s 64A: Ins 2022 No 21, sec 45.
64B   Compliance audits by AER
For the purpose of assessing a service provider’s compliance with the requirements of this Law, the Regulations and the Rules, the AER may—
(a)  carry out compliance audits of any or all activities of the service provider; or
(b)  arrange for the carrying out by contractors or other persons of compliance audits on behalf of the AER of any or all activities of the service provider.
s 64B: Ins 2022 No 21, sec 45.
64C   Compliance audits by service providers
(1)  A service provider must, if required by the AER, carry out a compliance audit in connection with specified aspects of the activities of the service provider in relation to the service provider’s compliance with the requirements of this Law, the Regulations and the Rules.
(2)  If the AER requires a service provider to carry out a compliance audit under this section, the service provider may arrange for the audit to be carried out on its behalf by contractors or other persons, but the service provider remains responsible for the audit.
(3)  A service provider must, within a period specified by the AER, provide the AER with the results of a compliance audit carried out under this section.
Note—
Subsections (1) and (3) are civil penalty provisions.
s 64C: Ins 2022 No 21, sec 45.
64D   Carrying out of compliance audits
A compliance audit is to be carried out in accordance with the AER Compliance Procedures and Guidelines.
s 64D: Ins 2022 No 21, sec 45.
64E   Cost of compliance audits
(1)  The cost of conducting a compliance audit under section 64B is an amount to be determined in accordance with the AER Compliance Procedures and Guidelines and is recoverable by the AER from the service provider to whom the audit relates.
(2)  The cost of conducting a compliance audit under section 64C is to be borne by the service provider to whom the audit relates.
s 64E: Ins 2022 No 21, sec 45.
64F   AER Compliance Procedures and Guidelines
(1)  The AER must make procedures and guidelines (AER Compliance Procedures and Guidelines) in accordance with the Rules.
(2)  Without limiting subsection (1), the AER Compliance Procedures and Guidelines may provide guidance for service providers about the following matters—
(a)  compliance with the requirements of this Law, the Regulations and the Rules;
(b)  the carrying out of compliance audits, and the costs payable by service providers, under this Division.
(3)  The AER Compliance Procedures and Guidelines may include a statement of the AER’s compliance priorities.
(4)  The AER may amend the AER Compliance Procedures and Guidelines in accordance with the Rules.
(5)  The AER Compliance Procedures and Guidelines may form part of similar guidelines under this Law, the National Electricity Law or the National Energy Retail Law.
s 64F: Ins 2022 No 21, sec 45.
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.
72A   Targets statement for greenhouse gas emissions targets
(1)  The AEMC must prepare and maintain a document (the targets statement) stating the targets set by a participating jurisdiction mentioned in section 23(b).
(2)  If the MCE or a Minister of a participating jurisdiction gives a written direction to the AEMC to include a target in, or remove a target from, the targets statement, the AEMC must comply with the direction.
(3)  A Minister may give a written direction under subsection (2) only in relation to a target set by the Minister’s participating jurisdiction.
(4)  The AEMC must publish on its website—
(a)  the targets statement; and
(b)  each direction given under subsection (2).
(5)  In having regard to the national gas objective under this Law, the Regulations or the Rules with respect to the matters mentioned in section 23(b), a person or body must consider, as a minimum, the targets stated in the targets statement.
s 72A: Ins 2023 No 26, sec 16.
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 covered 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
(viia)  the reliability or adequacy of the supply of covered gas within the east coast gas system; 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)  any matter or thing related to, or necessary or expedient for, the purposes of a trial Rule, trial project or trial waiver; and
(aba)  the AER gas price reporting functions; and
(ac)  AEMO’s east coast gas system reliability and supply adequacy 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 22, sec 36; 2023 No 7, sec 5; 2023 No 36, sec 21.
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, 83AA   (Repealed)
s 83A: Ins 2017 No 23, sec 4. Subst 2022 No 21, sec 46. Rep 2023 No 36, sec 22.
s 83AA: Ins 2022 No 21, sec 46. Rep 2023 No 36, sec 22.
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 covered 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, blending or storage of covered gas;
(iii)  the measurement and allocation of deliveries or receipts of covered 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 covered gas;
(d)  a producer;
(da)  a blend processing service provider;
(e)  a storage provider;
(f)  any other person of a kind prescribed by the Regulations for the purposes of this subsection.
ss 83B: Ins 2018 No 23, sec 9. Am 2023 No 36, sec 23.
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 covered gas;
(d)  a producer;
(da)  a blend processing service provider;
(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; 2023 No 36, sec 24.
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   (Repealed)
s 88: Rep 2022 No 21, sec 47.
Part 4
89, 90  (Repealed)
ch 2, pt 4: Rep 2022 No 21, sec 48.
s 89: Rep 2022 No 21, sec 48.
s 90: Rep 2022 No 21, sec 48.
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 gas markets 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 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);
(ea)  the east coast gas system reliability and supply adequacy functions;
(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 Gas 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; 2023 No 7, sec 6; 2023 No 36, sec 25.
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 1A AEMO’s east coast gas system reliability and supply adequacy functions
ch 2, pt 6, div 1A: Ins 2023 No 7, sec 7.
91AD   AEMO’s east coast gas system reliability and supply adequacy functions
(1)  AEMO’s east coast gas system reliability and supply adequacy functions are as follows—
(a)  to monitor trends in the supply of, and demand for, covered gas in the east coast gas system and factors affecting, or that may potentially affect, the reliability or adequacy of the supply of gas within that system;
(b)  to identify and communicate actual or potential risks or threats to the reliability or adequacy of the supply of covered gas within the east coast gas system;
(c)  to report to and advise the MCE, including a member of the MCE, on matters relating to the reliability or adequacy of the supply of covered gas within the east coast gas system;
(d)  to publish information relating to the reliability or adequacy of the supply of covered gas within the east coast gas system;
(e)  to give directions to relevant entities to the extent AEMO considers necessary to maintain and improve the reliability or adequacy of the supply of covered gas within the east coast gas system;
(f)  to trade in covered gas or to purchase pipeline services or services provided by a compression service provider, blend processing service provider or a storage provider to the extent AEMO considers necessary to maintain and improve the reliability or adequacy of the supply of covered gas within the east coast gas system;
(g)  other functions conferred on AEMO by the Rules for the purposes of this section;
(h)  to make, amend or revoke Procedures (East Coast Gas System Procedures) relating to a function specified in paragraphs (a) to (g).
(2)  AEMO must not exercise the function specified in subsection (1)(f) unless AEMO is of the opinion that the trade or purchase is necessary to prevent, reduce or mitigate an actual or potential threat identified by AEMO in the exercise of the function specified in subsection (1)(b).
(3)  AEMO must, within 3 months after the commencement of this section—
(a)  prepare, in accordance with the Rules, guidelines relating to the exercise or performance of the functions specified in subsection (1)(e) and (f); and
(b)  publish the guidelines on its website.
(4)  The Regulations may specify the following—
(a)  the relationship between the operation of this Division, or a provision of this Division, and a law of a participating jurisdiction, in the event of an inconsistency;
(b)  the extent to which a relevant entity is or is not required to comply with an east coast gas system direction in circumstances where the direction is inconsistent with a law of a participating jurisdiction;
(c)  the extent to which an east coast gas system direction is not valid in circumstances where the direction is inconsistent with a law of a participating jurisdiction.
(5)  The Rules may specify the following—
(a)  the matters that AEMO may or must consider in determining there is or is not an actual or potential threat to the reliability or adequacy of the supply of covered gas within the east coast gas system;
(b)  the kinds of directions that AEMO may or may not give under this section;
(c)  the matters that AEMO may or must consider in determining whether to exercise a function specified in subsection (1)(e) or (f).
s 91AD: Ins 2023 No 7, sec 7. Am 2023 No 36, sec 26.
91AE   AEMO to account to relevant Minister for performance of east coast gas system reliability and supply adequacy functions
(1)  AEMO must, at the written request of a Minister of a participating jurisdiction that is an east coast jurisdiction, provide information about the performance of its east coast gas system reliability and supply adequacy functions in relation to that jurisdiction.
(2)  AEMO must, at the written request of the MCE, provide information about the performance of its east coast gas system reliability and supply adequacy functions in accordance with the request.
(3)  Protected information provided in response to a request under this section must be identified as such by AEMO at the time of providing the information.
(4)  No fee is to be charged for the provision of information under this section.
s 91AE: Ins 2023 No 7, sec 7.
91AF   AEMO’s power of direction—east coast gas system reliability and supply adequacy
(1)  AEMO may give a written direction (an east coast gas system direction) to a relevant entity for 1 or more of the following purposes—
(a)  to maintain and improve the reliability of the supply of covered gas within the east coast gas system;
(b)  to maintain and improve the adequacy of the supply of covered gas within the east coast gas system.
(2)  A direction must not be given under subsection (1) unless AEMO is of the opinion that the giving of the direction is necessary to prevent, reduce or mitigate an actual or potential threat identified by AEMO in the exercise of the function specified in section 91AD(1)(b).
(3)  Without limiting subsection (1), an east coast gas system direction may relate to 1 or more of the following—
(a)  the operation, maintenance or use of any equipment or installation;
(b)  the control of the flow of covered gas;
(c)  any other matter that may affect the reliability or adequacy of the supply of covered gas within the east coast gas system.
(4)  An east coast gas system direction 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.
(5)  A prohibition imposed by an east coast gas system direction may be either unconditional or subject to conditions stated in the direction.
(6)  A person to whom an east coast gas system direction applies must comply with the direction to the extent to which compliance is consistent with a law of a participating jurisdiction applying to the person.
(7)  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 an east coast gas system direction.
(8)  In this section—
relevant entity means the following, excluding a small customer—
(a)  a Registered participant;
(b)  an exempted participant;
(c)  a producer who injects covered gas into the east coast gas system;
(d)  a person who buys or sells covered gas in the east coast gas system;
(e)  a gas powered generator;
(f)  a storage provider whose storage facility is connected to the east coast gas system;
(g)  a person who provides pipeline, transport, compression or other related services in, into or out of the east coast gas system;
(h)  a person specified as a relevant entity by the Rules;
small customer means—
(a)  a small customer within the meaning of section 5(2) of the National Energy Retail Law; and
(b)  a relevant customer within the meaning of the Order made under section 43 of the Gas Industry Act 2001 of Victoria and published in the Victoria Government Gazette on 25 November 2008.
s 91AF: Ins 2023 No 7, sec 7. Am 2023 No 36, sec 27.
91AG   East Coast Gas System Procedures
(1)  The East Coast Gas System Procedures may deal with the following matters—
(a)  the matters specified by the Rules;
(b)  any other matter relevant to AEMO’s east coast gas system reliability and supply adequacy functions on which this Law or the Rules contemplate the making of Procedures.
