National Gas Access (WA) Act 2009

 

National Gas Access (WA) Act 2009

Contents

Part 1 — Preliminary

1.Short title2

2.Commencement2

3.Terms used in this Act2

4.Crown bound2

5.Application to coastal waters3

6.Extra‑territorial operation3

6A.Extension to certain pipelines for hauling gas other than natural gas3

6B.Interpretation Act 1984 does not apply4

Part 2 — National Gas Access (Western Australia) Law and its regulations

7.National Gas Access (Western Australia) Law5

7A.Amendments to Schedule to South Australian Act5

7B.Regulations amending Schedule 1 consequentially6

8.National Gas Access (Western Australia) Regulations6

9.Terms used in National Gas Access (Western Australia) Law and its regulations6

Part 3 — Regulations for the National Gas Access (Western Australia) Law

10.Making regulations9

11.Regulations may deal with transitional matters10

Part 4 — Cross vesting of functions and powers

12.Conferral of powers on Commonwealth Minister and Commonwealth bodies to act in this State12

13.Conferral of powers on Ministers of other participating States and Territories to act in this State12

14.Conferral of functions or powers on State bodies12

Part 5 — General

15.Exemption from taxes13

16.Actions in relation to cross boundary pipelines13

17.Conferral of functions and powers on Commonwealth bodies15

Part 6 — Other local provisions

Division 1 — Economic Regulation Authority

18.Expertise of Director of Energy Safety to be used16

Division 2 — Miscellaneous

19.Preservation of certain contracts relating to privatised DBNGP system16

20.Transitional provisions for Kalgoorlie to Kambalda pipeline17

21.Regulations17

22.Review of Act18

Part 7 — Various Acts amended

Division 1 — Gas Pipelines Access (Western Australia) Act 1998

23.Act amended20

24.Long title replaced20

25.Preamble deleted20

26.Section 1 amended20

27.Sections 2 to 4 deleted20

28.Section 5 amended20

29.Sections 6 to 8 deleted21

30.Parts 2 to 5 deleted21

31.Part 6 heading replaced21

Part 6  Review board and arbitrator

32.Part 6 Division 1 deleted21

33.Part 6 Division 2 heading replaced21

Division 2 — Review board

34.Section 49 amended21

35.Part 6 Division 2 Subdivision 2 heading replaced21

Subdivision 2 — Western Australian Electricity Review Board established

36.Section 50 amended22

37.Section 57 amended22

38.Section 59 amended22

39.Section 61 amended22

40.Part 6 Division 3 Subdivision 2 heading amended23

41.Section 62 amended23

42.Section 73 amended23

43.Section 74 amended23

44.Section 76 amended24

45.Section 77 amended24

46.Section 81 amended24

47.Section 82 amended25

48.Section 87 deleted25

49.Section 88 deleted25

50.Parts 7 and 8 deleted25

51.Schedules deleted25

Division 2 — Economic Regulation Authority Act 2003

52.Act amended25

53.Section 25 amended26

54.Section 28 amended26

55.Section 32 amended27

Division 3 — Electricity Industry Act 2004

56.Act amended27

57.Section 3 amended27

58.Section 113 deleted27

59.Section 125 amended27

60.Section 130 amended28

61.Section 133 amended29

Division 4 — Energy Coordination Act 1994

62.Act amended29

63.Section 11J deleted29

64.Section 11M amended29

65.Section 11V amended29

66.Section 11ZAC amended30

67.Schedule 1A amended30

Division 5 — Other Acts amended

68.Constitution Acts Amendment Act 1899 amended30

69.Financial Management Act 2006 amended30

70.Freedom of Information Act 1992 amended31

71.Parliamentary Commissioner Act 1971 amended31

72.Petroleum Pipelines Act 1969 amended31

Schedule 1 — Some modifications to National Gas Law as in Schedule to South Australian Act

1.Purpose of this Schedule33

2.Section 1 modified33

3.Section 2 modified33

4.Sections 2A and 2B inserted34

2A.Meaning of AER modified34

2B.References to WA application Act35

5.Chapter 1 Part 1A inserted35

Part 1A — Postponement of Natural Gas Services Bulletin Board provisions

20A.Minister may fix day on which provisions apply35

6.Section 29 modified35

7.Section 30 modified36

8.Chapter 2 Part 1A inserted36

Part 1A — Functions and powers of WA arbitrator

68A.Manner in which WA arbitrator must perform or exercise certain functions or powers37

9.Section 181A inserted37

181A.Providing information for certain disputes37

10.Section 231 modified38

11.Section 240 modified38

12.Section 290 modified39

13.Section 294 replaced39

294.Initial National Gas Rules for WA39

14.Schedule 1 modified39

15.Schedule 2 clause 27A inserted40

27A.WA modifications of clause 2740

16.Schedule 2 clause 34 modified40

17.Schedule 2 clause 50 replaced41

50.Attempts and incitement41

18.Schedule 3 modified41

Notes about National Gas Access (WA) Act 2009

Compilation table42

Note — Western Australian National Gas Access Law text

Chapter 1 — Preliminary

Part 1 — Citation and interpretation

1.Citation43

2.Definitions43

2A.Meaning of AER modified64

2B.References to WA application Act64

3.Meaning of civil penalty provision64

4.Meaning of conduct provision65

5.Meaning of prospective user66

6.Meaning of regulatory obligation or requirement66

7.Meaning of regulatory payment68

8.Meaning of service provider68

9.Passive owners of scheme pipelines deemed to provide or intend to provide pipeline services69

10.Things done by 1 service provider to be treated as being done by all of service provider group69

11.Local agents of foreign service providers70

12.Commissioning of a pipeline70

13.Pipeline classification criterion71

14.Jurisdictional determination criteria—cross boundary distribution pipelines72

15.Pipeline coverage criteria72

16.Form of regulation factors73

17.Effect of separate and consolidated access arrangements in certain cases74

18.Certain extensions to, or expansion of the capacity of, pipelines to be taken to be part of a covered pipeline75

19.Expansions of and extensions to covered pipeline by which light regulation services are provided75

20.Interpretation generally75

Part 1A Postponement of Natural Gas Services Bulletin Board provisions

20A.Minister may fix day on which provisions apply76

Part 2Participating jurisdictions

21.Participating jurisdictions76

22.Ministers of participating jurisdictions76

Part 3National gas objective and principles

Division 1 — National gas objective

23.National gas objective77

Division 2 — Revenue and pricing principles

24.Revenue and pricing principles77

Division 3 — MCE policy principles

25.MCE statements of policy principles78

Part 4 — Operation and effect of National Gas Rules

26.National Gas Rules to have force of law79

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 AER80

28.Manner in which AER must perform or exercise AER economic regulatory functions or powers81

29.Delegations83

30.Confidentiality83

Division 2 — Search warrants

31.Definitions84

32.Authorised person84

33.Identity cards85

34.Return of identity cards85

35.Search warrant85

36.Announcement of entry and details of warrant to be given to occupier or other person at premises87

37.Immediate entry permitted in certain cases87

38.Copies of seized documents88

39.Retention and return of seized documents or things88

40.Extension of period of retention of documents or things seized89

41.Obstruction of persons authorised to enter90

Division 3 — General information gathering powers

42.Power to obtain information and documents in relation to performance and exercise of functions and powers90

Division 4 — Regulatory information notices and general regulatory information orders

Subdivision 1 — Interpretation

43.Definitions92

44.Meaning of contributing service93

45.Meaning of general regulatory information order94

46.Meaning of regulatory information notice94

47.Division does not limit operation of information gathering powers under Division 394

Subdivision 2 — Serving and making of regulatory information instruments

48.Service and making of regulatory information instrument95

49.Additional matters to be considered for related provider regulatory information instruments96

50.AER must consult before publishing a general regulatory information order98

51.Publication requirements for general regulatory information orders98

52.Opportunity to be heard before regulatory information notice is served98

Subdivision 3 — Form and content of regulatory information instruments

53.Form and content of regulatory information instrument100

54.Further provision about the information that may be described in a regulatory information instrument101

55.Further provision about manner in which information must be provided to AER or kept102

Subdivision 4 — Compliance with regulatory information instruments

56.Compliance with regulatory information notice that is served103

57.Compliance with general regulatory information order103

58.Exemptions from compliance with general regulatory information order103

59.Assumptions where there is non‑compliance with regulatory information instrument104

Subdivision 5 — General

60.Providing to AER false and misleading information105

61.Person cannot rely on duty of confidence to avoid compliance with regulatory information instrument105

62.Legal professional privilege not affected105

63.Protection against self‑incrimination106

Division 5 — Service provider performance reports

64.Preparation of service provider performance reports106

Division 6 — Miscellaneous matters

65.Consideration by the AER of submissions or comments made to it under this Law or the Rules108

66.Use of information provided under a notice under Division 3 or a regulatory information instrument108

67.AER to inform certain persons of decisions not to investigate breaches, institute proceedings or serve infringement notices108

68.AER enforcement guidelines109

68C.Record of designated reviewable regulatory decisions109

Part 1A — Functions and powers of WA arbitrator

68A.Manner in which WA arbitrator must perform or exercise certain functions or powers111

Part 2 — Functions and powers of the Australian Energy Market Commission

Division 1 — General

69.Functions and powers of the AEMC111

70.Delegations112

71.Confidentiality112

72.AEMC must have regard to national gas objective112

73.AEMC must have regard to MCE statements of policy principles in relation to Rule making and reviews112

Division 2 — Rule making functions and powers of the AEMC

74.Subject matter for National Gas Rules113

75.Rules relating to MCE or Ministers of participating jurisdictions require MCE consent116

76.AEMC must not make Rules that create criminal offences or impose civil penalties for breaches116

77.Documents etc applied, adopted and incorporated by Rules to be publicly available117

Division 3 — Committees, panels and working groups of the AEMC

78.Establishment of committees, panels and working groups117

Division 4 — MCE directed reviews

79.MCE directions118

80.Terms of reference118

81.Notice of MCE directed review120

82.Conduct of MCE directed review120

Division 5 — Other reviews

83.Rule reviews by the AEMC120

Division 6 — Miscellaneous matters

84.AEMC must publish and make available up to date versions of Rules121

85.Fees121

86.Immunity from personal liability of AEMC officials122

Part 3 — Functions and powers of Ministers of participating jurisdictions

87.Functions and powers of Minister of this participating jurisdiction under this Law122

88.Functions and powers of Commonwealth Minister under this Law123

Part 4 — Functions and powers of the NCC

89.Functions and powers of NCC under this Law123

90.Confidentiality123

Part 5 — Functions and powers of Tribunal

91.Functions and powers of Tribunal under this Law125

Chapter 3 — Coverage and classification of pipelines

Part 1 — Coverage of pipelines

Division 1 — Coverage determinations

92.Application for recommendation that a pipeline be a covered pipeline126

93.Application to be dealt with in accordance with the Rules126

94.NCC may defer consideration of application in certain cases126

95.NCC coverage recommendation127

96.NCC must not make coverage recommendation if tender approval decision becomes irrevocable128

97.Principles governing the making of a coverage recommendation128

98.Initial classification decision to be made as part of recommendation129

99.Relevant Minister’s determination on application130

100.Principles governing the making of a coverage determination or decision not to do so131

101.Operation and effect of coverage determination132

Division 2 — Coverage revocation determinations

102.Application for a determination that a pipeline no longer be a covered pipeline132

103.Application to be dealt with in accordance with the Rules132

104.NCC coverage revocation recommendation133

105.Principles governing the making of a coverage revocation recommendation133

106.Relevant Minister’s determination on application134

107.Principles governing the making of a coverage revocation determination or decision not to do so135

108.Operation and effect of coverage revocation determination136

Part 2 — Light regulation of covered pipeline services

Division 1 — Making of light regulation determinations

Subdivision 1 — Decisions when pipeline is not a covered pipeline

109.Application of Subdivision136

110.NCC’s decision on light regulation of pipeline services137

Subdivision 2 — Decisions when pipeline is a covered pipeline

111.Application of Subdivision137

112.Application138

113.Application to be dealt with in accordance with the Rules138

114.NCC’s decision on light regulation of pipeline services138

Subdivision 3 — Operation and effect of light regulation determinations

115.When light regulation determinations take effect139

116.Submission of limited access arrangement for light regulation services139

Division 2 — Revocation of light regulation determinations

Subdivision 1 — On advice from service providers

117.Advice by service provider that light regulation services should cease to be light regulation services140

Subdivision 2 — On application by persons other than service providers

118.Application (other than by service provider) for revocation of light regulation determinations141

119.Decisions on applications made around time of applications for coverage revocation determinations141

120.NCC decision on application where no application for a coverage revocation recommendation143

121.Operation and effect of decision of NCC under this Division143

Division 3 — Principles governing light regulation determinations

122.Principles governing the making or revoking of light regulation determinations144

Division 4 — Revocation if coverage determination not made

123.Light regulation determination revoked if coverage determination not made145

Division 5 — Effect of pipeline ceasing to be covered pipeline

124.Light regulation services cease to be such services on cessation of coverage of pipeline146

Division 6 — AER reviews into designated pipelines

125.AER reviews146

Part 3 — Coverage of pipelines the subject of tender process

126.Tender approval pipelines deemed to be covered pipelines147

Part 4 — Coverage following approval of voluntary access arrangement

127.Certain pipelines become covered pipelines on approval of voluntary access arrangement148

Part 5 — Reclassification of pipelines

128.Service provider may apply for reclassification of pipeline149

129.Reclassification decision149

130.Effect of reclassification decision150

Chapter 4 — General requirements for provision of covered pipeline services

Part 1 — General duties for provision of pipeline services by covered pipelines

131.Service provider must be legal entity of a specified kind to provide pipeline services by covered pipeline151

132.Submission of full access arrangement or revisions to applicable full access arrangements151

133.Preventing or hindering access152

134.Supply and haulage of natural gas154

135.Covered pipeline service provider must comply with queuing requirements154

136.Covered pipeline service provider providing light regulation services must not price discriminate155

Part 2 — Structural and operational separation requirements (ring fencing)

Division 1 — Interpretation

137.Definitions155

138.Meaning of marketing staff156

Division 2 — Minimum ring fencing requirements

139.Carrying on of related businesses prohibited157

140.Marketing staff and the taking part in related businesses157

141.Accounts that must be prepared, maintained and kept158

Division 3 — Additional ring fencing requirements

142.Division does not limit operation of Division 2158

143.AER ring fencing determinations158

144.AER to have regard to likely compliance costs of additional ring fencing requirements160

145.Types of ring fencing requirements that may be specified in an AER ring fencing determination160

Division 4 — AER ring fencing exemptions

146.Exemptions from minimum ring fencing requirements161

Division 5 — Associate contracts

147.Service provider must not enter into or give effect to associate contracts that have anti‑competitive effect162

148.Service provider must not enter into or give effect to associate contracts inconsistent with competitive parity rule162

Chapter 5 — Greenfields pipeline incentives

Part 1 — Interpretation

149.Definitions164

150.International pipeline to be a transmission pipeline for purposes of Chapter164

Part 2 — 15‑year no‑coverage determinations

151.Application for 15‑year no‑coverage determination for proposed pipeline165

152.Application to be dealt with in accordance with the Rules166

153.No‑coverage recommendation166

154.Principles governing the making of a no‑coverage recommendation167

155.Initial classification decision to be made as part of recommendation167

156.Relevant Minister’s determination on application168

157.Principles governing the making of a 15‑year no‑coverage determination or decision not to do so169

158.Effect of 15‑year no‑coverage determination170

159.Consequences of Minister deciding against making 15‑year no‑coverage determination for international pipeline170

Part 3 — Price regulation exemptions

Division 1 — Application for price regulation exemption

160.Application for price regulation exemption171

Division 2 — Recommendations by NCC

161.Application to be dealt with in accordance with the Rules172

162.NCC’s recommendation172

163.General principle governing NCC’s recommendation172

Division 3 — Making and effect of price regulation exemption

164.Making of price regulation exemption173

165.Principles governing the making of a price regulation exemption174

166.Conditions applying to a price regulation exemption174

167.Effect of price regulation exemption175

Division 4 — Limited access arrangements

168.Limited access arrangements for pipeline services provided by international pipeline to which a price regulation exemption applies176

Division 5 — Other matters

169.Other obligations to which service provider is subject176

170.Service provider must not price discriminate in providing international pipeline services177

Part 4 — Extended or modified application of greenfields pipeline incentive

171.Requirement for conformity between pipeline description and pipeline as constructed178

172.Power of relevant Minister to amend pipeline description178

Part 5 — Early termination of greenfields pipeline incentive

173.Greenfields pipeline incentive may lapse179

174.Revocation by consent179

175.Revocation for misrepresentation179

176.Revocation for breach of condition to which a price regulation exemption is subject180

177.Exhaustive provision for termination of greenfields pipeline incentive180

Chapter 6 — Access disputes

Part 1 — Interpretation and application

178.Definitions181

179.Chapter does not limit how disputes about access may be raised or dealt with181

180.No price or revenue regulation for access disputes relating to international pipeline services181

Part 2 — Notification of access dispute

181.Notification of access dispute182

181A.Providing information for certain disputes182

182.Withdrawal of notification183

183.Parties to an access dispute183

Part 3 — Access determinations

184.Determination of access dispute184

185.Dispute resolution body may require parties to mediate, conciliate or engage in an alternative dispute resolution process184

186.Dispute resolution body may terminate access dispute in certain cases185

187.No access determination if dispute resolution body considers there is genuine competition186

188.Restrictions on access determinations186

189.Access determination must give effect to applicable access arrangement187

190.Access determinations and past contributions of capital to fund installations or the construction of new facilities187

191.Rules may allow determination that varies applicable access arrangement for installation of a new facility188

192.Access determinations need not require the provision of a pipeline service188

193.Content of access determinations189

Part 4 — Variation of access determinations

194.Variation of access determination189

Part 5 — Compliance with access determinations

195.Compliance with access determination190

Part 6 — Access dispute hearing procedure

196.Hearing to be in private190

197.Right to representation190

198.Procedure of dispute resolution body190

199.Particular powers of dispute resolution body in a hearing191

200.Disclosure of information192

201.Power to take evidence on oath or affirmation192

202.Failing to attend as a witness193

203.Failing to answer questions etc193

204.Intimidation etc194

205.Party may request dispute resolution body to treat material as confidential194

206.Costs195

207.Outstanding costs are a debt due to party awarded the costs197

Part 7 — Joint access dispute hearings

208.Definition197

209.Joint dispute hearing197

210.Consulting the parties198

211.Constitution and procedure of dispute resolution body for joint dispute hearings198

212.Record of proceedings etc198

Part 8 — Miscellaneous matters

213.Correction of access determinations for clerical mistakes etc199

214.Reservation of capacity during an access dispute199

215.Subsequent service providers bound by access determinations200

216.Regulations about the costs to be paid by parties to access dispute200

Chapter 7 — The Natural Gas Services Bulletin Board

Part 1 — The Bulletin Board Operator

217.The Bulletin Board operator201

218.Obligation to establish and maintain the Natural Gas Services Bulletin Board201

219.Other functions of the Bulletin Board operator201

220.Powers of the Bulletin Board operator202

221.Immunity of the Bulletin Board operator202

222.Fees for services provided203

Part 2 — Bulletin Board information

223.Obligation to give information to the Bulletin Board operator203

224.Person cannot rely on duty of confidence to avoid compliance with obligation204

225.Giving to Bulletin Board operator false and misleading information204

226.Immunity of persons giving information to the Bulletin Board operator204

Part 3 — Protection of information

227.Protection of information by the Bulletin Board operator205

228.Protection of information by employees etc of the Bulletin Board operator206

Chapter 8 — Proceedings under the National Gas Law

Part 1 — Proceedings generally

229.Instituting civil proceedings under this Law209

230.Time limit within which proceedings may be instituted209

Part 2 — Proceedings for breaches of this Law, Regulations or the Rules

231.AER proceedings for breaches of this Law, Regulations or the Rules that are not offences210

232.Proceedings for declaration that a person is in breach of a conduct provision212

233.Actions for damages by persons for breach of conduct provision213

Part 3 — Matters relating to breaches of this Law, the Regulations or the Rules

234.Matters for which there must be regard in determining amount of civil penalty213

235.Breach of a civil penalty provision is not an offence214

236.Breaches of civil penalty provisions involving continuing failure214

237.Conduct in breach of more than 1 civil penalty provision214

238.Persons involved in breach of civil penalty provision or conduct provision215

239.Attempt to breach a civil penalty provision215

240.Civil penalties payable to the Commonwealth215

Part 4 — Judicial review of decisions under this Law, the Regulations and the Rules

241.Definition216

242.Applications for judicial review of decisions of the AEMC216

243.Applications for judicial review of decisions of the Bulletin Board operator217

Part 5 — Merits review and other non‑judicial review

Division 1 — Interpretation

244.Definitions217

Division 2 — Merits review for reviewable regulatory decisions

245.Applications for review222

246.Grounds for review222

247.By when an application must be made223

248.Tribunal must not grant leave unless serious issue to be heard and determined224

249.Leave must be refused if application is about an error relating to revenue amounts below specified threshold224

250.Tribunal must refuse to grant leave if submission not made or is made late225

251.Tribunal may refuse to grant leave to service provider in certain cases226

252.Effect of application on operation of reviewable regulatory decisions227

253.Intervention by others in a review without leave227

254.Leave for reviewable regulatory decision process participants227

255.Leave for user or consumer intervener228

256.Interveners may raise new grounds for review229

257.Parties to a review under this Division229

258.Matters that parties to a review may and may not raise in a review230

258A.Matters that may and may not be raised in a review (designated reviewable regulatory decisions)230

259.Tribunal must make determination232

260.Target time limit for Tribunal for making a determination under this Division235

261.Matters to be considered by Tribunal in making determination236

262.Assistance from NCC in certain cases240

Division 3 — Tribunal review of AER information disclosure decisions under section 329

263.Application for review241

264.Exclusion of public in certain cases241

265.Determination in the review241

266.Tribunal must be taken to have affirmed decision if decision not made within time242

267.Assistance from the AER in certain cases242

Division 4 — General

268.Costs in a review243

269.Amount of costs244

269A.Costs not to be passed on245

270.Review of Part245

Part 6 — Enforcement of access determinations

271.Enforcement of access determinations246

272.Consent injunctions247

273.Interim injunctions247

274.Factors relevant to granting a restraining injunction247

275.Factors relevant to granting a mandatory injunction248

276.Discharge or variation of injunction or other order248

Part 7 — Infringement notices

277.Power to serve notice248

278.Form of notice249

279.Infringement penalty250

280.AER cannot institute proceedings while infringement notice on foot250

281.Late payment of penalty251

282.Withdrawal of notice251

283.Refund of infringement penalty252

284.Payment expiates breach of civil penalty provision252

285.Payment not to have certain consequences252

286.Conduct in breach of more than 1 civil penalty provision252

Part 8 — Further provision for corporate liability for breaches of this Law etc

287.Definition253

288.Offences and breaches by corporations253

289.Corporations also in breach if officers and employees are in breach253

Chapter 9 — The making of the National Gas Rules

Part 1 — General

Division 1 — Interpretation

290.Definitions254

Division 2 — Rule making tests

291.Application of national gas objective256

292.AEMC must take into account form of regulation factors in certain cases256

293.AEMC must take into account revenue and pricing principles in certain cases257

Part 2 — Initial National Gas Rules

294.Initial National Gas Rules for WA257

Part 3 — Procedure for the making of a Rule by the AEMC

295.Initiation of making of a Rule258

296.AEMC may make more preferable Rule in certain cases258

297.AEMC may make Rules that are consequential to a Rule request258

298.Content of requests for a Rule259

299.Waiver of fee for Rule requests259

300.Consolidation of 2 or more Rule requests259

301.Initial consideration of request for Rule260

302.AEMC may request further information from Rule proponent in certain cases261

303.Notice of proposed Rule262

304.Publication of non‑controversial or urgent final Rule determination263

305.“Fast track” Rules where previous public consultation by gas market regulatory body or an AEMC review264

306.Right to make written submissions and comments266

307.AEMC may hold public hearings before draft Rule determination266

308.Draft Rule determination266

309.Right to make written submissions and comments in relation to draft Rule determination268

310.Pre‑final Rule determination hearing may be held268

311.Final Rule determination269

312.Further draft Rule determination may be made where proposed Rule is a proposed more preferable Rule271

313.Making of Rule271

314.Operation and commencement of Rule271

315.Rule that is made to be published on website and made available to the public271

316.Evidence of the National Gas Rules272

Part 4 — Miscellaneous provisions relating to rule making by the AEMC

317.Extension of periods of time in Rule making procedure272

318.AEMC may extend period of time for making of final Rule determination for further consultation273

319.AEMC may publish written submissions and comments unless confidential274

320.AEMC must publicly report on Rules not made within 12 months of public notification of requests274

Chapter 10 — General

Part 1 — Provisions relating to applicable access arrangements

321.Protection of certain pre‑existing contractual rights276

322.Service provider may enter into agreement for access different from applicable access arrangement277

323.Applicable access arrangements continue to apply regardless of who provides pipeline service277

Part 2 — Handling of confidential information

Division 1 — Disclosure of confidential information held by AER

324.Authorised disclosure of information given to the AER in confidence277

325.Disclosure with prior written consent is authorised278

326.Disclosure for purposes of court and tribunal proceedings and to accord natural justice278

327.Disclosure of information given to the AER with confidential information omitted278

328.Disclosure of information given in confidence does not identify anyone279

329.Disclosure of confidential information authorised if detriment does not outweigh public benefit280

Division 2 — Disclosure of confidential information held by relevant Ministers, NCC and AEMC

330.Definitions282

331.Confidentiality of information received for scheme procedure purpose and for making of scheme decision283

Part 3 — Miscellaneous

332.Failure to make a decision under this Law or the Rules within time does not invalidate the decision285

333.Withdrawal of applications relating to coverage or reclassification286

334.Notification of Ministers of participating jurisdictions of receipt of application286

335.Relevant Minister may request NCC to give information or assistance287

336.Savings and transitionals287

Schedule 1 — Subject matter for the National Gas Rules

Schedule 2 — Miscellaneous provisions relating to interpretation

Part 1 — Preliminary

1.Displacement of Schedule by contrary intention298

Part 2 — General

2.Law to be construed not to exceed legislative power of Legislature298

3.Vacant provision299

4.Material that is, and is not, part of Law300

5.References to particular Acts and to enactments300

6.References taken to be included in Act or Law citation etc301

7.Interpretation best achieving Law’s purpose301

8.Use of extrinsic material in interpretation302

9.Compliance with forms304

Part 3 — Terms and references

10.Definitions304

11.Provisions relating to defined terms and gender and number309

12.Meaning of may and must etc309

13.Words and expressions used in statutory instruments309

14.References to Minister310

15.Production of records kept in computers etc311

16.References to this jurisdiction to be implied311

17.References to officers and holders of offices312

18.Reference to certain provisions of Law312

Part 4 — Functions and powers

19.Performance of statutory functions313

20.Power to make instrument or decision includes power to amend or repeal314

21.Matters for which statutory instruments may make provision314

22.Presumption of validity and power to make315

23.Appointments may be made by name or office316

24.Acting appointments316

25.Powers of appointment imply certain incidental powers318

26.Delegation319

27.Exercise of powers between enactment and commencement320

27A.WA modifications of clause 27323

Part 5 — Distance and time

28.Matters relating to distance and time323

Part 6 — Service of documents

29.Service of documents and meaning of service by post etc324

30.Meaning of service by post etc325

Part 7 — Evidentiary matters

Division 1 — Publication on websites

31.Definitions326

32.Publication of decisions on websites327

Division 2 — Evidentiary certificates

33.Definitions327

34.Evidentiary certificates—AER328

35.Evidentiary certificates—AEMC329

36.Evidentiary certificates—NCC330

37.Evidentiary certificates—relevant Minister and Commonwealth Minister331

38.Evidentiary certificates—Bulletin Board operator331

Part 8 — Commencement of this Law and statutory instruments

39.Time of commencement of this Law or a provision of this Law332

40.Time of commencement of a Rule332

Part 9 — Effect of repeal, amendment or expiration

41.Time of Law, the Regulations or Rules ceasing to have effect332

42.Repealed Law, Regulation or Rule provisions not revived333

43.Saving of operation of repealed Law, Regulation or Rule provisions333

44.Continuance of repealed provisions334

45.Law and amending Acts to be read as one334

Part 10 — Offences under this Law

46.Penalty at foot of provision334

47.Penalty other than at foot of provision335

48.Indictable offences and summary offences335

49.Double jeopardy336

50.Attempts and incitement337

Part 11 — Instruments under this Law

51.Schedule applies to statutory instruments337

52.National Gas Rules to be construed so as not to exceed the legislative power of the Legislature of this jurisdiction or the powers conferred by this Law338