(2)  The East Coast Gas System 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 relevant entities; and
(d)  may require a relevant entity to give an indemnity against injury, damage or loss arising from the entity’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.
(3)  AEMO must not, without the consent of the MCE, make East Coast Gas System Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.
(4)  The East Coast Gas System Procedures must not—
(a)  create an offence; or
(b)  provide for a criminal or civil penalty.
s 91AG: Ins 2023 No 7, sec 7.
91AH   Compliance with East Coast Gas System Procedures
(1)  AEMO and each person to whom the East Coast Gas System Procedures are applicable must comply with those Procedures.
(2)  If AEMO has reasonable grounds to suspect a breach of the East Coast Gas System 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 must 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 the decision on its website; and
(b)  give a copy of the decision and the reason for the decision 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 91AH: Ins 2023 No 7, sec 7.
Division 2 AEMO’s declared system functions
ch 2, pt 6, div 2: Ins 2009 No 30, sec 14.
Subdivision 1 Preliminary
ch 2, pt 6, div 2, sdiv 1: 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.
s 91B: 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 the covered gas industry in the adoptive jurisdiction;
(e)  to coordinate the interaction of producers, blend processing service providers, 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 covered gas or purchase pipeline services or services provided by a compression service provider, blend processing service provider or a storage provider—
(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.
s 91BA: Ins 2009 No 30, sec 14. Am 2023 No 7, sec 8; 2023 No 36, sec 28.
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.
s 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 covered 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 covered 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; 2023 No 36, sec 29.
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, sdiv 3: 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.
s 91BE: 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;
(aa)  a blend processing facility;
(b)  a storage facility;
(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.
s 91BF: Ins 2009 No 30, sec 14. Am 2023 No 36, sec 30.
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.
s 91BG: 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)  sections 163 to 166 and section 169(1)(b)(i), (iv) and (2) do not apply; and
(b)  any further changes necessary to adapt those provisions to the determination of a dispute under this Division.
s 91BH: Ins 2009 No 30, sec 14. Am 2022 No 21, sec 49.
Subdivision 4 Declared wholesale gas market
ch 2, pt 6, div 2, sdiv 4: 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 or blend processing service provider who injects covered gas into a declared transmission system or a declared distribution system; or
(c)  a storage provider whose storage facility is connected to the declared transmission system or a declared distribution system; or
(d)  a person who buys or sells covered gas in the declared wholesale gas market; or
(e)  a person classified by the Rules as a participant in the declared wholesale gas market.
s 91BI: Ins 2009 No 30, sec 14. Am 2023 No 36, sec 31.
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.
s 91BJ: 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.
s 91BK: Ins 2009 No 30, sec 14.
Subdivision 5 Wholesale Market Procedures
ch 2, pt 6, div 2, sdiv 5: Ins 2009 No 30, sec 14.
91BL   Wholesale Market Procedures
AEMO may, in accordance with the Rules, make Wholesale Market Procedures.
s 91BL: 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.
s 91BM: 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).)
s 91BN: Ins 2009 No 30, sec 14.
Subdivision 6 Ownership of gas in declared transmission system
ch 2, pt 6, div 2, sdiv 6: 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.
s 91BO: 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 or a declared distribution 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, be free from any mortgage, charge or encumbrance.
s 91BP: Ins 2009 No 30, sec 14. Am 2023 No 36, sec 32.
Subdivision 7 Immunity
ch 2, pt 6, div 2, sdiv 7: 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, or
(c)  in the case of AEMO—for failing to accept gas for injection into, or to make gas available for withdrawal from, a declared distribution system,
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.
s 91BQ: Ins 2009 No 30, sec 14. Am 2023 No 36, sec 33.
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.
s 91BR: Ins 2009 No 30, sec 14.
Division 2A Short term trading markets
ch 2, pt 6, div 2A: Ins 2009 No 46, sec 9.
Subdivision 1 Preliminary
ch 2, pt 6, div 2A, sdiv 1: 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.
s 91BRA: 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 covered 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.
s 91BRB: Ins 2009 No 46, sec 9. Am 2023 No 36, sec 34.
Subdivision 2 Short term trading markets
ch 2, pt 6, div 2A, sdiv 2: 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 covered gas to an STTM hub; or
(b)  a person who withdraws covered gas from an STTM hub; or
(c)  a person classified by the Rules as a participant in a short term trading market.
s 91BRC: Ins 2009 No 46, sec 9. Am 2023 No 36, sec 35.
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.
s 91BRD: 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.
s 91BRE: Ins 2009 No 46, sec 9.
91BRF   Title to gas
An STTM trading participant must not supply 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.
s 91BRF: Ins 2009 No 46, sec 9. Am 2023 No 36, sec 36.
91BRG   Gas supplied to STTM hub must meet quality specifications specified in the Rules
An STTM trading participant must not supply gas to an STTM hub that does not comply with the gas quality specifications specified in the Rules for that STTM hub and gas.
s 91BRG: Ins 2009 No 46, sec 9. Am 2023 No 36, sec 37.
Subdivision 3 STTM Procedures
ch 2, pt 6, div 2A, sdiv 3: Ins 2009 No 46, sec 9.
91BRH   STTM Procedures
AEMO may, in accordance with the Rules, make STTM Procedures.
s 91BRH: 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.
s 91BRI: 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).)
s 91BRJ: Ins 2009 No 46, sec 9.
Division 2B Gas trading exchanges
ch 2, pt 6, div 2B: 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 covered 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.
s 91BRK: Ins 2013 No 54, sec 7. Am 2023 No 36, sec 38.
91BRL   Gas trading exchange not to constitute a regulated gas market
A gas trading exchange is not a regulated gas market.
s 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 covered gas industry.
(2)  The gas statement of opportunities must include the following—
(a)  for each covered gas specified in the Rules, an assessment of—
(i)  medium to long term demand (including export demand) for the gas and for pipeline services; and
(ii)  supply and pipeline capacity to meet existing and foreseeable demand for the gas and pipeline services; and
(iii)  likely long term production or transmission constraints;
(b)  forecasts of the outlook for the covered gas industry over a 20 year planning horizon;
(c)  an assessment of likely long term shortfalls in natural gas reserves;
(d)  any other information required by the Rules.
s 91D: Ins 2009 No 30, sec 14. Am 2023 No 36, sec 39.
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 covered 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 2023 No 36, sec 40.
91DB   Information for the gas statement of opportunities
(1)  A person who has possession or control of information in relation to the covered 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 2009 No 30, sec 14. Am 2023 No 36, sec 41.
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 2009 No 30, sec 14.
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 2009 No 30, sec 14.
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 2009 No 30, sec 14.
91DF   GSOO Procedures
AEMO may, in accordance with the Rules, make GSOO Procedures.
s 91DF: Ins 2009 No 30, sec 14.
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 2009 No 30, sec 14.
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 2009 No 30, sec 14.
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
(ba)  an east coast gas system reliability and supply adequacy 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.
(4a)  Subsections (3) and (4) do not apply to an order or notice relating to an east coast gas system reliability and supply adequacy function.
(4b)  The Rules may specify a person, or class of persons, to whom an order or notice relating to an east coast gas system reliability and supply adequacy function may be issued.
(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. Am 2023 No 7, sec 9.
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.
(3)  Subsection (1) does not apply to an order relating to an east coast gas system reliability and supply adequacy function.
(4)  AEMO must, before making an order relating to an east coast gas system reliability and supply adequacy function—
(a)  consider the extent to which persons of the class to which the proposed order is addressed may make representations about the terms of the proposed order; and
(b)  invite those persons to make representations to the extent AEMO considers possible in the circumstances.
s 91FA: Ins 2009 No 30, sec 14. Am 2021 No 3, sec 41; 2023 No 7, sec 9.
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.
(4)  This section does not apply to a notice relating to an east coast gas system reliability and supply adequacy function.
s 91FB: Ins 2009 No 30, sec 14. Am 2023 No 7, sec 11.
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.
s 91FC: 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.
s 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;
(da)  a blend processing service provider;
(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).
ss 91FEA: Ins 2009 No 46, sec 11. Am 2023 No 36, sec 42.
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.
Subdivision 5 Declared wholesale gas market information
ch 2, pt 6, div 6, sdiv 5: Ins 2023 No 36, sec 43.
91FEJ   Information required to be given to AEMO
(1)  A person who has possession or control of information must give the information to AEMO if—
(a)  the information relates to the operation and administration of the covered gas industry; and
(b)  the information is necessary for AEMO to perform a declared system function under section 91BA(1)(c) or (d); and
(c)  the person is required by the Rules to give the information to AEMO.
(2)  The information must be given to AEMO in accordance with the Wholesale Market Procedures or the Rules.
(3)  does not apply if the person is exempt under the Rules from giving the information.
(4)  (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 91FEJ: Ins 2023 No 36, sec 43.
91FEK   Person cannot rely on duty of confidence to avoid compliance with obligation
A person must not refuse to comply with the requirement in section 91FEJ on the ground of any duty of confidence.
s 91FEK: Ins 2023 No 36, sec 43.
91FEL   Giving AEMO false or misleading information
A person must not give information to AEMO under this Subdivision that the person knows is false or misleading in a material particular.
s 91FEL: Ins 2023 No 36, sec 43.
91FEM   Immunity of persons giving information to AEMO
(1)  A person who gives information to AEMO under this Subdivision 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 maximum amount prescribed by the Regulations.
(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 91FEM: Ins 2023 No 36, sec 43.
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, adequacy or security of the supply of covered gas; or
(ii)  the safety, reliability, adequacy 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; 2023 No 7, sec 12; 2023 No 36, sec 44.
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;
(e)  a relevant entity (within the meaning of section 91AF).
s 91H: Ins 2009 No 30, sec 14. Am 2013 No 54, sec 8; 2018 No 23, sec 14; 2023 No 7, sec 13.
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.
s 91J: 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.
s 91JA: 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.
s 91JB: 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.
s 91JC: Ins 2009 No 30, sec 14.
Division 10 Immunity
ch 2, pt 6, div 10: 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.
s 91K: 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 covered 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—
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.
s 91KA: Ins 2009 No 30, sec 14. Am 2022 No 21, sec 50; 2023 No 36, sec 45.
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.
s 91KB: 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.
s 91KC: Ins 2009 No 30, sec 14.
Division 11 Other matters
ch 2, pt 6, div 11: 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 covered 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.
s 91KD: Ins 2009 No 46, sec 18. Am 2023 No 36, sec 46.
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)  A retail market for 1 or more covered gases 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. Am 2023 No 36, sec 47.
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)  blend processing service providers;
(d)  producers;
(e)  storage providers;
(f)  traders;
(g)  a class prescribed under the Regulations.
s 91LA: Ins 2009 No 30, sec 14. Am 2022 No 21, sec 51; 2023 No 36, sec 48.