53.Invalid Rules339

Schedule 3 — Savings and transitionals

Part 1 — General

1.Definitions341

2.Schedule subject to jurisdictional transitional arrangements in jurisdictional legislation344

Part 2 — General savings provision

3.Saving of operation of old access law and Gas Code344

Part 3 — Classification and coverage of pipelines

4.Pending applications for the classification of pipelines lapse345

5.Old scheme coverage determinations345

6.Old scheme covered transmission pipelines345

7.Old scheme covered distribution pipelines345

8.Pending coverage applications under old scheme (before NCC recommendation)346

9.Pending relevant Minister decisions in relation to coverage under old scheme346

10.Pending relevant Minister decisions in relation to coverage that are reviewed under old scheme347

11.Pending old scheme coverage determinations where no applications for review under old scheme349

12.Pending old scheme coverage determinations where applications for review under old scheme on foot349

13.Pending old scheme no‑coverage determinations where no applications for review under old scheme350

14.Pending old scheme no‑coverage determinations where applications for review under old scheme on foot351

15.Pending coverage revocation applications under old scheme (before NCC recommendation)352

16.Pending relevant Minister decisions in relation to coverage revocation under old scheme353

17.Pending relevant Minister decisions in relation to coverage revocation that are reviewed under old scheme354

18.Pending old scheme coverage revocation determinations where no applications for review under old scheme355

19.Pending old scheme coverage revocation determinations where applications for review under old scheme on foot356

20.Pending old scheme coverage non‑revocation determinations where no applications for review under old scheme357

21.Pending old scheme coverage non‑revocation determinations where applications for review under old scheme on foot358

22.Binding no‑coverage determinations359

23.Pending applications for binding no‑coverage determinations (before NCC recommendation)359

24.Pending relevant Minister decisions for binding no‑coverage determinations under old scheme360

25.Pending relevant Minister decisions in relation to binding no‑coverage determinations that are reviewed under old scheme361

Part 4 — Access arrangements

26.Current access arrangements (other than old scheme limited access arrangements)362

27.Old scheme limited access arrangements363

28.Access arrangements submitted but not approved or rejected before repeal of old scheme363

29.Access arrangement revisions submitted but not approved or rejected before repeal of old scheme364

30.Certain provisions of the Gas Code to continue to apply to current and proposed access arrangements366

31.Certain decisions relating to certain access arrangements are reviewable regulatory decisions for purposes of Chapter 8 Part 5 of the Law367

32.Limited access arrangements submitted but not approved before repeal of old scheme368

33.Extensions and expansions policies368

34.Queuing policies369

Part 5 — Price regulation exemptions

35.Old scheme price regulation exemptions369

36.Pending applications for price regulation exemptions369

37.Pending Commonwealth Minister decisions for price regulation exemptions370

Part 6 — Structural and operational separation (ring fencing)

38.Definitions370

39.Compliance with certain old scheme ring fencing requirements sufficient compliance for 6 month period371

40.Existing waivers of ring fencing obligations372

41.Additional ring fencing obligations373

Part 7 — Access disputes

42.Non‑finalised access disputes373

Part 8 — Investigations and proceedings

43.Investigations into breaches and possible breaches of the old access law or Gas Code374

44.AER may conduct investigations into breaches or possible breaches of Gas Pipelines Access Law not investigated by a relevant Regulator375

45.AER may bring proceedings in relation to breaches of old access law and Gas Code375

Part 9 — Associate contracts

46.Pending associate contract approvals that are approved after commencement day376

47.Pending associate contracts approvals that are not approved376

48.Approved associate contracts378

Part 10 — Other

49.Pending and final tender approval requests lapse378

50.Decisions approving final approval requests379

51.Rights under certain change of law provisions in agreements or deeds not to be triggered379

52.References to relevant Regulator in access arrangements379

53.Old scheme classifications and scheme participant determinations380

Notes about the Western Australian National Gas Access Law text

Compilation table381

Defined terms

 

National Gas Access (WA) Act 2009

An Act to establish a framework to enable third parties to gain access to certain gas pipeline services, to amend the Gas Pipelines Access (Western Australia) Act 1998 and various other Acts, and for other purposes.

The Parliament of Western Australia enacts as follows:

 

Part 1  Preliminary

1.Short title

This is the National Gas Access (WA) Act 2009.

2.Commencement

This Act comes into operation as follows —

(a)sections 1 and 2 — on the day on which this Act receives the Royal Assent;

(b)the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

3.Terms used in this Act

(1)In this Act —

National Gas Access ( Western Australia ) Law means the provisions applying because of section 7;

National Gas Access ( Western Australia ) Regulations means the provisions applying because of section 8;

South Australian Act means the National Gas (South Australia) Act 2008 of South Australia as amended from time to time.

(2)Words and expressions used in the National Gas Access (Western Australia) Law (whether or not defined in section 9(1)) and in this Act have the same respective meanings in this Act as they have in that Law.

(3)This section does not apply to the extent that the context or subject matter otherwise indicates or requires.

4.Crown bound

This Act, the National Gas Access (Western Australia) Law and the National Gas Access ( Western Australia ) Regulations bind the Crown in right of the State and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

5.Application to coastal waters

(1)This Act, the National Gas Access (Western Australia) Law and the National Gas Access ( Western Australia ) Regulations apply in the coastal waters of this State as if the coastal waters were within the limits of the State.

(2)In this section —

adjacent area in respect of the State means the adjacent area of this jurisdiction under the National Gas Access ( Western Australia ) Law (as defined in section 9(1) of this Act);

coastal waters, in relation to this State, means any sea that is on the landward side of the adjacent area in respect of the State but is not within the limits of the State.

6.Extra‑territorial operation

It is the intention of the Parliament that this Act, the National Gas Access (Western Australia) Law and the National Gas Access (Western Australia) Regulations should, so far as possible, operate to the full extent of the extra‑territorial legislative power of the State.

6A.Extension to certain pipelines for hauling gas other than natural gas

(1)The National Gas Access (Western Australia) Law and the National Gas Access ( Western Australia ) Regulations apply to a pipeline for hauling gas other than natural gas if the pipeline constitutes or is part of a system for which a licence is in force under Part 2A of the Energy Coordination Act 1994.

(2)Subsection (1) has effect —

(a)despite the provisions of the National Gas Access (Western Australia) Law and the National Gas Access ( Western Australia ) Regulations; and

(b)as if, for the purposes of that subsection, a reference in that Law and those Regulations to natural gas were amended to include a reference to gas other than natural gas.

(3)In this section —

gas other than natural gas means substances which —

(a)are in a gaseous state at standard temperature and pressure; and

(b)consist of —

(i)naturally occurring hydrocarbons; or

(ii)a naturally occurring or manufactured mixture of hydrocarbons and non‑hydrocarbons, the principal constituent of which is propane, propene, butanes, butenes or a mixture of all or any of those substances or kinds of substances.

6B.Interpretation Act 1984 does not apply

(1)The Interpretation Act 1984 does not apply to the National Gas Access (Western Australia) Law, to regulations under Part 3, or to Rules under the National Gas Access ( Western Australia ) Law.

(2)Despite subsection (1), section 25 of the Interpretation Act 1984 applies to the making of regulations under Part 3.

Part 2  National Gas Access ( Western Australia ) Law and its regulations

7.National Gas Access ( Western Australia ) Law

(1)The Western Australian National Gas Access Law text —

(a)applies as a law of Western Australia ; and

(b)as so applying may be referred to as the National Gas Access ( Western Australia ) Law.

(2)In subsection (1) —

Western Australian National Gas Access Law text means the text that results from modifying the National Gas Law, as set out in the South Australian Act Schedule for the time being in force, to give effect to section 7A(3) and (4) and Schedule 1.

7A.Amendments to Schedule to South Australian Act

(1)This section applies if, after the day on which the South Australian Act receives the Royal Assent, the Parliament of South Australia enacts a provision to make an amendment to the Schedule to the South Australian Act as in force from time to time (an SA Schedule amendment).

(2)The Minister may by order declare that an SA Schedule amendment is relevant to the Western Australian National Gas Access Law text.

(3)If the Minister has not declared that an SA Schedule amendment is relevant, the Western Australian National Gas Access Law text remains as if the amendment had not been made.

(4)If the Minister has declared that an SA Schedule amendment is relevant, the Western Australian National Gas Access Law text remains, until the beginning of the day fixed by subsection (5), as if the amendment had not been made.

(5)The day fixed is the day on which the order is published in the Government Gazette unless a later day is specified in the order, in which case it is the day specified.

(6)Subsection (4) does not give an SA Schedule amendment any earlier effect in this State than it has in South Australia .

7B.Regulations amending Schedule 1 consequentially

The Governor may make regulations under this section amending Schedule 1 as is necessary or expedient to deal with consequences of —

(a)an SA Schedule amendment; or

(b)giving effect to section 7A(3) or (4).

8.National Gas Access ( Western Australia ) Regulations

The regulations in force for the time being under Part 3 —

(a)apply as regulations in force for the purposes of the National Gas Access ( Western Australia ) Law; and

(b)as so applying may be referred to as the National Gas Access ( Western Australia ) Regulations.

9.Terms used in National Gas Access ( Western Australia ) Law and its regulations

(1)In the National Gas Access (Western Australia) Law and the National Gas Access ( Western Australia ) Regulations —

adjacent area of another participating jurisdiction means the offshore area of a State other than this State or of the Northern Territory within the meaning given in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 of the Commonwealth;

adjacent area of this jurisdiction means the offshore area of the State within the meaning given in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 of the Commonwealth;

Court means the Supreme Court of Western Australia;

designated Minister means the Minister to whom the administration of this Act has been committed;

dispute resolution body means —

(a)in relation to an ERA pipeline, the WA arbitrator;

(b)in relation to any other pipeline, the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth;

ERA pipeline means a pipeline other than —

(a)an international pipeline; or

(b)any other pipeline for which section 2 of the National Gas Access ( Western Australia ) Law defines the “relevant Minister” to mean a person other than the Minister responsible for the administration of this Act;

Legislature of this jurisdiction means the Parliament of Western Australia;

National Gas Law or this Law means the National Gas Access ( Western Australia ) Law;

regulator means —

(a)in relation to an ERA pipeline, the ERA;

(b)in relation to any other pipeline, the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth;

this jurisdiction means the State of Western Australia ;

WA arbitrator means the Western Australian Energy Disputes Arbitrator under Part 6 Division 3 of the Energy Arbitration and Review Act 1998.

(2)A pipeline that is an offshore Western Australian pipeline as defined in section 3(1) of the Australian Energy Market Act 2004 of the Commonwealth is to be regarded as being situated wholly within Western Australia for the purpose of determining who is the relevant Minister under the National Gas Access ( Western Australia ) Law.

(3)The Acts Interpretation Act 1915, and other Acts, of South Australia do not apply to the National Gas Law as set out in the Schedule to the South Australian Act in its application, with modifications, as a law of Western Australia.

[Section 9 amended by No. 42 of 2010 s. 184.]

Part 3  Regulations for the National Gas Access ( Western Australia ) Law

10.Making regulations

(1)The Governor, acting with the advice and consent of the Executive Council, may make regulations contemplated by, or necessary or expedient for giving effect to, the National Gas Access ( Western Australia ) Law.

(2)Without limiting subsection (1), the regulations may prescribe fees in respect of any matter under the National Gas Access ( Western Australia ) Law, and provide for the waiver or refund of such fees.

(3)Regulations under this Part may —

(a)be of general or limited application;

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

(c)in relation to fees, prescribe differential fees or provide for fees to be determined according to prescribed factors.

(4)Once the Governor has made a regulation prescribing 1 or more pipelines to be designated pipelines for the purposes of the definition of designated pipeline in section 2 of the National Gas Access ( Western Australia ) Law, the Governor cannot make another regulation that prescribes any other pipeline to be a designated pipeline.

(5)Regulations under this Part may be made only on the unanimous recommendation of the Ministers of the participating jurisdictions.

(6)Regulations under this Part have to be published in the Government Gazette.

11.Regulations may deal with transitional matters

(1)Without limiting the generality of section 10, the regulations may deal with matters of a transitional nature relating to the transition from the application of provisions of the Gas Pipelines Access Law to the application of provisions of the National Gas Access ( Western Australia ) Law.

(2)Any provision of the regulations that deals with a matter of a transitional nature under subsection (1) may be expressed to take effect from a time that is earlier than the beginning of the day on which the regulations containing the provision are made, not being a time earlier than the commencement of this section.

(3)If a provision of the regulations is expressed to take effect from a time that is earlier than the beginning of the day on which the regulations containing the provision are published in the Government Gazette, the provision must also provide that the provision does not operate so as —

(a)to prejudicially affect the rights of a person (other than the rights of a Minister of a participating jurisdiction or an entity involved in the administration of the Gas Pipelines Access Law or the National Gas Access (Western Australia) Law) existing before the day of publication of those regulations; or

(b)to impose liabilities on any person (other than liabilities imposed on a Minister of a participating jurisdiction or an entity involved in the administration of the Gas Pipelines Access Law or the National Gas Access (Western Australia) Law) in respect of anything done or omitted to be done before the day of publication of those regulations.

(4)In this section —

Gas Pipelines Access Law has the meaning that the term had under section 3(1) of the Gas Pipelines Access ( Western Australia ) Act 1998 before the commencement of this section;

matters of a transitional nature includes matters of an application or savings nature;

National Gas Access ( Western Australia ) Law means the provisions applying from time to time because of section 7, and it includes Rules made and in force under those provisions from time to time.

Part 4 — Cross vesting of functions and powers

12.Conferral of powers on Commonwealth Minister and Commonwealth bodies to act in this State

(1)The Commonwealth Minister and the Commonwealth bodies have power to do acts in or in relation to this State in the performance or exercise of a function or power expressed to be conferred on them respectively by the national gas legislation of another participating jurisdiction.

(2)In subsection (1) —

Commonwealth bodies means any of the following:

(a)the AER;

(b)the NCC;

(c)the Tribunal.

13.Conferral of powers on Ministers of other participating States and Territories to act in this State

The Minister of another participating jurisdiction has power to do acts in or in relation to this State in the performance or exercise of a function or power expressed to be conferred on the Minister by the national gas legislation of another participating jurisdiction.

14.Conferral of functions or powers on State bodies

If the national gas legislation of another participating jurisdiction confers a function or power on the Minister or another agency or instrumentality of this State constituted by a law of this State, the Minister or the other agency or instrumentality —

(a)may perform that function or exercise that power; and

(b)may do all things necessary or expedient to be done in connection with the performance or exercise of that function or power.

Part 5 — General

15.Exemption from taxes

(1)Any duty or other tax imposed by or under a law of this State is not payable in relation to —

(a)an exempt matter; or

(b)anything done (including, for example, a transaction entered into or an instrument or document made, executed, lodged or given) because of, or arising out of, an exempt matter.

(2)In this section —

exempt matter means a transfer of assets or liabilities —

(a)that is made for the purpose of ensuring that a person does not carry on a business of producing, purchasing or selling natural gas or processable gas in breach of any ring fencing requirements of any national gas legislation or for the purpose of the separation of certain businesses or business activities from other businesses or business activities of a person as required by an AER ring fencing determination; and

(b)that the Minister and the Treasurer declare from time to time, by order notice of which is published in the Government Gazette, to be an exempt matter for the purposes of this section.

16.Actions in relation to cross boundary pipelines

(1)If a pipeline is a cross boundary pipeline, any action taken under the national gas legislation of a participating jurisdiction in whose jurisdictional area a part of the pipeline is situated —

(a)by, or in relation to, a relevant Minister; or

(b)by the Court within the meaning that term has in that legislation in relation to action taken by, or in relation to, a relevant Minister,

is taken also to be taken under the national gas legislation of each participating jurisdiction in whose jurisdictional area a part of the pipeline is situated (that other legislation) —

(c)by, or in relation to, a relevant Minister within the meaning that term has in that other legislation; or

(d)by the Court within the meaning that term has in that other legislation,

as the case requires.

(2)Despite subsection (1), no proceeding for judicial review or for a declaration, injunction, writ, order or remedy may be brought before the Court to challenge or question any action, or purported action, of a relevant Minister taken, or purportedly taken, in relation to a cross boundary distribution pipeline unless this jurisdiction has been determined to be the participating jurisdiction with which the cross boundary distribution pipeline is most closely connected.

(3)A reference in this section —

(a)to an action that is taken includes a reference to —

(i)a decision or determination that is made; or

(ii)an omission that is made;

(b)to a purported action that is purportedly taken includes a reference to a purported decision or determination that is purportedly made.

(4)In this section —

cross boundary pipeline means —

(a)a cross boundary transmission pipeline; or

(b)a cross boundary distribution pipeline.

17.Conferral of functions and powers on Commonwealth bodies

(1)Clause 2 of Schedule 2 to the National Gas Access (Western Australia) Law has effect in relation to the operation of any provision of this Act, or any regulation forming part of the National Gas Access (Western Australia) Regulations, as if the provision or regulation formed part of the National Gas Access ( Western Australia ) Law.

(2)Subsection (1) does not limit the effect that a provision or regulation would validly have apart from the subsection.

Part 6 — Other local provisions

Division 1 — Economic Regulation Authority

18.Expertise of Director of Energy Safety to be used

In performing its functions under this Act the ERA is to make appropriate use of the expertise of the Director of Energy Safety under the Energy Coordination Act 1994 in relation to safety or technical standards in the gas supply industry.

Division 2 — Miscellaneous

19.Preservation of certain contracts relating to privatised DBNGP system

(1)The national provisions do not affect the continuance or operation of an exempt contract.

(2)Despite the repeal of the Gas Pipelines Access (Western Australia) Act 1998 section 96, that section continues to apply to a contract other than an exempt contract as if the references in section 96(1) and (2)(b) to “the Code” were references to the relevant national provisions.

(3)In this section — 

exempt contract —

(a)means a contract in respect of which a declaration under the Gas Corporation Act 1994 Schedule 5 clause 6 was in force immediately before the coming into operation of the Dampier to Bunbury Pipeline Act 1997 Schedule 4 clause 17(4); and

(b)includes a contract entered into —

(i)in substitution for a contract referred to in paragraph (a) or any provision of such a contract; or

(ii)by way of amendment of a contract referred to in paragraph (a) or subparagraph (i);

national provisions means the National Gas Access (Western Australia) Law, the Rules made under that Law, and the National Gas Access ( Western Australia ) Regulations;

relevant national provisions means any of the national provisions having the same purpose as a provision of the Gas Code, as defined in the National Gas Access (Western Australia) Law section 2.

20.Transitional provisions for Kalgoorlie to Kambalda pipeline

(1)This section applies to the pipeline to which licence PL27, granted under the Petroleum Pipelines Act 1969, applies.

(2)A service provider has a period of 6 months after the day on which section 30 comes into operation (the transitional period) within which to —

(a)submit to the ERA an access arrangement; or

(b)apply for a determination that the pipeline be no longer a covered pipeline; or

(c)apply under section 112 of the National Gas Access ( Western Australia ) Law for a light regulation determination.

(3)Despite section 111(b) of the National Gas Access (Western Australia) Law, an application may be made in accordance with subsection (2)(c), even though there is no applicable access arrangement for the pipeline, and Chapter 3 Part 2 Division 1 Subdivision 1 of that Law applies to the application.

21.Regulations

(1)Without limiting the power to make regulations under Part 3, the Governor acting with the advice and consent of the Executive Council may make other regulations contemplated by, or necessary or expedient for giving effect to, this Act.

(2)Regulations under subsection (1) may make provision for and in relation to the imposition and payment of fees and charges in connection with the performance of functions the arbitrator has under this Act, to the extent that the costs connected with performing those functions are not covered by fees under the National Gas Access ( Western Australia ) Regulations.

(3)If it is inappropriate to prescribe a set fee or charge in connection with the performance of a particular function the regulations may provide for the method of calculating the fee or charge, including calculation according to the cost of performing that function.

(4)Despite the National Gas Access (Western Australia) Law or Rules made under that Law, regulations under subsection (1) may make provision for further matters to affect the setting of a reference tariff for a reference service provided by means of a distribution pipeline to the extent that the service is used for the supply of natural gas to an end user prescribed by the regulations to be a small use customer for the purposes of this subsection.

(5)Regulations under subsection (1) may prescribe a period ending not later than 31 December 2031 as a period during which the fixed principle referred to in clause 7.13(a)(ii) of the Revised Access Arrangement for the Dampier to Bunbury Natural Gas Pipeline dated 21 November 2006 applies despite anything in the National Gas Access (Western Australia) Law or Rules made under that Law, and during a period prescribed the fixed principle applies accordingly.

22.Review of Act

(1)The Minister is to cause a person, other than an officer of a department or body for which the Minister is responsible, to carry out a review of the operation and effectiveness of this Act as soon as is practicable after the review day described in subsection (2) and, in the course of that review, consideration is to be given, and regard is to be had, to —

(a)the effectiveness of the operations of the ERA and the WA arbitrator; and

(b)the need for the continuation of section 21(4) and (5); and

(c)any other matters that appear to the Minister to be relevant to the operation and effectiveness of this Act.

(2)The review day is 1 July 2013 unless, before that day a licence is granted under the Petroleum Pipelines Act 1969 for a pipeline that is to be partly in the jurisdictional area of this State and partly in the jurisdictional area of the Northern Territory or South Australia, in which case the review day is the day on which the licence is granted.

(3)The person carrying out the review is to prepare and give to the Minister a report based on the review within sufficient time to enable the Minister to comply with subsection (4).

(4)The Minister is to prepare a response to the report and, as soon as is practicable after the response is prepared, and in any event not more than 12 months after the review day described in subsection (2), cause the report and the response to be laid before each House of Parliament.

Part 7 — Various Acts amended

Division 1 — Gas Pipelines Access ( Western Australia ) Act 1998

23.Act amended

This Division amends the Gas Pipelines Access ( Western Australia ) Act 1998.

24.Long title replaced

Delete the long title and insert:

 

An Act to provide for a review board and for an official who may arbitrate certain disputes, and for related purposes.

 

25.Preamble deleted

Delete the preamble.

26.Section 1 amended

In section 1 delete “Gas Pipelines Access ( Western Australia ) Act 1998.” and insert:

 

Energy Arbitration and Review Act 1998.

 

27.Sections 2 to 4 deleted

Delete sections 2 to 4.

28.Section 5 amended

In section 5 delete “bind” and all of the section before it and insert:

 

This Act binds

 

29.Sections 6 to 8 deleted

Delete sections 6 to 8.

30.Parts 2 to 5 deleted

Delete Parts 2 to 5.

31.Part 6 heading replaced

Delete the heading to Part 6 and insert:

 

Part 6  Review board and arbitrator

 

32.Part 6 Division 1 deleted

Delete Part 6 Division 1.

33.Part 6 Division 2 heading replaced

Delete the heading to Part 6 Division 2 and insert:

 

Division 2 — Review board

 

34.Section 49 amended

In section 49 in the definition of Board delete “Western Australian Gas Review Board” and insert:

 

Western Australian Electricity Review Board

 

35.Part 6 Division 2 Subdivision 2 heading replaced

Delete the heading to Part 6 Division 2 Subdivision 2 and insert:

 

Subdivision 2 — Western Australian Electricity Review Board established

 

36.Section 50 amended

(1)In section 50(1) delete “Western Australian Gas Review Board” and insert:

 

Western Australian Electricity Review Board

 

(2)After section 50(1) insert:

 

(2A)The Board has functions under the Electricity Industry Act 2004.

 

37.Section 57 amended

In section 57(1) delete “the Gas Pipelines Access ( Western Australia ) Law and”.

38.Section 59 amended

In section 59(4) delete “Subject to the Gas Pipelines Access ( Western Australia ) Law, a party” and insert:

 

A party

 

39.Section 61 amended

In section 61 in the definition of arbitrator delete “Gas” and insert:

 

Energy

 

40.Part 6 Division 3 Subdivision 2 heading amended

In the heading to Part 6 Division 3 Subdivision 2 delete “Gas” and insert:

 

Energy

 

41.Section 62 amended

In section 62(1) delete “Gas” and insert:

 

Energy

 

42.Section 73 amended

In section 73(1):

(a)delete paragraphs (a) and (c) and insert:

 

(a)by or under the National Gas Access (WA) Act 2009; or

(b)by or under the Electricity Industry Act 2004; or

 

(b)after paragraph (d) delete “and” and insert:

 

or

 

43.Section 74 amended

After section 74(2) insert:

 

(3)Regulations referred to in subsection (1) may make provision for and in relation to the imposition and payment of fees and charges in connection with the performance of functions the arbitrator has under those regulations.

(4)If it is inappropriate to prescribe a set fee or charge in connection with the performance of a particular function the regulations may provide for the method of calculating the fee or charge, including calculation according to the cost of performing that function.

 

44.Section 76 amended

In section 76:

(a)delete “under the Code” and insert:

 

in performing functions referred to in section 73(1)

 

(b)delete “local Regulator as defined in section 11.” and insert:

 

Economic Regulation Authority established by the Economic Regulation Authority Act 2003.

 

45.Section 77 amended

In section 77 delete “provided for by the Gas Pipelines Access ( Western Australia ) Law and the regulations” and insert:

 

involved in performing the arbitrator’s functions

 

46.Section 81 amended

In section 81 delete “under this Act”.

47.Section 82 amended

(1)In section 82(2) after “called” insert:

 

the “Western Australian Energy Disputes Arbitrator Account”, and it is to be a continuation of the account formerly called

 

(2)Delete section 82(3)(a)(ii) and insert:

 

(ii)fees and charges payable to the arbitrator or the Board in connection with the performance of the functions of the arbitrator or the Board;

 

48.Section 87 deleted

Delete section 87.

49.Section 88 deleted

Delete section 88.

50.Parts 7 and 8 deleted

Delete Parts 7 and 8.

51.Schedules deleted

Delete Schedule 1 and its Appendix and Schedules 2 and 3.

Division 2 — Economic Regulation Authority Act 2003

52.Act amended

This Division amends the Economic Regulation Authority Act 2003.