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 Regulatory framework for pipelines
ch 3: Subst 2022 No 21, sec 52.
Part 1 Scheme pipeline determinations and scheme pipeline elections
ch 3, pt 1: Subst 2022 No 21, sec 52.
Division 1 Scheme pipeline determinations
ch 3, pt 1, div 1: Subst 2022 No 21, sec 52.
92   AER may make scheme pipeline determination
(1)  The AER may, on its own initiative or on the application of any person, make a determination that a non-scheme pipeline is a scheme pipeline (a scheme pipeline determination).
(2)  An application for a scheme pipeline determination must—
(a)  be made in accordance with the Rules; and
(b)  contain the information required by the Rules; and
(c)  be accompanied by the fee prescribed by the Regulations (if any); and
(d)  be dealt with in accordance with the Rules.
s 92: Subst 2022 No 21, sec 52.
93   Requirements for making, or not making, a scheme pipeline determination
(1)  A scheme pipeline determination or a decision not to make a scheme pipeline 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; and
(e)  if a scheme pipeline determination is made—specify the date the determination takes effect.
(2)  For subsection (1)(e), the date specified must be at least 6 months, but not more than 12 months, after the determination is made.
s 93: Subst 2022 No 21, sec 52.
94   Effect of scheme pipeline determination
A pipeline the subject of a scheme pipeline determination—
(a)  becomes a scheme pipeline when the scheme pipeline determination takes effect; and
(b)  continues to be a scheme pipeline while the scheme pipeline determination remains in effect.
s 94: Subst 2022 No 21, sec 52.
Division 2 Scheme pipeline elections
ch 3, pt 1, div 2: Subst 2022 No 21, sec 52.
95   Scheme pipeline elections
(1)  A service provider for a non-scheme pipeline may elect for the pipeline to be dealt with under this Law as a scheme pipeline (a scheme pipeline election).
(2)  A scheme pipeline election must be made in accordance with the Rules.
s 95: Subst 2022 No 21, sec 52.
96   Effect of scheme pipeline elections
(1)  A scheme pipeline election takes effect on a day, determined by the AER, that is at least 6 months, but not more than 12 months, after the AER receives the election.
(2)  However, if the AER does not make a determination under subsection (1), the scheme pipeline election takes effect on the day that is 12 months after the AER receives the election.
(3)  On the day a scheme pipeline election takes effect under this section, the non-scheme pipeline the subject of the scheme pipeline election becomes a scheme pipeline.
s 96: Subst 2022 No 21, sec 52.
Part 2 Scheme pipeline revocation determinations
ch 3, pt 2: Subst 2022 No 21, sec 52.
ch 3, pt 2, div 1, hdg: Rep 2022 No 21, sec 52.
ch 3, pt 2, div 1, sdiv 1, hdg: Rep 2022 No 21, sec 52.
ch 3, pt 2, div 1, sdiv 2, hdg: Rep 2022 No 21, sec 52.
ch 3, pt 2, div 1, sdiv 3, hdg: Rep 2022 No 21, sec 52.
ch 3, pt 2, div 2, hdg: Rep 2022 No 21, sec 52.
ch 3, pt 2, div 2, sdiv 1, hdg: Rep 2022 No 21, sec 52.
ch 3, pt 2, div 2, sdiv 2, hdg: Rep 2022 No 21, sec 52.
ch 3, pt 2, div 3, hdg: Rep 2022 No 21, sec 52.
ch 3, pt 2, div 4, hdg: Rep 2022 No 21, sec 52.
ch 3, pt 2, div 5, hdg: Rep 2022 No 21, sec 52.
ch 3, pt 2, div 6, hdg: Rep 2022 No 21, sec 52.
97   AER may make scheme pipeline revocation determination
(1)  The AER may, on its own initiative or on the application of any person, make a scheme pipeline revocation determination in relation to any scheme pipeline other than a designated pipeline.
(2)  An application for a scheme pipeline revocation determination must—
(a)  be made in accordance with the Rules; and
(b)  contain the information required by the Rules; and
(c)  be accompanied by the fee prescribed by the Regulations (if any); and
(d)  be dealt with in accordance with the Rules.
s 97: Subst 2022 No 21, sec 52.
98   Requirements for making, or not making, a scheme pipeline revocation determination
A scheme pipeline revocation determination or a decision not to make a scheme pipeline 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; and
(e)  if a scheme pipeline revocation determination is made—specify the date the determination takes effect.
s 98: Am 2009 No 30, sec 15. Subst 2022 No 21, sec 52.
99   Effect of scheme pipeline revocation determination
A pipeline the subject of a scheme pipeline revocation determination ceases to be a scheme pipeline when the scheme pipeline revocation determination takes effect.
s 99: Subst 2022 No 21, sec 52.
Part 3 Greenfields incentive determinations and greenfields price protection determinations
ch 3, pt 3: Subst 2022 No 21, sec 52.
Division 1 Greenfields incentive determinations
ch 3, pt 3, div 1: Ins 2022 No 21, sec 52.
100   AER may make greenfields incentive determination
(1)  The AER may, on the application of the service provider for a greenfields pipeline project, make a determination that the pipeline the subject of the greenfields pipeline project cannot become a scheme pipeline during the operative period for the determination (a greenfields incentive determination).
(2)  An application for a greenfields incentive determination—
(a)  cannot be made after the pipeline is commissioned; and
(b)  must be made in accordance with the Rules; and
(c)  must include a description of the pipeline that meets the requirements specified by the Rules; and
(d)  must contain the information required by the Rules; and
(e)  need not describe, or include details of, excluded infrastructure; and
(f)  must be accompanied by the fee prescribed by the Regulations (if any); and
(g)  must be dealt with in accordance with the Rules.
s 100: Subst 2022 No 21, sec 52.
101   Requirements for making, or not making, a greenfields incentive determination
(1)  A greenfields incentive determination or a decision not to make a greenfields incentive 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; and
(e)  if a greenfields incentive determination is made—specify the date the determination takes effect.
(2)  The AER may, in having regard to the matters mentioned in section 112, decide a period during which a greenfields incentive determination is to continue in operation that is less than 15 years.
(3)  If the AER decides a period under subsection (2), the greenfields incentive determination must also specify the period.
s 101: Subst 2022 No 21, sec 52.
102   Effect of greenfields incentive determination
(1)  A greenfields incentive determination takes effect on and from the date specified in the determination.
(2)  The period during which a greenfields incentive determination continues in force (the operative period) is—
(a)  if the AER decides a period under section 101(2) that is less than 15 years—that period; or
(b)  otherwise—15 years from the commissioning of the pipeline.
(3)  During the operative period, the pipeline the subject of the greenfields incentive determination cannot become a scheme pipeline.
(4)  An application for a scheme pipeline determination in relation to a pipeline to which a greenfields incentive determination applies can be made—
(a)  before the end of the operative period for the greenfields incentive determination; but
(b)  only if the scheme pipeline determination is to commence from, or after, the end of the operative period.
s 102: Subst 2022 No 21, sec 52.
103   Requirement for conformity between pipeline description and pipeline as constructed
(1)  Subject to this Part—
(a)  a greenfields incentive determination 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 determination does not apply 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 the pipeline required to be included in the application for the greenfields incentive determination made under section 100.
s 103: Subst 2022 No 21, sec 52.
104   Power of AER to amend pipeline description
(1)  The AER may, on application by the service provider for a pipeline to which a greenfields incentive determination applies, amend the relevant pipeline description.
(2)  An amendment cannot, however, be made under this section after the pipeline has been commissioned.
(3)  In deciding whether to make the amendment sought, the AER must have regard to the criteria that were relevant to the making of the greenfields incentive determination.
(4)  In this section—
relevant pipeline description means a description of the pipeline required to be included in the application for the greenfields incentive determination made under section 100.
s 104: Subst 2022 No 21, sec 52.
Division 2 Early termination of greenfields incentive determination
ch 3, pt 3, div 2: Ins 2022 No 21, sec 52.
105   Greenfields incentive determination may lapse
(1)  A greenfields incentive determination lapses if the pipeline to which it applies is not commissioned within 3 years after the determination takes effect.
(2)  The AER may, in a particular case, extend the 3 year period mentioned in subsection (1).
s 105: Subst 2022 No 21, sec 52.
106   Revocation by consent
The AER may, at the request of the service provider for the pipeline to which a greenfields incentive determination applies, revoke the determination.
s 106: Subst 2022 No 21, sec 52.
107   Revocation for misrepresentation
The AER may revoke a greenfields incentive determination on the ground that—
(a)  the applicant misrepresented a material fact on the basis of which the determination was made; or
(b)  the applicant failed to disclose material information that the applicant was required to disclose under this Chapter.
s 107: Subst 2022 No 21, sec 52.
108   Exhaustive provision for termination of greenfields incentive determination
A greenfields incentive determination does not terminate, and cannot be revoked, before the end of the operative period for the determination other than as provided for under this Part.
s 108: Subst 2022 No 21, sec 52.
Division 3 Greenfields price protection determinations
ch 3, pt 3, div 3: Ins 2022 No 21, sec 52.
109   AER may make greenfields price protection determination
(1)  The AER may, on the application of the service provider for a greenfields pipeline project, make a determination that prices and non-price terms and conditions for particular pipeline services provided by means of a pipeline that are specified in the determination are protected, in the manner provided for in the Rules, in any arbitration of an access dispute involving the pipeline (a greenfields price protection determination).
(2)  An application for a greenfields price protection determination—
(a)  cannot be made after the pipeline is commissioned; and
(b)  must be made in accordance with the Rules; and
(c)  must contain the information required by the Rules; and
(d)  must be dealt with in accordance with the Rules.
s 109: Subst 2022 No 21, sec 52.
110   Requirements for making, or not making, a greenfields price protection determination
(1)  The AER must not make a greenfields price protection determination unless—
(a)  the pipeline the subject of the determination is also the subject of a greenfields incentive determination; and
(b)  the AER is satisfied—
(i)  that—
(A)  the pipeline has been developed following a competitive process; and
(B)  the prices and non-price terms and conditions for pipeline services that will be made available to prospective users during the operative period for the greenfields price protection determination have been set as a result of that process; or
(ii)  that—
(A)  one or more form of regulation factors effectively constrained the exercise of market power by the service provider when the prices and non-price terms and conditions for pipeline services that will be made available to prospective users during the operative period for the greenfields price protection determination were determined; and
(B)  the making of the determination will, or is likely to, contribute to the achievement of the national gas objective.
(2)  For the purposes of subsection (1)(b)(i)(A), a pipeline is taken to have been developed following a competitive process if the AER is reasonably satisfied from the information provided to it by the applicant for the greenfields price protection determination that there was competition (whether formal or informal) to develop the pipeline between 2 or more prospective service providers that—
(a)  were not related bodies corporate of each other; and
(b)  did not include a related body corporate of the applicant
Example
Competition between prospective service providers could involve the service providers competing on the basis of—
(a)  different pipeline routes; or
(b)  an expansion of an existing pipeline and the development of a new pipeline.
(3)  A greenfields price protection determination or a decision not to make a greenfields price protection 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; and
(e)  if a greenfields price protection determination is made, specify—
(i)  the date the determination takes effect; and
(ii)  the operative period for the determination.
(4)  For subsection (3)(e)(ii), the operative period for a greenfields price protection determination—
(a)  is the period during which the prices and non-price terms and conditions specified in the determination will be made available to prospective users; but
(b)  cannot be longer than the operative period for the greenfields incentive determination relating to the pipeline.
s 110: Subst 2022 No 21, sec 52.
111   Effect of greenfields price protection determination
(1)  A greenfields price protection determination—
(a)  takes effect on and from the date specified in the determination; and
(b)  continues in operation for the operative period for the determination mentioned in section 110(4).
(2)  A greenfields price protection determination ends if the greenfields incentive determination to which the greenfields price protection determination relates ceases to apply to the pipeline.
s 111: Subst 2022 No 21, sec 52.
Part 4 Principles governing the making of particular determinations
ch 3, pt 4: Subst 2022 No 21, sec 52.
112   Principles governing the making of particular determinations
(1)  This section sets out principles that apply for the making of the following determinations (each a relevant determination) by the AER—
(a)  a scheme pipeline determination under Part 1 Division 1;
(b)  a scheme pipeline revocation determination under Part 2;
(c)  a greenfields incentive determination under Part 3.
(2)  In deciding whether to make a relevant determination, the AER must consider the effect of regulating the pipeline, to which the determination would apply, as a scheme pipeline or non-scheme pipeline on—
(a)  the promotion of access to pipeline services; and
(b)  the costs that are likely to be incurred by an efficient service provider; and
(c)  the costs that are likely to be incurred by efficient users and efficient prospective users; and
(d)  the likely costs of end users.
(3)  In doing so the AER—
(a)  must have regard to the national gas objective; and
(b)  must have regard to—
(i)  the form of regulation factors; and
(ii)  for a greenfields incentive determination—the extent to which the form of regulation factors or competition to develop the pipeline (whether formal or informal) between 2 or more unrelated prospective service providers will, or is likely to, pose an effective constraint on the exercise of market power in respect of services provided by means of the pipeline for the period the determination is in operation; and
Example
Competition between prospective service providers could involve the service providers competing on the basis of—
(a)  different pipeline routes; or
(b)  an expansion of an existing pipeline and the development of a new pipeline.
(c)  may have regard to any other matter it considers relevant, including, for example, any information it obtains in the course of performing its functions.
Example for paragraph (c)
The AER may have regard to information contained in a report made by a mediator in relation to an access dispute
(4)  For subsection (3)(b)(ii), prospective service providers are unrelated if the service providers—
(a)  are not related bodies corporate of each other; and
(b)  do not include a related body corporate of the applicant for the greenfields incentive determination.
s 112: Subst 2022 No 21, sec 52.
Part 5 Access arrangements for scheme pipelines
ch 3, pt 5: Subst 2022 No 21, sec 52.
Division 1 Submissions generally
ch 3, pt 5, div 1: Ins 2022 No 21, sec 52.
113   Submission of access arrangement or revisions to applicable access arrangement
A scheme pipeline service provider must submit to the AER, for approval by the AER under the Rules, an access arrangement or revisions to an applicable access arrangement, in relation to the pipeline services the service 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.
s 113: Subst 2022 No 21, sec 52.
Division 2 Provisions relating to applicable access arrangements
ch 3, pt 5, div 2: Ins 2022 No 21, sec 52.
114   Protection of certain pre-existing contractual rights
(1)  An applicable access arrangement must not have the effect of depriving a person of a relevant protected contractual right.
(2)  In this section—
relevant exclusivity right means an express contractual right that arose on or after 30 March 1995 that—
(a)  prevents a service provider supplying pipeline services to persons who are not parties to the contract; or
(b)  limits or controls a service provider’s ability to supply pipeline services to persons who are not parties to the contract,
but does not include a user’s contractual right to obtain a certain amount of pipeline services;
relevant protected contractual right means—
(a)  in the case of an applicable access arrangement approved under an applicable access arrangement decision—a right under a contract (other than a relevant exclusivity right) in force immediately before that access arrangement was submitted for approval under this Law; or
(b)  in the case of an applicable access arrangement made under an applicable access arrangement decision because—
(i)  an access arrangement was not submitted for approval as required under section 113—a right under a contract (other than a relevant exclusivity right) in force immediately before the date on which an access arrangement was required to be submitted for approval; or
(ii)  an access arrangement was not approved under an applicable access arrangement decision—a right under a contract (other than a relevant exclusivity right) in force immediately before the date on which that access arrangement was submitted for approval.
s 114: Subst 2022 No 21, sec 52.
115   Service provider may enter into agreement for access different from applicable access arrangement
Subject to sections 83C and 135, nothing in this Law is to be taken as preventing a service provider from entering into an agreement with a user or a prospective user about access to a pipeline service provided by means of a scheme pipeline that is different from an applicable access arrangement that applies to that pipeline service.
s 115: Subst 2022 No 21, sec 52.
116   Applicable access arrangements continue to apply regardless of who provides pipeline service
An applicable access arrangement applies to a pipeline service provided, or to be provided, by means of a scheme pipeline regardless of who provides that pipeline service.
s 116: Subst 2022 No 21, sec 52.
Part 6 Classification and reclassification of pipelines
ch 3, pt 6: Ins 2022 No 21, sec 52.
Division 1 Classification of pipelines
ch 3, pt 6, div 1: Ins 2022 No 21, sec 52.
117   Application for classification of pipeline
(1)  This section applies if a pipeline is not classified as a distribution or transmission pipeline under a licence or authorisation granted in relation to the pipeline under jurisdictional gas legislation.
(2)  Within 20 business days after the commissioning of the pipeline, the service provider for the pipeline must apply to the AER for the pipeline to be classified as a distribution pipeline or transmission pipeline.
(3)  An application for a classification decision must—
(a)  be made in accordance with the Rules; and
(b)  contain the information required by the Rules; and
(c)  be accompanied by the fee prescribed by the Regulations (if any); and
(d)  be dealt with in accordance with the Rules.
s 117: Am 2021 No 3, sec 43. Subst 2022 No 21, sec 52.
Division 2 Reclassification of pipelines
ch 3, pt 6, div 2: Ins 2022 No 21, sec 52.
118   Reclassification of pipelines
(1)  The AER may, on its own initiative or on the application of a service provider, make a decision for a 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)  An application for a reclassification decision must—
(a)  be made in accordance with the Rules; and
(b)  contain the information required by the Rules; and
(c)  be accompanied by the fee prescribed by the Regulations (if any); and
(d)  be dealt with in accordance with the Rules.
s 118: Subst 2022 No 21, sec 52.
Division 3 Provisions relating to classification and reclassification decisions
ch 3, pt 6, div 3: Ins 2022 No 21, sec 52.
119   Requirements for making classification or reclassification decisions
(1)  In making a classification decision or reclassification decision, the AER must have regard to—
(a)  the national gas objective; and
(b)  the pipeline classification criterion.
(2)  A classification decision or 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.
s 119: Subst 2022 No 21, sec 52.
120   Effect of classification decision or reclassification decision
On the making of a classification decision or reclassification decision, a pipeline is—
(a)  if the pipeline is classified or reclassified as a distribution pipeline—a distribution pipeline; or
(b)  if the pipeline is classified or reclassified as a transmission pipeline—a transmission pipeline.
s 120: Subst 2022 No 21, sec 52.
Part 7 AER reviews into designated pipelines
ch 3, pt 7: Ins 2022 No 21, sec 52.
121   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.
s 121: Subst 2022 No 21, sec 52.
122–129   (Repealed)
s 122: Rep 2022 No 21, sec 52.
s 123: Rep 2022 No 21, sec 52.
s 124: Rep 2022 No 21, sec 52.
s 125: Rep 2022 No 21, sec 52.
s 126: Rep 2022 No 21, sec 52.
s 127: Rep 2022 No 21, sec 52.
s 128: Rep 2022 No 21, sec 52.
s 129: Rep 2022 No 21, sec 52.
Chapter 4 General requirements for provision of pipeline services
ch 4, hdg: Am 2022 No 21, sec 53.
ch 4, pt A1: Ins 2022 No 21, sec 54.
Part A1 Preliminary
130   Application of this Chapter
(1)  This Chapter applies in relation to scheme pipelines and non-scheme pipelines.
(2)  Also, this Chapter, or a provision of this Chapter, applies to a person other than a service provider as if a reference in the Chapter or provision to a service provider were a reference to the person—
(a)  if—
(i)  this Chapter, or the provision, is prescribed by the Regulations for the purposes of this subsection; and
(ii)  the person—
(A)  is prescribed by the Regulations for the purposes of this subsection; or
(B)  is a member of a class of persons prescribed by the Regulations for the purposes of this subsection; and
(b)  subject to any modifications prescribed by the Regulations for the purposes of this subsection.
s 130: Subst 2022 No 21, sec 54.
Part 1 General duties for provision of pipeline services by pipelines
ch 4, pt 1, hdg: Am 2022 No 21, sec 55.
131   Service provider must be legal entity of a specified kind to provide pipeline services
A service provider must not provide a pipeline service by means of a 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 pipeline together with another person referred to in paragraph (a) to (d).
s 131: Am 2022 No 21, sec 56.
132   (Repealed)
s 132: Rep 2022 No 21, sec 57.
133   Preventing or hindering access
(1)  A person who is—
(a)  a 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 pipeline; or
(ii)  as a result of an access determination is entitled to a pipeline service provided by means of a 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 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 the following—
(i)  refusing to supply a pipeline service;
(ii)  without reasonable grounds, limiting or disrupting a pipeline service;
(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, 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.
s 133: Am 2022 No 21, sec 58.
134   (Repealed)
s 134: Rep 2022 No 21, sec 59.
135   Service provider must comply with queuing requirements
A service provider must comply with the queuing requirements of an applicable access arrangement or the Rules.
s 135: Subst 2022 No 21, sec 60.
136   Compliance with pipeline interconnection principles
Subject to section 91BF, a service provider must comply with the principles relating to the interconnection of pipelines and facilities (the pipeline interconnection principles) specified in the Rules.
s 136: Subst 2022 No 21, sec 61.
136A   Prohibition against increasing charges to subsidise particular development
(1)  This section applies to a service provider for a transmission pipeline, other than a pipeline within a declared transmission system.