53.Section 25 amended

In section 25:

(a)delete paragraph (c) and insert:

 

(c)the functions it is given by or under the National Gas Access (WA) Act 2009; and

 

(b)after each of paragraphs (a), (b) and (d) insert:

 

and

 

54.Section 28 amended

(1)In section 28(3)(b) delete “referred to in section 36(1) of the Gas Pipelines Access ( Western Australia ) Act 1998 or” and insert:

 

given by or under the National Gas Access (WA) Act 2009 or referred to in

 

(2)In section 28(5)(b) delete “Gas Pipelines Access ( Western Australia ) Act 1998, must send a copy of the direction to the Code Registrar within the meaning of that Act.” and insert:

 

National Gas Access (WA) Act 2009, must send a copy of the direction to the Australian Energy Market Commission established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia .

 

55.Section 32 amended

In section 32(1) delete “Gas Pipelines Access ( Western Australia ) Law” and insert:

 

National Gas Access ( Western Australia ) Law

 

Division 3 — Electricity Industry Act 2004

56.Act amended

This Division amends the Electricity Industry Act 2004.

57.Section 3 amended

In section 3:

(a)in the definition of arbitrator delete “Gas Pipelines Access ( Western Australia ) Act 1998” and insert:

 

Energy Arbitration and Review Act 1998

 

(b)in the definition of Board delete “Gas Pipelines Access ( Western Australia ) Act 1998” and insert:

 

Energy Arbitration and Review Act 1998

 

58.Section 113 deleted

Delete section 113.

59.Section 125 amended

(1)Delete section 125(2)(b) and insert:

 

(b)make other provisions that it is necessary or convenient to make,

 

(2)After section 125(2) insert:

 

(3A)Regulations that, immediately before the day on which the National Gas Access (WA) Act 2009 section 59(1) comes into operation, apply provisions of the Gas Pipelines Access (Western Australia) Act 1998 continue to have the effect they had immediately before that day until the contrary intention appears from a regulation made after that day.

 

60.Section 130 amended

(1)In section 130(1) in the definition of gas pipelines access provisions delete “Schedule 1.” and insert:

 

Schedule 1 as in force immediately before the day on which the National Gas Access (WA) Act 2009 section 51 deleted it.

 

(2)In section 130(8) delete “Gas Pipelines Access ( Western Australia )” and insert:

 

Energy Arbitration and Review

 

(3)Delete section 130(9) and insert:

 

(9)For proceedings to which subsection (8) extends the provisions described in that subsection, sections 57(1) and 59(4) of those provisions apply only to the extent that it is consistent with the Code for them to apply.

 

61.Section 133 amended

In section 133(1) before “in connection with” insert:

 

in relation to the imposition and payment of fees and charges in connection with any matter under this Act, including

 

Division 4 — Energy Coordination Act 1994

62.Act amended

This Division amends the Energy Coordination Act 1994.

63.Section 11J deleted

Delete section 11J.

64.Section 11M amended

In section 11M(5) delete paragraph (a) and “or” after it and insert:

 

(a)the National Gas Access ( Western Australia ) Law; or

 

65.Section 11V amended

Delete section 11V(2) and insert:

 

(2)A licence does not have effect to the extent that it would be inconsistent with the National Gas Access ( Western Australia ) Law.

 

66.Section 11ZAC amended

Delete section 11ZAC(4)(b) and insert:

 

(b)an access arrangement under the National Gas Access ( Western Australia ) Law.

 

67.Schedule 1A amended

In Schedule 1A in paragraph (a) delete “Gas Pipelines Access ( Western Australia ) Law;” and insert:

 

National Gas Access ( Western Australia ) Law;

 

Division 5 — Other Acts amended

68.Constitution Acts Amendment Act 1899 amended

(1)This section amends the Constitution Acts Amendment Act 1899.

(2)In Schedule V Part 1 Division 1 in the item for the Western Australian Gas Disputes Arbitrator:

(a)delete “Gas Disputes” and insert:

 

Energy Disputes

 

(b)delete “Gas Pipelines Access ( Western Australia )” and insert:

 

Energy Arbitration and Review

 

69.Financial Management Act 2006 amended

(1)This section amends the Financial Management Act 2006.

(2)In Schedule 1 in the item “Western Australian Gas Disputes Arbitrator” delete “Gas” and insert:

 

Energy

 

70.Freedom of Information Act 1992 amended

(1)This section amends the Freedom of Information Act 1992.

(2)Delete the Glossary clause 7A(1) and insert:

 

(1)In this clause —

access regulation functions means the functions given by or under the National Gas Access (WA) Act 2009;

arbitrator has the meaning given in section 61 of the Energy Arbitration and Review Act 1998;

Authority means the Economic Regulation Authority established by the Economic Regulation Authority Act 2003;

Board has the meaning given in section 49 of the Energy Arbitration and Review Act 1998.

 

71.Parliamentary Commissioner Act 1971 amended

(1)This section amends the Parliamentary Commissioner Act 1971.

(2)In Schedule 1 in the item for the Economic Regulation Authority delete “referred to in section 36(1) of the Gas Pipelines Access ( Western Australia ) Act 1998 and” and insert:

 

given by or under the National Gas Access (WA) Act 2009 or referred to in

 

72.Petroleum Pipelines Act 1969 amended

(1)This section amends the Petroleum Pipelines Act 1969.

(2)Delete section 5A.

 

Schedule 1 — Some modifications to National Gas Law as in Schedule to South Australian Act

[s. 7(2)]

1.Purpose of this Schedule

(1)This Schedule makes the modifications to the underlying National Gas Law that, together with modifications giving effect to section 7A(3) and (4), result in the text that section 7(1) applies as the National Gas Access (Western Australia) Law.

(2)In subclause (1) —

underlying National Gas Law means the National Gas Law, as set out in the South Australian Act Schedule for the time being in force.

2.Section 1 modified

In section 1 after “National Gas” insert —

 

Access

 

3.Section 2 modified

(1)In section 2 delete the definitions of dispute resolution body, old access law and Regulations.

(2)In section 2 insert in alphabetical order:

 

dispute resolution body has the meaning given to that term in section 9(1) of the National Gas Access (WA) Act 2009;

old access law means Schedule 1 to the Gas Pipelines Access ( Western Australia ) Act 1998 as in force from time to time before the commencement of section 30 of the National Gas Access (WA) Act 2009;

Regulations means the regulations made under Part 3 of the National Gas Access (WA) Act 2009 that apply as a law of this jurisdiction;

regulator has the meaning given to that term in section 9(1) of the National Gas Access (WA) Act 2009;

WA arbitrator has the meaning given to that term in section 9(1) of the National Gas Access (WA) Act 2009.

 

(3)In section 2 in the definition of AER after “Commonwealth” insert:

 

except if section 2A requires the term to be given a different meaning

 

(4)In section 2 in the definition of Gas Code delete “in force from time to time before the commencement of section 20 of the National Gas (South Australia) Act 2008 of South Australia ;” and insert:

 

amended and applying from time to time before the commencement of section 30 of the National Gas Access (WA) Act 2009 as a law of Western Australia ;

 

(5)In section 2 in the definition of initial National Gas Rules delete “made” and insert:

that, when section 30 of the National Gas Access (WA) Act 2009 comes into operation, apply

4.Sections 2A and 2B inserted

After section 2 insert:

 

2A.Meaning of AER modified

(1)In this Law, other than in the definition of AER in section 2, a reference to the AER is to be read as a reference to the regulator (whether the ERA or the AER) except to the extent that subsection (2) gives a different meaning.

(2)To the extent to which a reference to the AER is capable of being read as a reference to the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth acting as the disputes resolution body, the term is to be read as having or including that meaning.

2B.References to WA application Act

In this Law, a reference to the National Gas Access ( Western Australia ) Act 2008, if any, is to be read as a reference to the National Gas Access (WA) Act 2009.

 

5.Chapter 1 Part 1A inserted

After Chapter 1 Part 1 insert:

 

Part 1A — Postponement of Natural Gas Services Bulletin Board provisions

20A.Minister may fix day on which provisions apply

To the extent that a provision of this Law relates to the Natural Gas Services Bulletin Board, the provision does not apply before a day is fixed by the Minister, by an order notice of which is published in the Government Gazette, as the day on and after which provisions of this Law relating to the Natural Gas Services Bulletin Board apply.

 

6.Section 29 modified

In section 29 after “Commonwealth” insert:

 

or by the ERA under section 29 of the Economic Regulation Authority Act 2003

 

7.Section 30 modified

(1)In section 30 delete “Section 44AAF” and insert:

 

(1)Section 44AAF

 

(2)At the end of section 30 insert:

 

(2)Without limiting section 2A, that section also applies to section 44AAF as adopted by subsection (1) and, when the adopted section is read as if a reference in it to the AER were a reference to the ERA, it is further modified as follows:

(a)delete subsection (3)(c) of the adopted section and insert:

 

(c)the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth;

 

(b)delete subsection (6)(a)(i) of the adopted section and insert:

 

(i)an ERA member, a person assisting the ERA in the performance of its functions or a delegate of the ERA;

 

8.Chapter 2 Part 1A inserted

After Chapter 2 Part 1 insert:

 

Part 1A — Functions and powers of WA arbitrator

68A.Manner in which WA arbitrator must perform or exercise certain functions or powers

(1)The WA arbitrator must, in performing or exercising a function or power that relates to an access determination, perform or exercise that function or power in a manner that will or is likely to contribute to the achievement of the national gas objective.

(2)In addition, the WA arbitrator —

(a)must take into account the revenue and pricing principles when making an access determination relating to a rate or charge for a pipeline service; and

(b)may take into account the revenue and pricing principles when performing or exercising any other function or power that relates to an access determination, if the WA arbitrator considers it appropriate to do so.

(3)For the purposes of subsection (2)(a), a reference to a reference service in the revenue and pricing principles must be read as a reference to a pipeline service.

 

9.Section 181A inserted

After section 181 insert:

 

181A.Providing information for certain disputes

(1)If the dispute resolution body for a dispute notified under section 181(1) is the WA arbitrator —

(a)the WA arbitrator is to inform the ERA that notification of the dispute has been received; and

(b)the WA arbitrator may request the ERA to give the WA arbitrator any information in the ERA’s possession that is relevant to the dispute.

(2)The ERA is to give the WA arbitrator the information requested, whether or not it is confidential and whether or not it came into the ERA’s possession for the purposes of resolving the dispute.

(3)If the ERA gives the WA arbitrator information that is confidential, the ERA is to identify the nature and extent of the confidentiality and the WA arbitrator is to treat the information accordingly.

 

10.Section 231 modified

(1)After section 231(1) insert:

 

(1A)When subsection (1) is read as if a reference in it to the AER were a reference to the ERA, the subsection is to be read as if “on behalf of the Commonwealth” had been deleted.

 

(2)After section 231(3) insert:

 

(3A)When subsection (3) is read as if a reference in it to the AER were a reference to the ERA, the subsection is to be read as if “on behalf of the Commonwealth” had been deleted.

 

11.Section 240 modified

In section 240 delete “Commonwealth.” and insert:

 

State of Western Australia except if the order is made on an application by the AER on behalf of the Commonwealth, in which case it is payable to the Commonwealth.

 

12.Section 290 modified

In section 290 in the definition of publish paragraph (a) delete “section 294 or 315” and insert:

 

section 315

 

13.Section 294 replaced

Delete section 294 and insert:

 

294.Initial National Gas Rules for WA

(1)The National Gas Rules (the initial National Gas Rules) that apply upon section 30 of the National Gas Access (WA) Act 2009 coming into operation are as set out in the document called the National Gas Rules 2008, signed on 1 July 2008 by the Minister for Energy of South Australia, as affected, if applicable, by any amendments made by the AEMC under national gas legislation before the coming into operation of that section.

(2)Subsection (1) does not prevent the AEMC from making Rules under this Chapter that amend or revoke the initial National Gas Rules.

 

14.Schedule 1 modified

In Schedule 1 item 82 delete “section 20 of the National Gas (South Australia) Act 2008 of South Australia.” and insert:

 

section 30 of the National Gas Access (WA) Act 2009 of Western Australia .

 

15.Schedule 2 clause 27A inserted

After Schedule 2 clause 27 insert:

 

27A.WA modifications of clause 27

Clause 27 applies to a conferral of power by this Law to the extent that the power derives from an amendment to the Schedule to the National Gas (South Australia) Act 2008 of South Australia  —

(a)as if references in clause 27(2), (5) and (6) to the commencement of the empowering provision referred to the time when the Western Australian National Gas Access Law text, as defined in section 7(2) of the National Gas Access (WA) Act 2009, is affected by the amendment; and

(b)as if the reference in clause 27(3) to additional power that would be conferred had an Act of South Australia commenced referred to additional power that would be conferred had the Western Australian National Gas Access Law text been already affected by the amendment; and

(c)as if clause 27(7) had been omitted.

 

16.Schedule 2 clause 34 modified

(1)In Schedule 2 clause 34 delete “In any proceedings” and insert:

 

(1)In any proceedings

 

(2)At the end of Schedule 2 clause 34 insert:

 

(2)When subclause (1) is read as if a reference in it to the AER were a reference to the ERA, the subclause is to be read as if “an AER member, or an SES employee or acting SES employee assisting the AER as mentioned in section 44AAC of the Trade Practices Act 1974 of the Commonwealth” had been deleted and the following had been inserted instead:

 

a member of the ERA

 

17.Schedule 2 clause 50 replaced

Delete Schedule 2 clause 50 and insert:

 

50.Attempts and incitement

Section 555A(1) and (2) of The Criminal Code apply in relation to a simple offence under this Law as if it were a simple offence under The Criminal Code.

 

18.Schedule 3 modified

(1)In Schedule 3 clause 1 in the definition of commencement day delete “section 20 of the new application Act” and insert:

 

section 30 of the National Gas Access (WA) Act 2009

 

(2)In Schedule 3 clause 45(3)(b) delete “Gas Pipelines Access ( South Australia ) Regulations 1999 were not revoked.” and insert:

 

Gas Pipelines Access ( Western Australia ) Regulations 2000 were not repealed.

 

Notes about National Gas Access (WA) Act 2009

1This is a compilation of the National Gas Access (WA) Act 2009 and includes the amendments made by the other written laws referred to in the following table.