(2)  The service provider must not increase a charge for a pipeline service payable by an existing user to the service provider to subsidise the development of an extension, or expansion of the capacity, of the pipeline.
(3)  However, subsection (2) does not apply to a service provider if the service provider is exempt from complying with subsection (2) under the Rules.
(4)  Nothing in this section prevents a service provider from charging an existing user of the service provider for pipeline services provided by means of an extension, or expansion of the capacity, of a pipeline.
s 136A: Ins 2022 No 21, sec 61.
136B   Prohibition on bundling of services
A service provider must not make it a condition of the provision of a particular pipeline service to a prospective user that the prospective user accept another service from the service provider unless the bundling of the services is reasonably necessary.
s 136B: Ins 2022 No 21, sec 61.
136C   Service providers must publish prescribed transparency information
(1)  A service provider must—
(a)  publish the information relating to pipelines and pipeline services specified in the Rules made for the purposes of this paragraph (the prescribed transparency information); and
(b)  ensure the prescribed transparency information is published in accordance with the Rules.
(2)  However, subsection (1) does not apply to a service provider if the service provider is exempt from complying with subsection (1) under the Rules.
s 136C: Ins 2022 No 21, sec 61.
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);
marketing staff has the meaning given by section 138;
related business means the following—
(a)  the provision of a blend processing service;
(b)  the business of producing primary gas, processable gas or biogas;
(c)  the business of purchasing or selling covered gas, processable gas or biogas, but does not include purchasing or selling covered gas, processable gas or biogas to the extent necessary—
(i)  for the safe and reliable operation of a pipeline; or
(ii)  to enable a service provider to provide balancing services in connection with a pipeline.
s 137: Am 2022 No 21, sec 62; 2023 No 36, sec 49.
138   Meaning of marketing staff
(1)  A person is marketing staff of—
(a)  a service provider, if the person—
(i)  is an officer, employee, consultant or independent contractor or agent of the 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 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 service provider, or an associate of a service provider, if—
(a)  the person’s function or role (as an officer, employee, consultant or independent contractor or agent of a service provider, or an associate of a 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 service provider, or an associate of a service provider).
Example—
A person in the position of general manager of marketing of a service provider or an associate of a service provider would be marketing staff whereas a person in the position of chief executive officer, or chief financial officer, of a service provider or an associate of a service provider would not be marketing staff
s 138: Am 2022 No 21, sec 63.
Division 2 Minimum ring fencing requirements
139   Carrying on of related businesses prohibited
A service provider must not carry on a related business.
s 139: Am 2022 No 21, sec 64.
140   Marketing staff and the taking part in related businesses
(1)  A service provider must ensure that none of its marketing staff are officers, employees, consultants, independent contractors or agents of an associate of the service provider that takes part in a related business.
(2)  A service provider must ensure that none of its officers, employees, consultants, independent contractors or agents are marketing staff of an associate of the service provider that takes part in a related business.
s 140: Am 2022 No 21, sec 65.
141   Accounts that must be prepared, maintained and kept
A service provider must prepare, maintain and keep—
(a)  separate accounts in respect of pipeline services provided by means of every pipeline owned, operated or controlled by the service provider; and
(b)  a consolidated set of accounts in respect of the whole of the business of the service provider.
s 141: Am 2022 No 21, sec 66.
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 service provider or associate of a 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 service provider (business unit A) is providing pipeline services to another part of the business of the service provider (business unit B), the 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 service provider is providing pipeline services to an associate of the service provider, the service provider must ensure that those services are provided as if the associate of the service provider were a separate unrelated entity;
(c)  users and prospective users should have sufficient information in order to understand whether a service provider is complying with paragraph (a) or (b).
(3)  The AER must—
(a)  notify, in writing, the service provider or associate named in the AER ring fencing determination of the making of that determination; and
(b)  give the 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 service provider or associate of a 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 service provider or associate of a service provider is given a copy of the AER ring fencing determination.
(6)  A service provider or associate of a service provider must comply with every additional ring fencing requirement specified in an AER ring fencing determination on and after the notified compliance date.
s 143: Am 2022 No 21, sec 67.
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 service provider; or
(b)  an efficient associate of a service provider,
in complying with an additional ring fencing requirement specified in the determination.
s 144: Am 2022 No 21, sec 68.
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 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 service provider to ensure that persons employed or engaged by the service provider in relation to the provision of pipeline services are not also associates, or employed by associates, of the 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 service provider to put in place electronic, physical and procedural security measures in respect of the offices and computer systems of the service provider, and of the offices and computer systems of its associates, so that certain specified employees or persons engaged by the 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.
s 145: Am 2022 No 21, sec 69.
Division 4 Associate contracts
ch 4, pt 2, div 4 (as originally enacted): Rep 2022 No 21, sec 70.
ch 4, pt 2, div 4 (previously Div 5): Renumbered 2022 No 21, sec 71.
146   
s 146: Rep 2022 No 21, sec 70.
147   Service provider must not enter into or give effect to associate contracts that have anti-competitive effect
A 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 covered gas services unless—
(d)  that associate contract is an approved associate contract; or
(e)  that provision is contained in an approved associate contract.
s 147: Am 2022 No 21, sec 72; 2023 No 36, sec 50.
148   Service provider must not enter into or give effect to associate contracts inconsistent with competitive parity rule
(1)  A 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 service provider must ensure that any pipeline services that the service provider provides to an associate of the service provider are provided to that associate as if that associate were a separate unrelated entity.
s 148: Am 2022 No 21, sec 73.
Division 5 Exemptions from particular requirements
ch 4, pt 2, div 5: Renumbered as Div 4, 2022 No 21, sec 71.
ch 4, pt 2, div 5: Ins 2022 No 21, sec 74.
148AA   Exemptions from section 147(c)
(1)  Section 147(c) does not prevent a service provider from giving effect to a provision of an associate contract if the contract is for an associate pipeline service, and—
(a)  if the associate pipeline service relates to 1 or more types of relevant covered gas—the provision was entered into before the commencement of the Statutes Amendment (National Energy Laws) (Other Gases) Act 2023; or
(b)  if the associate pipeline service relates to 1 or more types of prescribed primary gas—the provision was entered into before the gas became a prescribed primary gas; or
(c)  if the associate pipeline service relates to a blend of prescribed primary gases—the provision was entered into before any of the gases became a prescribed primary gas.
(2)  In this section—
prescribed primary gas means a gas—
(a)  prescribed by the Regulations for the purpose of paragraph (e) of the definition of primary gas; or
(b)  prescribed by a local regulation for the purpose of paragraph (f) of the definition of primary gas;
relevant covered gas means the following—
(a)  biomethane;
(b)  hydrogen;
(c)  synthetic methane;
(d)  a gas blend.
s 148AA: Ins 2023 No 36, sec 51.
148A   Exemptions from particular requirements
(1)  The Rules may provide for exemptions from the requirements under section 139, 140, 141, 147 or 148.
(2)  An exemption may be given subject to conditions.
(3)  Without limiting the conditions that may be imposed under subsection (2), an exemption may be given subject to conditions requiring a service provider to—
(a)  ensure that its business and business activities are conducted, structured and arranged in the particular manner specified in the exemption; or
(b)  disclose, in the manner specified in the exemption, to the AER and to the public, specified information about its business activities, operations, structure and arrangements.
s 148A: Ins 2022 No 21, sec 74. Subst 2023 No 36, sec 51.
Part 3 Negotiation of access
ch 4, pt 3: Ins 2022 No 21, sec 74.
148B   Definition
In this Part—
relevant pipeline service means a pipeline service provided, or to be provided, by means of a pipeline and includes a pipeline service provided, or to be provided, by an extension to, or expansion of the capacity of, a pipeline.
s 148B: Ins 2022 No 21, sec 74.
148C   Access proposals
A service provider must comply with the Rules relating to access to a relevant pipeline service made for the purposes of this section.
s 148C: Ins 2022 No 21, sec 74.
148D   Duty to negotiate in good faith
A user or prospective user seeking access to a relevant pipeline service and the service provider for the service must negotiate in good faith with each other about—
(a)  whether access can be granted to the user or prospective user; and
(b)  if access is to be granted—the terms and conditions for the provision of access to the user or prospective user.
s 148D: Ins 2022 No 21, sec 74.
Part 4 AER reviews about application of this Chapter
ch 4, pt 4: Ins 2022 No 21, sec 74.
148E   AER reviews about application of this Chapter
(1)  The MCE may request the AER to conduct a review into, and report to it as to, whether this Chapter, or a provision of this Chapter, should apply to any person or class of persons to whom the Chapter or provision does not currently apply.
(2)  A request under subsection (1) must be in writing.
(3)  On receiving a request under this section, the AER must conduct the review.
(4)  In conducting a review under this section, the AER must—
(a)  have regard to—
(i)  the national gas objective; and
(ii)  the effect the application of this Chapter, or a provision of this Chapter, to another person or class of persons would have on—
(A)  the promotion of access to pipeline services and any other benefits that may be associated with the application; and
(B)  the costs that are likely to be incurred by the person or class of persons if they were operating efficiently; and
(b)  consult, in accordance with the Rules, with the public.
(5)  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.
s 148E: Ins 2022 No 21, sec 74.
Chapter 5 Access disputes
ch 5: Subst 2022 No 21, sec 75.
Part 1 Interpretation and application
ch 5, pt 1: Subst 2022 No 21, sec 75.
149   Definitions
In this Chapter—
access dispute pipeline, in relation to an access dispute, means the pipeline the subject of the dispute;
dispute hearing means a hearing conducted by the relevant adjudicator for an access dispute for the purpose of making an access determination in relation to the dispute;
party, in relation to an access dispute, has the meaning given by section 154.
s 149: Subst 2022 No 21, sec 75.
150   Application of this Chapter to disputes arising under the Rules
(1)  The provisions of this Chapter applicable to the determination of an access dispute apply to the determination of any dispute arising under any provision of the Rules specified in the Rules for the purposes of this section.
(2)  This section applies subject to any modification of the provisions of this Chapter specified in the Rules.
s 150: Subst 2022 No 21, sec 75.
151   Chapter does not limit how disputes about access may be raised or dealt with
This Chapter does not limit how a dispute about access to a pipeline service may be raised or dealt with.
s 151: Subst 2022 No 21, sec 75.
Part 2 Notice of access dispute and other provisions
ch 5, pt 2: Subst 2022 No 21, sec 75.
Division 1 Notice of access dispute
ch 5, pt 2, div 1: Ins 2022 No 21, sec 75.
152   Notice of access dispute
(1)  This section applies if there is an access dispute between a user or prospective user and a service provider.
(2)  The user, prospective user or service provider may give a notice in writing to the following entity that the access dispute exists—
(a)  for a scheme pipeline access dispute—the dispute resolution body;
(b)  for a non-scheme pipeline access dispute—the AER.
(3)  A notice given under subsection (2) must—
(a)  include information about—
(i)  the matters (if any) on which agreement has been reached; and
(ii)  the matters that are in dispute; and
(iii)  any other matter specified by the Rules; and
(b)  be accompanied by—
(i)  if an access dispute is a scheme pipeline access dispute—the fee prescribed by the Regulations (if any); or
(ii)  if an access dispute is a non-scheme pipeline access dispute—the fee set by the AER from time to time and specified on the AER’s website; and
(c)  be given to any other party to any negotiations that gave rise to the dispute as soon as practicable after it is given to the dispute resolution body or AER; and
(d)  be dealt with in accordance with the Rules.
(4)  The user, prospective user, or service provider may not give a notice under subsection (2) if the dispute relates to a matter excluded from the operation of this Chapter by the Rules.
s 152: Subst 2022 No 21, sec 75.
153   Withdrawal of notice
Subject to the Rules, a notice given under section 152 may be withdrawn—
(a)  in accordance with the Rules; and
(b)  at any time before an access determination is made in relation to the dispute.
s 153: Subst 2022 No 21, sec 75.
Division 2 Parties to an access dispute
ch 5, pt 2, div 2: Ins 2022 No 21, sec 75.
154   Parties to an access dispute
(1)  The parties to an access dispute are—
(a)  the parties to any negotiations that gave rise to the access dispute; and
(b)  if the dispute resolution body or AER (as the case requires) 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; and
(c)  if a small shipper is a party and has elected, in accordance with the Rules, for a user association to be joined as a party—the user association; and
(d)  if the access dispute is a scheme pipeline access dispute—any other person who applies in writing, in accordance with the Rules, to be made a party and is accepted by the dispute resolution body as having a sufficient interest.
(2)  In this section—
user association means an association or body, whether incorporated or not—
(a)  the members of which include more than 1 user or prospective user; and
(b)  that represents and promotes the interests of those members in relation to the provision of pipeline services.
s 154: Subst 2022 No 21, sec 75.
Part 3 Alternative dispute resolution for access disputes
ch 5, pt 3: Subst 2022 No 21, sec 75.
Division 1 Alternative dispute resolution for scheme pipeline access disputes
ch 5, pt 3, div 1: Subst 2022 No 21, sec 75.
155   Dispute resolution body may require parties to engage in alternative dispute resolution
(1)  This section applies if the dispute resolution body receives a notice of a scheme pipeline access dispute under section 152.
(2)  The dispute resolution body may require the parties to the dispute, in accordance with the Rules, to mediate, conciliate or engage in another alternative dispute resolution process for the purpose of resolving the dispute.
(3)  A party must comply with a requirement under subsection (2).
s 155: Subst 2022 No 21, sec 75.
Division 2 Mediation of access disputes involving small shippers
ch 5, pt 3, div 2: Subst 2022 No 21, sec 75.
156   Small shipper may elect to have access dispute mediated
A small shipper who is a party to an access dispute may, in accordance with the Rules, elect for the dispute to be resolved by mediation.
s 156: Subst 2022 No 21, sec 75.
157   Appointment of mediator
(1)  This section applies if a small shipper makes an election under section 156.
(2)  The parties to the access dispute may agree to appoint, in accordance with the Rules, a mediator to resolve the dispute.
(3)  If the parties do not agree to the appointment of a mediator within a period specified by the Rules, the AER must—
(a)  consult with the parties to the dispute about the appointment of a mediator; and
(b)  after consultation, appoint a mediator the AER considers appropriate for the dispute.
(4)  A mediator 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.
(5)  If a mediator does not, for any reason, complete a mediation of a dispute, the parties to the dispute may agree to appoint, in accordance with the Rules, an alternative mediator to resolve the dispute.
(6)  However, if the parties do not agree to the appointment of an alternative mediator within a period specified by the Rules, the AER must appoint another mediator in the way set out under subsection (3).
(7)  If an alternative mediator does not, for any reason, complete a mediation of the dispute, the dispute must be determined by the relevant adjudicator for the dispute under Part 5.
s 157: Subst 2022 No 21, sec 75.
158   Party’s lawyer may be present at mediation
A party to a mediation may have a lawyer present at the mediation.
s 158: Subst 2022 No 21, sec 75.
ch 5, pt 3, div 3, hdg: Rep 2022 No 21, sec 75.
ch 5, pt 3, div 4, hdg: Rep 2022 No 21, sec 75.
ch 5, pt 3, div 5, hdg: Rep 2022 No 21, sec 75.
Part 4 Arbitration of non-scheme pipeline access disputes
ch 5, pt 4: Subst 2022 No 21, sec 75.
159   Reference of non-scheme pipeline access dispute to arbitration
(1)  This section applies if the AER receives a notice of a non-scheme pipeline access dispute under section 152.
(2)  The AER must refer the dispute to arbitration.
(3)  The AER must give notice of the referral of an access dispute to arbitration to—
(a)  the parties to the access dispute; and
(b)  if relevant, any other person who will be a party to the access dispute.
(4)  However, this section applies subject to section 156.
s 159: Subst 2022 No 21, sec 75.
160   Appointment of arbitrator
(1)  This section applies if a non-scheme pipeline access dispute is referred to arbitration under section 159.
(2)  The parties to the access dispute may agree to appoint, in accordance with the Rules, an arbitrator to resolve the dispute.
(3)  If the parties do not agree to the appointment of an arbitrator within a period specified by the Rules, the AER must—
(a)  consult with the parties to the dispute about the appointment of an arbitrator; and
(b)  after consultation, appoint an arbitrator the AER considers appropriate for the dispute.
(4)  An 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.
(5)  If an arbitrator does not, for any reason, complete an arbitration of a dispute, the parties to the dispute may agree to appoint, in accordance with the Rules, an alternative arbitrator to resolve the dispute.
(6)  However, if the parties do not agree to the appointment of an alternative arbitrator within a period specified by the Rules, the AER must appoint another arbitrator in the way set out under subsection (3).
s 160: Subst 2022 No 21, sec 75.
Part 5 Access determination
ch 5, pt 5: Subst 2022 No 21, sec 75.
Division 1 Determination of access disputes generally
ch 5, pt 5, div 1: Ins 2022 No 21, sec 75.
161   Determination of access dispute
(1)  Unless the relevant adjudicator for an access dispute terminates the access dispute under Part 7, the relevant adjudicator must make a determination on access by the user or prospective user (as the case requires) (including a determination that does not require a service provider to provide access to any pipeline services).
(2)  In making an access determination, the relevant adjudicator must comply with this Chapter and the Rules.
(3)  An access determination may deal with any matter relating to access by the user or prospective user to the pipeline services specified by the Rules for the purposes of this subsection.
(4)  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; and
(g)  the publication of an access determination and other information related to the determination, including a statement of reasons for making the access determination, relevant financial calculations and any reports.
s 161: Subst 2022 No 21, sec 75.
162   Matters to be taken into account for access disputes
In making an access determination, the relevant adjudicator for an access dispute the subject of the determination must take into account any matters specified in the Rules for the purposes of this section.
s 162: Subst 2022 No 21, sec 75.
163   Restrictions on access determinations
(1)  An access determination must not have any of the following effects—
(a)  preventing a user from 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 user or prospective user from obtaining, by the exercise of a pre-notification right, a sufficient amount of a pipeline service to be able to meet the user’s or prospective 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 152;
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 152.
s 163: Subst 2022 No 21, sec 75.
164   Access determinations and part contributions of capital to fund installations or the construction of new facilities
(1)  In making an access determination, the relevant adjudicator for an access dispute the subject of the determination may take into account past contributions of capital to fund installations or the construction of new facilities for the access dispute pipeline.
(2)  Without limiting section 74, the Rules may—
(a)  specify the matters that the relevant adjudicator must address in making that access determination; and
(b)  specify the content of that access determination.
s 164: Subst 2022 No 21, sec 75.
Division 2 Particular provisions relating to scheme pipeline access disputes
ch 5, pt 5, div 2: Ins 2022 No 21, sec 75.
165   Access determination must give effect to applicable access arrangement
(1)  This section applies subject to sections 161, 164 and 166 and any Rules made for the purposes of this Part.
(2)  In making an access determination for a scheme pipeline access dispute, the dispute resolution body must give effect to the applicable access arrangement (the relevant 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.
(3)  Subsection (2) applies even though the relevant applicable access arrangement may not have been in force when notice of the access dispute was given.
s 165: Subst 2022 No 21, sec 75.
166   Rules may allow determination that varies applicable access arrangement for installation of a new facility
(1)  This section applies in relation to an access determination for a scheme pipeline access dispute that requires—
(a)  a service provider to install or construct a new facility to expand the capacity of the access dispute pipeline; and
(b)  the user or prospective 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, when making the access determination, to vary the applicable access arrangement; and
(b)  specify the matters that the dispute resolution body must address in making the access determination; and
(c)  specify the kinds of variations that may be made to the applicable access arrangement; and
(d)  specify the content of the access determination.
s 166: Subst 2022 No 21, sec 75.
Part 6 Variation of access determinations
ch 5, pt 6: Ins 2022 No 21, sec 75.
167   Variation of access determination—scheme pipeline disputes
(1)  This section applies in relation to an access determination for a scheme pipeline access dispute.
(2)  The dispute resolution body may vary the access determination on the application of any party to the determination, but 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 152.
(3)  Section 163 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.
s 167: Subst 2022 No 21, sec 75.
168   Variation of access determination—non-scheme pipeline disputes
(1)  This section applies in relation to an access determination for a non-scheme pipeline access dispute.
(2)  The access determination may be varied by agreement between all parties to the access determination.
(3)  The Rules may also contain provisions with respect to seeking variations to an access determination.
(4)  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.
s 168: Subst 2022 No 21, sec 75.
Part 7 Termination of access dispute
ch 5, pt 7: Ins 2022 No 21, sec 75.
169   Relevant adjudicator may terminate access dispute in particular circumstances
(1)  The relevant adjudicator for an access dispute may at any time terminate the access dispute (without making an access determination) if—
(a)  the notice of dispute given under section 152 is withdrawn; or
(b)  the relevant adjudicator considers that—
(i)  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; or
(ii)  the notice of the access dispute was vexatious; or
(iii)  the subject matter of the dispute is trivial, misconceived or lacking in substance; or
(iv)  the party who notified the access dispute did not negotiate in good faith; or
(v)  a specified dispute termination circumstance has occurred; or
(vi)  there is some other good reason why the dispute should be terminated.