Compilation table

Short title

Number and year

Assent

Commencement

National Gas Access (WA) Act 2009

16 of 2009

1 Sep 2009

s. 1 and 2: 1 Sep 2009 (see s. 2(a));
Act other than s. 1 and 2: 1 Jan 2010 (see s. 2(b) and Gazette 31 Dec 2009 p. 5327)

Petroleum and Energy Legislation Amendment Act 2010 s. 184

42 of 2010

28 Oct 2010

25 May 2011 (see s. 2(b) Gazette 24 May 2011 p. 1892)

 

 

Note  Western Australian National Gas Access Law text

[This note is not part of the Act. It shows the text that, under section 7(1), applies as the National Gas Access ( Western Australia ) Law.]

Chapter 1 Preliminary

Part 1 Citation and interpretation

1.Citation

This law may be cited as the National Gas Access Law.

[Section 1 modified by WA Act Sch. 1 cl. 2.]

2.Definitions

In this Law—

15‑year no‑coverage determination means a determination of a relevant Minister under Chapter 5 Part 2;

ACCC means the Australian Competition and Consumer Commission established by section 6A of the Trade Practices Act 1974 of the Commonwealth;

access arrangement means an arrangement setting out terms and conditions about access to pipeline services provided or to be provided by means of a pipeline;

access determination means a determination of the dispute resolution body under Chapter 6 Part 3 and includes a determination varied under Part 4 of that Chapter;

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

AER means the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth except if section 2A requires the term to be given a different meaning;

AER economic regulatory decision means a decision (however described) of the AER under this Law or the Rules performing or exercising an AER economic regulatory function or power;

AER economic regulatory function or power means a function or power performed or exercised by the AER under this Law or the Rules that relates to the economic regulation of pipeline services provided by a service provider—

(a)by means of; or

(b)in connection with,

a scheme pipeline and includes a function or power performed or exercised by the AER under this Law or the Rules that relates to—

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

(d)a ring fencing decision;

(e)an applicable access arrangement decision;

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

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

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

(a)under the Rules; or

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

applicable access arrangement decision means—

(a)a full access arrangement decision; or

(b)a limited access arrangement decision;

approved associate contract means an associate contract approved by the AER under an associate contract decision;

associate in relation to a person has the same meaning it would have under Division 2 of Part 1.2 of the Corporations Act 2001 of the Commonwealth if sections 13, 16(2) and 17 did not form part of that Act;

associate contract means—

(a)a contract, arrangement or understanding between a service provider and an associate of the service provider in connection with the provision of an associate pipeline service; or

(b)a contract, arrangement or understanding between a service provider and any person in connection with the provision of an associate pipeline service—

(i)that provides a direct or indirect benefit to an associate; and

(ii)that is not at arm’s length;

associate contract decision means a decision of the AER under the Rules that approves or does not approve an associate contract for the purposes of Chapter 4 Part 2 Division 5;

associate pipeline service means a pipeline service provided by means of a pipeline other than a pipeline to which a 15‑year no coverage determination applies;

Bulletin Board information means information that—

(a)a person gives to the Bulletin Board operator to comply with section 223(1); or

(b)a person gives to the Bulletin Board operator in circumstances expressly permitted by the Rules;

Bulletin Board operator means the person prescribed by the Regulations for the purposes of section 217;

charge, in relation to a pipeline service, means the amount that is payable by a user to a service provider for the provision of the pipeline service to that user;

civil penalty means—

(a)in the case of a breach of a civil penalty provision by a natural person—

(i)an amount not exceeding $20 000; and

(ii)an amount not exceeding $2 000 for every day during which the breach continues;

(b)in the case of a breach of a civil penalty provision by a body corporate—

(i)an amount not exceeding $100 000; and

(ii)an amount not exceeding $10 000 for every day during which the breach continues;

civil penalty provision has the meaning given by section 3;

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

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

(b)a pipeline—

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

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

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

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

conduct provision has the meaning given by section 4;

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

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

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

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

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

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

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

covered pipeline means a pipeline—

(a)to which a coverage determination applies; or

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

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

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

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

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

Note—

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

designated reviewable regulatory decision means an applicable access arrangement decision (other than a full access arrangement decision that does not approve a full access arrangement);

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

dispute resolution body has the meaning given to that term in section 9(1) of the National Gas Access (WA) Act 2009;

distribution pipeline means a pipeline that is classified in accordance with this Law or the Rules as a distribution pipeline and includes any extension to, or expansion of the capacity of, such a pipeline when it is a covered pipeline that, by operation of an applicable access arrangement or under this Law, is to be treated as part of the pipeline;

Note—

See also sections 18 and 19.

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

end user means a person who acquires natural gas or proposes to acquire natural gas for consumption purposes;

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

extension and expansion requirements means—

(a)the requirements contained in an access arrangement that, in accordance with the Rules, specify—

(i)the circumstances when an extension to, or expansion of the capacity of, a covered pipeline is to be treated as forming part of the covered pipeline; and

(ii)whether the pipeline services provided or to be provided by means of, or in connection with, spare capacity arising out of an extension to, or expansion of the capacity of, a covered pipeline will be subject to the applicable access arrangement applying to the pipeline services to which that arrangement applies; and

(iii)whether an extension to, or expansion of the capacity of, a covered pipeline will affect a reference tariff, and if so, the effect on the reference tariff; and

(b)any other requirements specified by the Rules as extension and expansion requirements;

Note—

See also sections 18 and 19.

final Rule determination means a determination of the AEMC under section 311;

foreign company has the same meaning as in the Corporations Act 2001 of the Commonwealth;

foreign source means—

(a)a source beyond the outer limits of all of the following:

(i)the adjacent area of this jurisdiction;

(ii)the adjacent area of another participating jurisdiction; or

(b)a source within the joint petroleum development area (within the meaning of the Petroleum (Timor Sea Treaty) Act 2003 of the Commonwealth);

form of regulation factors has the meaning given by section 16;

full access arrangement means an access arrangement that—

(a)provides for price or revenue regulation as required by the Rules; and

(b)deals with all other matters for which the Rules require provision to be made in an access arrangement;

full access arrangement decision means a decision of the AER under the Rules that—

(a)approves or does not approve a full access arrangement or revisions to an applicable access arrangement submitted to the AER under section 132 or the Rules; or

(b)makes a full access arrangement—

(i)in place of a full access arrangement the AER does not approve in that decision; or

(ii)because a service provider does not submit a full access arrangement in accordance with section 132 or the Rules;

(c)makes revisions to an access arrangement—

(i)in place of revisions submitted to the AER under section 132 that the AER does not approve in that decision; or

(ii)because a service provider does not submit revisions to the AER under section 132;

Gas Code means the National Third Party Access Code for Natural Gas Pipeline Systems set out in Schedule 2 to the Gas Pipelines Access (South Australia) Act 1997 of South Australia as amended and applying from time to time before the commencement of section 30 of the National Gas Access (WA) Act 2009 as a law of Western Australia;

gas market operator means VENCorp or any other person or body prescribed by the Regulations to be a gas market operator;

general regulatory information order has the meaning given by section 45;

greenfields pipeline incentive means—

(a)a 15‑year no‑coverage determination; or

(b)a price regulation exemption;

haulage, in relation to natural gas, includes conveyance or reticulation of natural gas;

initial classification decision means a decision of the NCC under section 98 or 155;

initial National Gas Rules means the National Gas Rules that, when section 30 of the National Gas Access (WA) Act 2009 comes into operation, apply under section 294;

international pipeline means a pipeline for the haulage of gas from a foreign source;

jurisdictional determination criteria, in relation to a cross boundary distribution pipeline, has the meaning given by section 14;

jurisdictional gas legislation means an Act of a participating jurisdiction (other than national gas legislation), or any instrument made or issued under or for the purposes of that Act, that regulates the haulage of gas in that jurisdiction;

light regulation determination means a determination of the NCC under Chapter 3 Part 2 Division 1;

light regulation services means pipeline services to which a light regulation determination applies;

limited access arrangement means an access arrangement that, under this Law and the Rules, is not required to make provision for price or revenue regulation but deals with the matters for which this Law and the Rules require provision to be made in an access arrangement;

limited access arrangement decision means a decision of the AER under the Rules that approves or does not approve—

(a)a limited access arrangement submitted to the AER under section 116 or 168; or

(b)revisions to a limited access arrangement submitted to the AER under section 116(3) or 168(3) or the Rules;

MCE means the Ministerial Council on Energy established on 8 June 2001, being the Council of Ministers with primary carriage of energy matters at a national level comprising the Ministers representing the Commonwealth, the States, the Australian Capital Territory and the Northern Territory, acting in accordance with its own procedures;

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

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

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

Minister of a participating jurisdiction means a Minister who is a Minister of a participating jurisdiction within the meaning of section 22;

Ministerial coverage decision means—

(a)a decision of a relevant Minister under section 99, 106 or 156; or

(b)a decision of the Commonwealth Minister under section 164;

national gas legislation means—

(a)the National Gas (South Australia) Act 2008 of South Australia and Regulations in force under that Act; and

(b)the National Gas ( South Australia ) Law; and

(c)the National Gas Access (Western Australia) Act 2008 of Western Australia ; and

(d)the National Gas Access (Western Australia) Law within the meaning given in the National Gas Access (Western Australia) Act 2008 of Western Australia; and

(e)Regulations made under the National Gas Access (Western Australia) Act 2008 of Western Australia for the purposes of the National Gas Access (Western Australia) Law; and

(f)an Act of a participating jurisdiction (other than South Australia or Western Australia) that applies, as a law of that jurisdiction, any part of—

(i)the Regulations referred to in paragraph (a); or

(ii)the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia; and

(g)the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as applied as a law of a participating jurisdiction (other than South Australia or Western Australia); and

(h)the Regulations referred to in paragraph (a) as applied as a law of a participating jurisdiction (other than South Australia or Western Australia );

national gas objective means the objective set out in section 23;

National Gas Rules or Rules means—

(a)the initial National Gas Rules; and

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

(i)the initial National Gas Rules; or

(ii)Rules made by it;

natural gas means a substance that—

(a)is in a gaseous state at standard temperature and pressure; and

(b)consists of naturally occurring hydrocarbons, or a naturally occurring mixture of hydrocarbons and non‑hydrocarbons, the principal constituent of which is methane; and

(c)is suitable for consumption;

natural gas service means—

(a)a pipeline service; or

(b)the supply of natural gas; or

(c)a service ancillary to the service described in paragraph (b);

Natural Gas Services Bulletin Board means the website maintained by the Bulletin Board operator that contains information of the kind specified in the Rules in relation to natural gas services;

NCC means the National Competition Council established by section 29A of the Trade Practices Act 1974 of the Commonwealth;

NCC recommendation or decision means—

(a)a coverage recommendation; or

(b)a coverage revocation recommendation; or

(c)a no‑coverage recommendation; or

(d)a price regulation exemption recommendation; or

(e)a reclassification decision; or

(f)a light regulation determination; or

(g)a decision of the NCC under Chapter 3 Part 2 Division 2 to revoke a light regulation determination; or

(h)a decision of the NCC not to make a decision referred to in paragraph (f) or (g); or

(i)advice under section 172;

new facility means an extension to, or expansion of the capacity of, a covered pipeline which is to be treated as part of the covered pipeline—

(a)in accordance with the extension and expansion requirements contained in an applicable access arrangement applying to the pipeline services provided by means of that covered pipeline; or

(b)under this Law;

Note—

See also sections 18 and 19.

no‑coverage recommendation means a recommendation of the NCC under Chapter 5 Part 2;

non scheme pipeline user means a person who—

(a)is a party to a contract with a service provider under which the service provider provides or intends to provide a pipeline service to that person by means of a pipeline that is not a scheme pipeline; or

(b)has a right under an access determination to be provided with a pipeline service by means of a pipeline that is not a scheme pipeline;

offence provision means a provision of this Law the breach or contravention of which by a person exposes that person to a finding of guilt by a court;

officer has the same meaning as officer has in relation to a corporation under section 9 of the Corporations Act 2001 of the Commonwealth;

old access law means Schedule 1 to the Gas Pipelines Access ( Western Australia ) Act 1998 as in force from time to time before the commencement of section 30 of the National Gas Access (WA) Act 2009;

old scheme classification or determination means a classification or determination under section 10 or 11 of the old access law in force at any time before the repeal of the old access law;

old scheme distribution pipeline means a pipeline that was, at any time before the repeal of the old access law—

(a)a distribution pipeline as defined in that law; and

(b)a covered pipeline as defined in the Gas Code;

old scheme transmission pipeline means a pipeline that was, at any time before the repeal of the old access law—

(a)a transmission pipeline as defined in that law; and

(b)a covered pipeline as defined in the Gas Code;

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

pipeline means—

(a)a pipe or system of pipes for the haulage of natural gas, and any tanks, reservoirs, machinery or equipment directly attached to that pipe or system of pipes; or

(b)a proposed pipe or system of pipes for the haulage of natural gas, and any proposed tanks, reservoirs, machinery or equipment proposed to be directly attached to the proposed pipe or system of pipes; or

(c)a part of a pipe or system of pipes or proposed pipe or system of pipes referred to in paragraph (a) or (b),

but does not include—

(d)unless paragraph (e) applies, anything upstream of a prescribed exit flange on a pipeline conveying natural gas from a prescribed gas processing plant; or

(e)if a connection point upstream of an exit flange on such a pipeline is prescribed, anything upstream of that point; or

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

(g)any tanks, reservoirs, machinery or equipment used to remove or add components to or change natural gas (other than odourisation facilities) such as a gas processing plant; or

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

pipeline classification criterion has the meaning given by section 13;

pipeline coverage criteria has the meaning given by section 15;

pipeline reliability standard means a standard imposed by or under an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, relating to the reliable haulage of natural gas in that jurisdiction;

pipeline safety duty means a duty or requirement under an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, relating to—