(2)  Subject to section 163, the relevant adjudicator for an access dispute may also terminate the access dispute (without making an access determination) if the relevant adjudicator considers that the aspect of access about which there is a dispute is expressly or impliedly dealt with under a contract between the user or prospective user and the service provider.
(3)  Furthermore, a relevant adjudicator who is an arbitrator for a non-scheme pipeline access dispute may terminate an arbitration (without making an access determination) if the arbitrator considers that the user or prospective user seeking access is not engaging in the arbitration in good faith.
(4)  In this section—
specified dispute termination circumstance means a circumstance specified by the Rules as being a circumstance, the occurrence of which, entitles the relevant adjudicator for an access dispute to terminate the access dispute (without making an access determination).
s 169: Subst 2022 No 21, sec 75.
Part 8 Compliance with access determinations
ch 5, pt 8: Ins 2022 No 21, sec 75.
170   Compliance with access determination
(1)  Subject to the Rules and subsection (2)—
(a)  a party to a scheme pipeline access dispute in respect of which an access determination is made must comply with the access determination; and
(b)  an access determination in relation to a non-scheme pipeline is enforceable as if it were a contract between the parties to the access determination.
Note—
See also Chapter 8 Part 6 in relation to the enforcement of access determinations.
(2)  A user or prospective user of a pipeline service to which an access determination relates is not bound to seek access to the service.
(3)  However, if a user or prospective user of a pipeline service seeks or obtains access, the user or prospective user is bound by any relevant provision of the access determination.
s 170: Subst 2022 No 21, sec 75.
171   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.
s 171: Subst 2022 No 21, sec 75.
Part 9 Access dispute hearing procedure
ch 5, pt 9: Ins 2022 No 21, sec 75.
172   Part applies subject to any modifications prescribed by the Regulations
This Part applies subject to any modifications prescribed by the Regulations.
s 172: Subst 2022 No 21, sec 75.
173   Fast track resolution process—scheme pipeline access disputes
A scheme pipeline access dispute may be dealt with in accordance with a fast track resolution process under the Rules in the circumstances provided for in the Rules.
s 173: Subst 2022 No 21, sec 75.
174   Hearing to be in private
(1)  A dispute hearing is to be in private.
(2)  However, if the parties agree, a dispute hearing or part of a dispute hearing may be conducted in public.
(3)  The relevant adjudicator for an access dispute the subject of the dispute hearing 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 relevant adjudicator must have regard to the wishes of the parties and the need for commercial confidentiality.
s 174: Subst 2022 No 21, sec 75.
175   Right to representation
In a dispute hearing, a party may appear in person or be represented by another person.
s 175: Subst 2022 No 21, sec 75.
176   Procedure of relevant adjudicator
(1)  In a dispute hearing the relevant adjudicator for an access dispute—
(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 relevant adjudicator 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 relevant adjudicator may require evidence or argument to be presented in writing, and may decide the matters on which the relevant adjudicator will hear oral evidence or argument.
(4)  The relevant adjudicator 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.
s 176: Subst 2022 No 21, sec 75.
177   Particular powers of relevant adjudicator in a hearing
(1)  The relevant adjudicator for an access dispute may do any of the following things for the purpose of determining the 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 relevant adjudicator may make an interim determination.
s 177: Subst 2022 No 21, sec 75.
178   Role of a dispute resolution expert
(1)  This section applies if, for the purpose of determining an access dispute, a matter is referred to an independent expert under section 177(1)(e).
(2)  The expert is to be appointed on terms and conditions determined by the relevant adjudicator for the access dispute.
(3)  The expert must report to the relevant adjudicator in accordance with the requirements of the relevant adjudicator.
(4)  The independent expert must—
(a)  have knowledge and experience that is relevant to the matter; and
(b)  not have any material direct or indirect interest or association that compromises, or is likely to compromise, the impartiality of the expert; and
(c)  disclose to the relevant adjudicator any material or indirect interest or association that compromises, or would reasonably be seen to compromise, the impartiality of the expert.
s 178: Subst 2022 No 21, sec 75.
178A   (Repealed)
s 178A: Ins 2011 No 7, sec 61. Rep 2022 No 21, sec 75.
179   Disclosure of information
(1)  The relevant adjudicator for an access dispute 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 the access dispute unless the person has the relevant adjudicator’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 179: Subst 2022 No 21, sec 75.
180   Power to take evidence on oath or affirmation
(1)  The relevant adjudicator for an access dispute may take evidence on oath or affirmation and for that purpose the relevant adjudicator may administer an oath or affirmation.
(2)  The relevant adjudicator may summon a person to appear before the relevant adjudicator 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 the access dispute.
s 180: Subst 2022 No 21, sec 75.
181   Failing to attend as a witness
A person who is served, as prescribed by the Regulations, with a summons to appear as a witness at a dispute hearing before the relevant adjudicator for an access dispute must not, without reasonable excuse—
(a)  fail to attend as required by the summons; or
(b)  fail to appear and report from day to day unless excused, or released from further attendance, by the relevant adjudicator.
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 181: Subst 2022 No 21, sec 75.
182   Failing to answer questions etc
(1)  A person appearing at a dispute hearing as a witness before the relevant adjudicator for an access dispute the subject of the dispute hearing 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 relevant adjudicator; or
(c)  refuse or fail to produce a document that the person is required to produce by a summons under this Chapter served on the person 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 182: Subst 2022 No 21, sec 75.
183   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 relevant adjudicator for a dispute hearing; or
(d)  proposes to appear, or has appeared, as a witness before the relevant adjudicator for a dispute hearing.
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 183: Subst 2022 No 21, sec 75.
184   Particular powers of a relevant adjudicator in a hearing
(1)  A party in a dispute hearing may—
(a)  inform the relevant adjudicator for an access dispute the subject of the dispute hearing that, in the party’s opinion, a specified part of a document contains confidential information (the relevant part of the document); and
(b)  request the relevant adjudicator not to give a copy of the relevant part of the document to another party.
(2)  On receiving a request, the relevant adjudicator 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 relevant adjudicator complying with the request.
(3)  If there is an objection to the relevant adjudicator complying with the request, the party objecting may inform the relevant adjudicator of the objection and of the reasons for it.
(4)  The relevant adjudicator must consider—
(a)  a request; and
(b)  any objection; and
(c)  any further submissions that any party has made in relation to the request.
(5)  After considering the matters mentioned in subsection (4), the relevant adjudicator may decide—
(a)  not to give the other party or parties a copy of any part of the relevant part of the document that the relevant adjudicator thinks should not be given; or
(b)  to give the other party or another specified party a copy of the whole, or part, of the relevant part of the document subject to —
(i)  a condition that the party give an undertaking not to disclose the information contained in the relevant part of the document to another person except to the extent specified by the relevant adjudicator; and
(ii)  any other condition the relevant adjudicator considers appropriate.
s 184: Subst 2022 No 21, sec 75.
Part 10 Costs
ch 5, pt 10: Ins 2022 No 21, sec 75.
Division 1 Scheme pipeline access disputes
ch 5, pt 10, div 1: Ins 2022 No 21, sec 75.
185   Costs—scheme pipeline access disputes
(1)  Each party to a scheme pipeline access dispute 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 (other than a small shipper) 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; or
(ii)  failing to comply with this Law, the Regulations or the Rules; or
(iii)  asking for an adjournment as a result of subparagraph (i) or (ii); or
(iv)  causing an adjournment; or
(v)  attempting to deceive another party or the dispute resolution body; or
(vi)  vexatiously conducting an access dispute; and
(b)  whether a party has been responsible for prolonging unreasonably the time taken to complete the dispute hearing; and
(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; and
(d)  the nature and complexity of the access dispute; and
(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 the representative’s 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 notice of the access dispute to which the dispute hearing relates is withdrawn.
s 185: Subst 2022 No 21, sec 75.
186   Outstanding costs are a debt due to party awarded the costs—scheme pipelines
Costs that are payable under section 185(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.
s 186: Subst 2022 No 21, sec 75.
187   Regulations about the costs to be paid by parties to access dispute—scheme pipelines
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.
s 187: Subst 2022 No 21, sec 75.
Division 2 Non-scheme pipeline disputes
ch 5, pt 10, div 2: Ins 2022 No 21, sec 75.
188   Costs of arbitration of non-scheme pipeline disputes
(1)  This section applies in relation to the parties to an arbitration of a non-scheme pipeline dispute conducted under this Chapter.
(2)  Despite any other provision of this Chapter, the parties to the arbitration bear their own costs.
(3)  The costs of the arbitration (including costs associated with the arbitration process and the cost of the arbitrator) must be shared equally between the parties to the arbitration.
(4)  The Rules may make provision in relation to the costs of an arbitration conducted under this Chapter, including rules that provide for a different approach to allocating costs under subsection (3) in specified circumstances.
(5)  Costs that are payable to the arbitrator under this section—
(a)  are a debt due by the party to the arbitrator; and
(b)  may be recovered by the arbitrator in a court of competent jurisdiction.
s 188: Subst 2022 No 21, sec 75.
Division 3 Mediation of access disputes involving small shippers
ch 5, pt 10, div 3: Ins 2022 No 21, sec 75.
189   Costs of mediation of access disputes involving small shippers
(1)  This section applies in relation to an access dispute involving small shippers that is referred to mediation under this Chapter.
(2)  The parties to the mediation bear their own costs.
(3)  The costs of the mediation (including costs associated with the mediation process and the cost of the mediator) must be shared equally between the parties to the mediation.
(4)  Subsections (2) and (3) apply subject to any agreement between the parties to the access dispute about who will bear any costs (or a particular share of any costs) in the particular case.
(5)  Costs that are payable to the mediator under this section—
(a)  are a debt due by the party to the mediator; and
(b)  may be recovered by the mediator in a court of competent jurisdiction.
s 189: Subst 2022 No 21, sec 75.
Part 11 Joint access dispute hearings—scheme pipeline disputes
ch 5, pt 11: Ins 2022 No 21, sec 75.
190   Definition
In this Part—
nominated disputes has the meaning given by section 191(2).
s 190: Subst 2022 No 21, sec 75.
191   Joint dispute hearing
(1)  This section applies if—
(a)  the dispute resolution body is conducting 2 or more dispute hearings in relation to scheme pipeline access disputes at a particular time; and
(b)  one 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.
s 191: Subst 2022 No 21, sec 75.
192   Consulting the parties
(1)  Before making a decision under section 191(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.
(3)  The dispute resolution body may also have regard to any other matter it considers relevant.
s 192: Subst 2022 No 21, sec 75.
193   Constitution and procedure of dispute resolution body for joint dispute hearings
Part 9 applies to the joint dispute hearing in a corresponding way to the way in which it applies to a particular dispute hearing.
s 193: Subst 2022 No 21, sec 75.
194   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.
s 194: Subst 2022 No 21, sec 75.