(a)the safe haulage of natural gas in that jurisdiction; or

(b)the safe operation of a pipeline in that jurisdiction;

pipeline service means—

(a)a service provided by means of a pipeline, including—

(i)a haulage service (such as firm haulage, interruptible haulage, spot haulage and backhaul); and

(ii)a service providing for, or facilitating, the interconnection of pipelines; and

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

but does not include the production, sale or purchase of natural gas or processable gas;

pipeline service standard means a standard relating to the standard of the pipeline services provided by a service provider by means of a covered pipeline imposed—

(a)by or under jurisdictional gas legislation; or

(b)by the AER—

(i)under an access arrangement decision; or

(ii)in accordance with the Rules;

price or revenue regulation means regulation of—

(a)the prices, charges or tariffs for pipeline services to be, or that are to be, provided; or

(b)the revenue to be, or that is to be, derived from the provision of pipeline services;

price regulation exemption means an exemption under Chapter 5 Part 3;

price regulation exemption recommendation means a recommendation of the NCC under section 162;

processable gas means a substance that—

(a)is in a gaseous state at standard temperature and pressure; and

(b)consists of naturally occurring hydrocarbons, or a naturally occurring mixture of hydrocarbons and non‑hydrocarbons, the principal constituent of which is methane;

producer means a person who carries on a business of producing natural gas;

prospective user has the meaning given by section 5;

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

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

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

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

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

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

Regulations means the regulations made under Part 3 of the National Gas Access (WA) Act 2009 that apply as a law of this jurisdiction;

regulator has the meaning given to that term in section 9(1) of the National Gas Access (WA) Act 2009;

regulatory information instrument means—

(a)a general regulatory information order; or

(b)a regulatory information notice;

regulatory information notice has the meaning given by section 46;

regulatory obligation or requirement has the meaning given by section 6;

regulatory payment has the meaning given by section 7;

relevant Minister means if, in a coverage recommendation, no‑coverage recommendation, classification decision under the Rules or reclassification decision, the NCC determines the pipeline is—

(a)a cross boundary transmission pipeline—the Commonwealth Minister;

(b)a transmission pipeline situated wholly within a participating jurisdiction—the designated Minister;

Note—

The term designated Minister is defined in the Act of this jurisdiction that applies this Law as a law of this jurisdiction.

(c)a distribution pipeline situated wholly within a participating jurisdiction—the Minister of the participating jurisdiction;

(d)a cross boundary distribution pipeline—the Minister of the participating jurisdiction determined by the NCC in the recommendation as being the participating jurisdiction with which the cross boundary distribution pipeline is most closely connected;

relevant Regulator has the same meaning as in section 2 of the old access law;

revenue and pricing principles means the principles set out in section 24;

reviewable regulatory decision has the meaning given by section 244;

ring fencing decision means—

(a)an AER ring fencing determination; or

(b)a decision under section 146 granting or not granting an exemption under that section; or

(c)an associate contract decision;

scheme pipeline means—

(a)a covered pipeline; or

(b)an international pipeline to which a price regulation exemption applies;

service provider has the meaning given by section 8;

service provider performance report means a report prepared by the AER under section 64;

spare capacity means unutilised capacity of a pipeline;

storage provider means any person who owns, operates or controls a facility for storing natural gas or processable gas for injection into a pipeline;

supply includes—

(a)in relation to goods—supply (including re‑supply) by way of sale, exchange, lease, hire or hire purchase; and

(b)in relation to services—provide, grant or confer;

tariff means a rate by which a charge for a pipeline service is calculated;

tender approval decision means a decision of the AER under the Rules under which the AER approves a tender process for the construction and operation of a pipeline as a competitive tender process;

Territory means the Australian Capital Territory or the Northern Territory ;

transmission pipeline means a pipeline that is classified in accordance with this Law or the Rules as a transmission pipeline and includes any extension to, or expansion of the capacity of, such a pipeline when it is a covered pipeline that, by operation of an applicable access arrangement or under this Law, is to be treated as part of the pipeline;

Note—

See also sections 18 and 19.

Tribunal means the Australian Competition Tribunal referred to in the Trade Practices Act 1974 of the Commonwealth and includes a member of the Tribunal or a Division of the Tribunal performing functions of the Tribunal;

user means a person who—

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

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

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

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

VENCorp means the Victorian Energy Networks Corporation continued under Part 8 of the Gas Industry Act 2001 of Victoria ;

WA arbitrator has the meaning given to that term in section 9(1) of the National Gas Access (WA) Act 2009.

[Section 2 modified by WA Act Sch. 1 cl. 3; amended, see SA Act No. 30 of 2009 s. 6 and WA Gazette 18 Dec 2009 p. 5167; Act No. 79 of 2013 s. 19 and WA Gazette 14 Mar 2014 p. 632.]

2A.Meaning of AER modified

(1)In this Law, other than in the definition of AER in section 2, a reference to the AER is to be read as a reference to the regulator (whether the ERA or the AER) except to the extent that subsection (2) gives a different meaning.

(2)To the extent to which a reference to the AER is capable of being read as a reference to the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth acting as the disputes resolution body, the term is to be read as having or including that meaning.

[Section 2A inserted by WA Act Sch. 1 cl. 4.]

2B.References to WA application Act

In this Law, a reference to the National Gas Access ( Western Australia ) Act 2008, if any, is to be read as a reference to the National Gas Access (WA) Act 2009.

[Section 2B inserted by WA Act Sch. 1 cl. 4.]

3.Meaning of civil penalty provision

A civil penalty provision is—

(a)a provision of this Law specified in an item in the Table at the foot of this section; or

(b)a provision of this Law (other than an offence provision) or the Rules that is prescribed by the Regulations to be a civil penalty provision.

 

Table

Item

Provision

1

Section 56

2

Section 57

3

Section 131

4

Section 133

5

Section 134

6

Section 135

7

Section 136

8

Section 139

9

Section 140

10

Section 141

11

Section 143(6)

12

Section 147

13

Section 148

14

Section 168

15

Section 169(3)

16

Section 170

17

Section 195

18

Section 223

19

Section 225

20

Section 227

21

Section 228

4.Meaning of conduct provision

A conduct provision is—

(a)a provision of this Law specified in an item in the Table at the foot of this section; or

(b)a provision of this Law (other than an offence provision) or the Rules that is prescribed by the Regulations to be a conduct provision.

 

Table

Item

Provision

1

Section 133

2

Section 134

3

Section 135

4

Section 136

5

Section 147

6

Section 148

7

Section 170

5.Meaning of prospective user

(1)A prospective user is a person who seeks or wishes to be provided with a pipeline service by means of a scheme pipeline.

(2)To avoid doubt, a user is also a prospective user if the user seeks or wishes to be provided with a pipeline service by means of a scheme pipeline other than a pipeline service already provided to them under—

(a)a contract; or

(b)an access determination.

6.Meaning of regulatory obligation or requirement

(1)A regulatory obligation or requirement is—

(a)in relation to the provision of a pipeline service by a service provider—

(i)a pipeline safety duty; or

(ii)a pipeline reliability standard; or

(iii)a pipeline service standard; or

(b)an obligation or requirement under—

(i)this Law or the Rules; or

(ii)an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, that levies or imposes a tax or other levy that is payable by a service provider; or

(iii)an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, that regulates the use of land in a participating jurisdiction by a service provider; or

(iv)an Act of a participating jurisdiction or any instrument made or issued under or for the purposes of that Act that relates to the protection of the environment; or

(v)an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act (other than national gas legislation or an Act of a participating jurisdiction or an Act or instrument referred to in subparagraphs (ii) to (iv)), that materially affects the provision, by a service provider, of pipeline services to which an applicable access arrangement applies.

(2)A regulatory obligation or requirement does not include an obligation or requirement to pay a fine, penalty or compensation—

(a)for a breach of—

(i)a pipeline safety duty; or

(ii)a pipeline reliability standard; or

(iii)a pipeline service standard; or

(b)under this Law or the Rules or an Act or an instrument referred to in subsection (1)(b)(ii) to (v).

Note—

See also section 24(2)(b).

7.Meaning of regulatory payment

A regulatory payment is a sum that a service provider had been required or allowed to pay to a user or an end user for a breach of, as the case requires—

(a)a pipeline reliability standard; or

(b)a pipeline service standard,

because it was efficient for the service provider (in terms of the service provider’s overall business) to pay that sum.

Note—

See also section 24(2)(b).

8.Meaning of service provider

(1)A service provider is a person who—

(a)owns, controls or operates; or

(b)intends to own, control or operate,

a pipeline or scheme pipeline, or any part of a pipeline or scheme pipeline.

Note—

A service provider must not provide pipeline services by means of a scheme pipeline unless the service provider is a legal entity of a specified kind: See section 131, and section 169 where the scheme pipeline is an international pipeline to which a price regulation exemption applies.

(2)A gas market operator that controls or operates (without at the same time owning)—

(a)a pipeline or scheme pipeline; or

(b)a part of a pipeline or scheme pipeline,

is not to be taken to be a service provider for the purposes of this Law.

9.Passive owners of scheme pipelines deemed to provide or intend to provide pipeline services

(1)This section applies to a person who owns a scheme pipeline but does not provide or intend to provide pipeline services by means of that pipeline.

(2)The person is, for the purposes of this Law, deemed to provide or intend to provide pipeline services by means of that pipeline even if the person does not, in fact, do so.

10.Things done by 1 service provider to be treated as being done by all of service provider group

(1)This section applies if—

(a)more than 1 service provider (a service provider group) carries out a controlling pipeline activity in respect of a pipeline (or a part of a pipeline); and

(b)under this Law or the Rules a service provider is required or allowed to do a thing.

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

(3)Unless this Law or the Rules otherwise provide, on the doing of a thing referred to in subsection (2) by a complying service provider, the service providers of the service provider group on whose behalf the complying service provider does that thing, must, for the purposes of this Law and the Rules, each be taken to have done the thing done by the complying service provider.

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

(5)In this section—

controlling pipeline activity means own, control or operate.

11.Local agents of foreign service providers

(1)This section applies if—

(a)a service provider is a foreign company; and

(b)the service provider has, under the Corporations Act 2001 of the Commonwealth, appointed a local agent within the meaning of that Act.

(2)The local agent—

(a)is answerable for the doing of all acts, matters and things the service provider is required by or under this Law to do; and

(b)is personally liable to a penalty imposed on the service provider for a breach of a provision of this Law or the Rules if a court hearing the matter is satisfied that the local agent should be so liable.

12.Commissioning of a pipeline

A pipeline is commissioned when the pipeline is first used for the haulage of natural gas, on a commercial basis.

13.Pipeline classification criterion

(1)The pipeline classification criterion is whether the primary function of the pipeline is to—

(a)reticulate gas within a market (which is the primary function of a distribution pipeline); or

(b)convey gas to a market (which is the primary function of a transmission pipeline).

(2)Without limiting subsection (1), in determining the primary function of the pipeline, regard must also be had to whether the characteristics of the pipeline are those of a transmission pipeline or distribution pipeline having regard to—

(a)the characteristics and classification of, as the case requires, an old scheme transmission pipeline or an old scheme distribution pipeline;

(b)the characteristics of, as the case requires, a transmission pipeline or a distribution pipeline classified under this Law;

(c)the characteristics and classification of pipelines specified in the Rules (if any);

(d)the diameter of the pipeline;

(e)the pressure at which the pipeline is or will be designed to operate;

(f)the number of points at which gas can or will be injected into the pipeline;

(g)the extent of the area served or to be served by the pipeline;

(h)the pipeline’s linear or dendritic configuration.

14.Jurisdictional determination criteria—cross boundary distribution pipelines

The pipeline jurisdictional determination criteria are—

(a)whether more gas is to be delivered by a cross boundary distribution pipeline in the jurisdictional area of 1 participating jurisdiction than in the jurisdictional area of any other participating jurisdiction;

(b)whether more customers to be served by a cross boundary distribution pipeline are resident in the jurisdictional area of 1 participating jurisdiction than in the jurisdictional area of any other participating jurisdiction;

(c)whether more of the network for a cross boundary distribution pipeline is in the jurisdictional area of 1 participating jurisdiction than in the jurisdictional area of any other participating jurisdiction;

(d)whether 1 participating jurisdiction has greater prospects for growth in the gas market served or to be served by a cross boundary distribution pipeline than any other participating jurisdiction;

(e)whether the regional economic benefits from competition are likely to be greater for 1 participating jurisdiction than for any other participating jurisdiction.

15.Pipeline coverage criteria

The pipeline coverage criteria are—

(a)that access (or increased access) to pipeline services provided by means of the pipeline would promote a material increase in competition in at least 1 market (whether or not in Australia), other than the market for the pipeline services provided by means of the pipeline;

(b)that it would be uneconomic for anyone to develop another pipeline to provide the pipeline services provided by means of the pipeline;

(c)that access (or increased access) to the pipeline services provided by means of the pipeline can be provided without undue risk to human health or safety;

(d)that access (or increased access) to the pipeline services provided by means of the pipeline would not be contrary to the public interest.

16.Form of regulation factors

The form of regulation factors are—

(a)the presence and extent of any barriers to entry in a market for pipeline services;

(b)the presence and extent of any network externalities (that is, interdependencies) between a natural gas service provided by a service provider and any other natural gas service provided by the service provider;

(c)the presence and extent of any network externalities (that is, interdependencies) between a natural gas service provided by a service provider and any other service provided by the service provider in any other market;

(d)the extent to which any market power possessed by a service provider is, or is likely to be, mitigated by any countervailing market power possessed by a user or prospective user;

(e)the presence and extent of any substitute, and the elasticity of demand, in a market for a pipeline service in which a service provider provides that service;

(f)the presence and extent of any substitute for, and the elasticity of demand in a market for, electricity or gas (as the case may be);

(g)the extent to which there is information available to a prospective user or user, and whether that information is adequate, to enable the prospective user or user to negotiate on an informed basis with a service provider for the provision of a pipeline service to them by the service provider.