Part 12 Miscellaneous matters
ch 5, pt 12: Ins 2022 No 21, sec 75.
195   Correction of access determinations for clerical mistakes etc
(1)  This section applies 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.
(2)  Subject to the Rules, the relevant adjudicator for the access dispute the subject of the dispute hearing may correct the determination.
s 195: Subst 2022 No 21, sec 75.
196   User’s existing capacity rights 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 pipeline during the period of the dispute.
s 196: Subst 2022 No 21, sec 75.
Chapter 5A Third-party access obligations for non-pipeline facilities
ch 5A: Ins 2023 No 36, sec 52.
Part 1 Information transparency
ch 5A, pt 1: Ins 2023 No 36, sec 52.
197   Definitions
In this Part—
facility means the following—
(a)  a blend processing facility;
(b)  a compression service facility;
(c)  a storage facility;
(d)  a facility, other than a pipeline, prescribed by the Regulations for the purpose of this definition;
provider means the following—
(a)  a blend processing service provider;
(b)  a compression service provider;
(c)  a storage provider;
(d)  the owner, operator or controller of a facility prescribed for the purpose of paragraph (d) of the definition of facility.
s 197: Rep 2022 No 21, sec 75. Ins 2023 No 36, sec 52.
198   Information and transparency requirements relating to facilities
(1)  Without limiting any other provision, the Rules may provide for—
(a)  the collection, disclosure, verification, management and publication of information in relation to services that may be provided by means of a facility; and
(b)  without limiting paragraph (a), requirements about the information that must be provided by a provider in relation to access, or potential access, to services provided by means of a facility, including information about the following—
(i)  the terms and conditions on which the provider is prepared to make the facility available for use by others;
(ii)  the procedures that the provider will apply in determining a proposal for access to the facility;
(iii)  relevant prices, costs and methodologies associated with gaining access to, and using, a facility and relevant or related services;
(iv)  access contracts and arrangements used, or required to be used, by the relevant provider; and
(c)  without limiting paragraphs (a) and (b), information to be provided by a provider in response to a request for access to services provided by means of a facility; and
(d)  requirements to ensure that information is accurate and complete; and
(e)  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 facility.
(2)  Nothing in subsection (1) limits any power to grant an exemption from complying with a provision, or part of a provision, of the Rules.
s 198: Rep 2022 No 21, sec 75. Ins 2023 No 36, sec 52.
199   Publication of information relating to facilities
A person required by the Rules made under section 198 to publish information must do so in accordance with the Rules.
s 199: Rep 2022 No 21, sec 75. Ins 2023 No 36, sec 52.
Part 2 Access to certain facilities
ch 5A, pt 2: Ins 2023 No 36, sec 52.
200   Definitions
In this Part—
relevant facility means—
(a)  a blend processing facility; or
(b)  a facility of a type prescribed by the Regulations for the purposes of this paragraph.
s 200: Am 2020 No 37, sec 61. Rep 2022 No 21, sec 75. Ins 2023 No 36, sec 52.
201   Preventing or hindering access to relevant facilities
(1)  A person who owns, operates or controls a relevant facility, or an associate of the person, must not engage in conduct for the purpose of preventing or hindering the access of another person to a service provided by a relevant facility.
(2)  For the purposes of subsection (1), a person is taken 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 another 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 service provided by means of a relevant facility;
(ii)  without reasonable grounds, limiting or disrupting a service provided by means of a relevant facility;
(iii)  making, or giving effect to, a provision of a contract or arrangement;
(iv)  arriving at, or giving effect to, a provision of an understanding;
(v)  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 the act; or
(ii)  making it known the act will not be done.
(6)  Subsection (1) does not apply to conduct engaged in under an agreement, other than conduct in breach of this Law, the Regulations, the Rules or the Procedures, if—
(a)  for conduct relating to a blend processing facility—the agreement was in force immediately before the Statutes Amendment (National Energy Laws) (Other Gases) Act 2023 commenced; and
(b)  for conduct relating to any other type of facility—the agreement was in force immediately before the facility was prescribed as a relevant facility.
s 201: Rep 2022 No 21, sec 75. Ins 2023 No 36, sec 52.
202   Terms and conditions must not discriminate
(1)  A person who owns, operates or controls a relevant facility must not set terms and conditions for the use of a service provided by means of the facility that discriminate in favour of the following—
(a)  the person’s own operations, whether upstream or downstream; or
(b)  the operations of an associate of the person.
(2)  Subsection (1) does not apply to the extent that the cost of providing a service to another person is higher.
(3)  This section does not apply if the agreement setting the terms and conditions was in force immediately before—
(a)  for a blend processing facility—the commencement of the Statutes Amendment (National Energy Laws) (Other Gases) Act 2023; or
(b)  otherwise—the facility became a relevant facility.
s 202: Am 2020 No 37, sec 62. Rep 2022 No 21, sec 75. Ins 2023 No 36, sec 52.
203   Duty to negotiate in good faith
(1)  A user or prospective user seeking access to a service provided by means of a relevant facility and a person who owns, operates or controls the facility must negotiate in good faith with each other about—
(a)  whether access can be granted to the user or prospective user; and
(b)  if access is to be granted—the terms and conditions for the provision of access to the user or prospective user.
(2)  Without limiting any other provision, the Rules may make provision for or with respect to the following—
(a)  making and responding to a request for access;
(b)  the negotiation framework;
(c)  the resolution of disputes between the person who owns, operates or controls a relevant facility and a user or prospective user of the service provided by means of the relevant facility about 1 or more aspects of access to the service.
(3)  Where provided for in the Rules, the decision of a dispute resolution body, made in accordance with a rule under subsection (2)(c), has effect as a contract between the parties to the dispute.
(4)  Rules made under subsection (2) are not required to adopt, either in whole or in part, an existing dispute resolution mechanism in this Law or the Regulations.
s 203: Am 2020 No 37, sec 63. Rep 2022 No 21, sec 75. Ins 2023 No 36, sec 52.
204   Rules about ring fencing
(1)  The Rules may make provision for matters relating to ring fencing the activities of providers, including the following—
(a)  requirements for the structural and operational separation of the activities of providers;
(b)  separate accounting requirements for the activities of providers;
(c)  dealings by providers with associates.
(2)  In this section—
provider means the following—
(a)  a blend processing service provider;
(b)  the owner, operator or controller of a class of facility prescribed by the Regulations.
s 204: Am 2020 No 37, sec 64. Rep 2022 No 21, sec 75. Ins 2023 No 36, sec 52.
Chapters 6, 6A
205–216V  (Repealed)
ch 6, hdg: Subst 2017 No 23, sec 5. Rep 2022 No 21, sec 75.
ch 6: Rep 2022 No 21, sec 75.
ch 6, pt 1, hdg: Rep 2022 No 21, sec 75.
ch 6, pt 2, hdg: Rep 2022 No 21, sec 75.
ch 6, pt 3, hdg: Rep 2022 No 21, sec 75.
ch 6, pt 4, hdg: Rep 2022 No 21, sec 75.
ch 6, pt 5, hdg: Rep 2022 No 21, sec 75.
ch 6, pt 6, hdg: Rep 2022 No 21, sec 75.
s 205: Rep 2022 No 21, sec 75.
s 206: Rep 2022 No 21, sec 75.
s 207: Rep 2022 No 21, sec 75.
ch 6, pt 7, hdg: Rep 2022 No 21, sec 75.
s 208: Rep 2022 No 21, sec 75.
s 209: Rep 2022 No 21, sec 75.
s 210: Rep 2022 No 21, sec 75.
s 211: Rep 2022 No 21, sec 75.
s 212: Rep 2022 No 21, sec 75.
ch 6, pt 8, hdg: Rep 2022 No 21, sec 75.
s 213: Rep 2022 No 21, sec 75.
s 214: Rep 2022 No 21, sec 75.
s 215: Rep 2022 No 21, sec 75.
s 216: Rep 2022 No 21, sec 75.
ch 6A: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
ch 6A, pt 1: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216A: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216B: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216C: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216D: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216E: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
ch 6A, pt 2: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216F: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216G: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216H: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216I: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
ch 6A, pt 3: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216J: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216K: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216L: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216M: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216N: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216O: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216P: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
ch 6A, pt 4: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216Q: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
ch 6A, pt 5: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216R: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
ch 6A, pt 6: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216S: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
ch 6A, pt 7: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216T: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216U: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
s 216V: Ins 2017 No 23, sec 6. Rep 2022 No 21, sec 75.
Chapter 7 The Gas Bulletin Board
ch 7, hdg: Am 2023 No 36, sec 53.
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 Gas Bulletin Board.
s 217: Am 2009 No 30, sec 17; 2023 No 36, sec 54.
218   AEMO’s obligation to maintain Bulletin Board
(1)  AEMO must maintain the Gas Bulletin Board.
(2)  The Gas 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 covered gas industry.
(3)  AEMO may replace the website with another website containing information of the kind specified in the Rules in relation to the covered gas industry.
s 218: Am 2009 No 30, sec 17; 2018 No 23, sec 15; 2022 No 3, sec 28; 2023 No 36, sec 55.
219   AEMO’s other functions as operator of Gas Bulletin Board
AEMO also has, in its capacity as operator of the Gas Bulletin Board, the following functions—
(a)  to collect and collate Bulletin Board information;
(b)  to collect and collate other information in relation to the covered gas industry for inclusion on the Gas Bulletin Board;
(c)  to derive from information of the type mentioned in paragraphs (a) and (b) information for inclusion on the Gas Bulletin Board;
(d)  subject to the Rules, to publish information on the Gas Bulletin Board of the kinds that may or must be included on the Gas 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 Gas 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; 2023 No 36, sec 56.
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 Gas 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; 2023 No 36, sec 57.
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 covered gas industry must give the information to AEMO for use by AEMO in connection with the Gas 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 covered gas, covered gas services or the use of covered 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. Am 2023 No 36, sec 58.
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 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 natural gas 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. Am 2023 No 36, sec 59.
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 Gas 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 Gas 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. Am 2023 No 36, sec 60.
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
ch 7A: Ins 2018 No 23, sec 20.
Part 1 Standard terms for operational transportation services
ch 7A, pt 1: 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.
s 228B: 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.
s 228C: 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.
s 228D: 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.
s 228E: 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.
s 228F: Ins 2018 No 23, sec 20.
Part 2 Operational Transportation Service Code
ch 7A, pt 2: 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.
s 228G: 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.
s 228H: Ins 2018 No 23, sec 20.
Part 3 Other matters relating to access to operational transportation services
ch 7A, pt 3: 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 covered 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.
s 228I: Ins 2018 No 23, sec 20. Am 2023 No 36, sec 61.
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.
s 228J: Ins 2018 No 23, sec 20.
228K   Preventing or hindering access to operational transportation services