17.Effect of separate and consolidated access arrangements in certain cases

(1)This section applies despite anything to the contrary in this Law.

(2)If, under this Law and the Rules, separate access arrangements are approved in an applicable access arrangement decision for pipeline services provided, or to be provided, by means of different parts of a covered pipeline, each part of the covered pipeline—

(a)by which pipeline services are provided; and

(b)to which each separate applicable access arrangement applies,

must to be taken to be a separate covered pipeline for the purposes of this Law.

(3)If under this Law and the Rules, a single access arrangement is approved in an applicable access arrangement decision for pipeline services provided, or to be provided, by means of 2 or more covered pipelines, those pipelines must be taken to be a single covered pipeline for the purposes of this Law.

18.Certain extensions to, or expansion of the capacity of, pipelines to be taken to be part of a covered pipeline

For the purposes of this Law—

(a)an extension to, or expansion of the capacity of, a covered pipeline must be taken to be part of the covered pipeline; and

(b)the pipeline as extended or expanded must be taken to be a covered pipeline,

if, by operation of the extension and expansion requirements under an applicable access arrangement, the applicable access arrangement will apply to pipeline services provided by means of the covered pipeline as extended or expanded.

19.Expansions of and extensions to covered pipeline by which light regulation services are provided

For the purposes of this Law, an extension to, or expansion of the capacity of, a covered pipeline by means of which light regulation services (and in respect of which there is no limited access arrangement) are provided, must be taken to be part of the covered pipeline unless the AER determines otherwise in writing.

20.Interpretation generally

Schedule 2 to this Law applies to this Law, the Regulations and the Rules and any other statutory instrument made under this Law.

Part 1A Postponement of Natural Gas Services Bulletin Board provisions

[Heading inserted by WA Act Sch. 1 cl. 5.]

20A.Minister may fix day on which provisions apply

To the extent that a provision of this Law relates to the Natural Gas Services Bulletin Board, the provision does not apply before a day is fixed by the Minister, by an order notice of which is published in the Government Gazette, as the day on and after which provisions of this Law relating to the Natural Gas Services Bulletin Board apply.

[Section 20A inserted by WA Act Sch. 1 cl. 5.]

Part 2Participating jurisdictions

21.Participating jurisdictions

The State of South Australia, the Commonwealth, each of the States of New South Wales, Victoria, Queensland, Western Australia and Tasmania, and the Australian Capital Territory and the Northern Territory are participating jurisdictions for the purposes of this Law.

22.Ministers of participating jurisdictions

The Ministers of the participating jurisdictions are—

(a)the Minister of the Crown in right of South Australia administering Part 2 of the National Gas (South Australia) Act 2008 of South Australia; and

(b)the Minister of the Crown in right of Western Australia administering the National Gas Access (Western Australia) Act 2008 of Western Australia; and

(c)the Minister of the Crown in right of the Commonwealth administering the Australian Energy Market Act 2004 of the Commonwealth; and

(d)the Ministers of the Crown in right of the other participating jurisdictions administering the laws of those jurisdictions that substantially correspond to Part 2 of the National Gas (South Australia) Act 2008 of South Australia .

Part 3National gas objective and principles

Division 1 — National gas objective

23.National gas objective

The objective of this Law is to promote efficient investment in, and efficient operation and use of, natural gas services for the long term interests of consumers of natural gas with respect to price, quality, safety, reliability and security of supply of natural gas.

Division 2 — Revenue and pricing principles

24.Revenue and pricing principles

(1)The revenue and pricing principles are the principles set out in subsections (2) to (7).

(2)A service provider should be provided with a reasonable opportunity to recover at least the efficient costs the service provider incurs in—

(a)providing reference services; and

(b)complying with a regulatory obligation or requirement or making a regulatory payment.

(3)A service provider should be provided with effective incentives in order to promote economic efficiency with respect to reference services the service provider provides. The economic efficiency that should be promoted includes—

(a)efficient investment in, or in connection with, a pipeline with which the service provider provides reference services; and

(b)the efficient provision of pipeline services; and

(c)the efficient use of the pipeline.

(4)Regard should be had to the capital base with respect to a pipeline adopted—

(a)in any previous—

(i)full access arrangement decision; or

(ii)decision of a relevant Regulator under section 2 of the Gas Code;

(b)in the Rules.

(5)A reference tariff should allow for a return commensurate with the regulatory and commercial risks involved in providing the reference service to which that tariff relates.

(6)Regard should be had to the economic costs and risks of the potential for under and over investment by a service provider in a pipeline with which the service provider provides pipeline services.

(7)Regard should be had to the economic costs and risks of the potential for under and over utilisation of a pipeline with which a service provider provides pipeline services.

Division 3 — MCE policy principles

25.MCE statements of policy principles

(1)Subject to this section, the MCE may issue a statement of policy principles in relation to any matters that are relevant to the exercise and performance by the AEMC of its functions and powers in—

(a)making a Rule; or

(b)conducting a review under section 83.

(2)Before issuing a statement of policy principles, the MCE must be satisfied that the statement is consistent with the national gas objective.

(3)As soon as practicable after issuing a statement of policy principles, the MCE must give a copy of the statement to the AEMC.

(4)The AEMC must publish the statement in the South Australian Government Gazette and on its website as soon as practicable after it is given a copy of the statement.

Part 4Operation and effect of National Gas Rules

26.National Gas Rules to have force of law

The National Gas Rules have the force of law in this jurisdiction.

Chapter 2Functions and powers of gas market regulatory entities

Part 1Functions and powers of the Australian Energy Regulator

Division 1 — General

27.Functions and powers of the AER

(1)The AER has the following functions and powers:

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

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

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

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

(e)AER economic regulatory functions or powers; and

(f)to prepare and publish reports on the financial and operational performance of service providers in providing pipeline services by means of covered pipelines; and

(g)to approve compliance programs of service providers relating to compliance by service providers with this Law or the Rules; and

(h)any other functions and powers conferred on it under this Law or the Rules.

(2)The AER has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

28.Manner in which AER must perform or exercise AER economic regulatory functions or powers

(1)The AER must, in performing or exercising an AER economic regulatory function or power—

(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 reviewable regulatory decision —

(i)ensure that —

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

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

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

are, in accordance with the Rules —

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

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

(ii)specify —

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

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

(iii)if there are 2 or more possible designated reviewable regulatory decisions that will or are likely to contribute to the achievement of the national gas objective —

(A)make the decision that the AER is satisfied will or is likely to contribute to the achievement of the national gas objective to the greatest degree (the preferable designated reviewable regulatory decision); and

(B)specify reasons as to the basis on which the AER is satisfied that the decision is the preferable designated reviewable regulatory decision.

(2)In addition, the AER—

(a)must take into account the revenue and pricing principles—

(i)when exercising a discretion in approving or making those parts of an access arrangement relating to a reference tariff; or

(ii)when making an access determination relating to a rate or charge for a pipeline service; and

(b)may take into account the revenue and pricing principles when performing or exercising any other AER economic regulatory function or power, if the AER considers it appropriate to do so.

(3)For the purposes of subsection (2)(a)(ii), a reference to a “reference service” in the revenue and pricing principles must be read as a reference to a “pipeline service”.

[Section 28 amended see SA Act No. 79 of 2013 s. 20 and WA Gazette 14 Mar 2014 p. 632.]

29.Delegations

Any delegation by the AER under section 44AAH of the Trade Practices Act 1974 of the Commonwealth or by the ERA under section 29 of the Economic Regulation Authority Act 2003 extends to, and has effect for the purposes of, this Law, the Regulations and the Rules.

[Section 29 modified by WA Act Sch. 1 cl. 6.]

30.Confidentiality

(1)Section 44AAF of the Trade Practices Act 1974 of the Commonwealth has effect for the purposes of this Law, the Regulations and the Rules as if it formed part of this Law.

(2)Without limiting section 2A, that section also applies to section 44AAF as adopted by subsection (1) and, when the adopted section is read as if a reference in it to the AER were a reference to the ERA, it is further modified as follows:

(a)delete subsection (3)(c) of the adopted section and insert:

 

(c)the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth;

 

(b)delete subsection (6)(a)(i) of the adopted section and insert:

 

(i)an ERA member, a person assisting the ERA in the performance of its functions or a delegate of the ERA;

 

Note—

See also Chapter 10 Part 2 Division 1.

[Section 30 modified by WA Act Sch. 1 cl. 7.]

Division 2 — Search warrants

31.Definitions

In this Division—

authorised person means a person authorised under section 32;

relevant provision means a provision of this Law, the Regulations or the Rules.

32.Authorised person

(1)The AER may, in writing, authorise a person that the AER considers is suitably qualified or trained to be an authorised person for the purposes of this Division.

(2)An authorised person must comply with any direction of the AER in exercising powers or functions as an authorised person.

33.Identity cards

(1)The AER must issue an identity card to an authorised person.

(2)The identity card must contain the name, a recent photograph and the signature of the authorised person.

(3)An authorised person must carry the identity card at all times when exercising powers or performing functions as an authorised person.

(4)An authorised person must produce his or her identity card for inspection—

(a)before exercising a power as an authorised person; or

(b)at any time during the exercise of a power as an authorised person, if asked to do so.

34.Return of identity cards

If a person to whom an identity card has been issued ceases to be an authorised person, the person must return the identity card to the AER as soon as practicable.

Maximum penalty: $500

35.Search warrant

(1)An authorised person may apply to a magistrate for the issue of a search warrant in relation to a particular place if the person—

(a)believes on reasonable grounds that—

(i)there is or has been or will be a breach of a relevant provision; and

(ii)there is or may be a thing or things of a particular kind connected with that breach on or in that place; or

(b)reasonably suspects that—

(i)there may have been a breach of a relevant provision; and

(ii)there is or may be a thing or things of a particular kind connected with that breach on or in that place.

(2)If a magistrate is satisfied by the evidence, on oath or by affidavit, of an authorised person that there are reasonable grounds for suspecting that there is, or may be within the next 7 days, a thing or things of a particular kind connected with a breach or possible breach of a relevant provision on or in a place, the magistrate may issue a search warrant authorising an authorised person named in the warrant—

(a)to enter the place specified in the warrant, with such assistance and by the use of such force as is necessary and reasonable;

(b)to search the place or any part of the place;

(c)to search for and seize a thing named or described in the warrant and which the person believes on reasonable grounds to be connected with the breach or possible breach of the relevant provision;

(d)to inspect, examine or record an image of anything in the place;

(e)to take extracts from, and make copies of, any documents in the place;

(f)to take into the place such equipment and materials as the person requires for exercising the powers.

(3)A search warrant issued under this section must state—

(a)the purpose for which the search is required and the nature of the suspected breach of the relevant provision; and

(b)any conditions to which the warrant is subject; and

(c)whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and

(d)a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect.

(4)Except as provided by this Law, the rules to be observed with respect to search warrants mentioned in any relevant laws of this jurisdiction extend and apply to warrants under this section.

36.Announcement of entry and details of warrant to be given to occupier or other person at premises

(1)This section applies if the occupier or another person who apparently represents the occupier is present at premises when a search warrant is being executed.

(2)The authorised person executing the warrant must—

(a)identify himself or herself to that person; and

(b)announce that he or she is authorised by the warrant to enter the place; and

(c)before using force to enter, give the person an opportunity to allow entry; and

(d)give the person a copy of the warrant.

(3)The authorised person executing the warrant is not entitled to exercise any powers under the warrant in relation to premises if the authorised person does not comply with subsection (2).

37.Immediate entry permitted in certain cases

An authorised person executing a warrant need not comply with section 36 if he or she believes on reasonable grounds that immediate entry to premises is required to ensure—

(a)the safety of any person; or

(b)that the effective execution of the search warrant is not frustrated.

38.Copies of seized documents

(1)If an authorised person executing a warrant retains possession of a document seized from a person in accordance with the warrant, the authorised person must give that other person, within 21 days of the seizure, a copy of the document certified as correct by the authorised person executing the warrant.

(2)A copy of a document certified under subsection (1) shall be received in all courts and all tribunals as evidence of equal validity to the original.

39.Retention and return of seized documents or things

(1)If an authorised person executing a warrant seizes a document or other thing in accordance with the warrant, the authorised person must if he or she is not a person employed by the AER, give the document or other thing seized to the AER.

(2)The AER must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists.

(3)If the document or thing seized has not been returned within 3 months after it was seized, the AER must take reasonable steps to return it unless—

(a)proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or

(b)a magistrate makes an order under section 40 extending the period during which the document or thing may be retained.

40.Extension of period of retention of documents or things seized

(1)The AER may apply to a magistrate—

(a)within 3 months after a document or other thing was seized in accordance with a warrant; or

(b)if an extension has been granted under this section, before the end of the period of the extension,

for an extension of the period for which the AER may retain the document or thing but so that the total period of retention does not exceed 12 months.

(2)An application must be made before proceedings for the purpose for which the document or thing was retained have been commenced.

(3)A magistrate may order such an extension if he or she is satisfied that—

(a)it is in the interests of justice; and

(b)the total period of retention does not exceed 12 months; and

(c)retention of the document or other thing is necessary—

(i)for the purposes of an investigation into whether a breach of a relevant provision has occurred; or

(ii)to enable evidence of a breach of a relevant provision to be obtained for the purposes of a proceeding under this Law.

(4)If proceedings are commenced for the purpose for which the document or thing was retained at any time before the expiry of the period specified in an order under this section, the document or thing may be retained until those proceedings (including any appeal) have been completed despite those proceedings being completed after the period specified in the order.

(5)At least 7 days prior to the hearing of an application under this section by a magistrate, notice of the application must be sent to the owner of the document or thing described in the application.

41.Obstruction of persons authorised to enter

A person must not, without reasonable excuse, obstruct or hinder an authorised person in the exercise of a power under a search warrant under this Division.

Maximum penalty:

(a)in the case of a natural person—$2 000;

(b)in the case of a body corporate—$10 000.

Division 3 — General information gathering powers

42.Power to obtain information and documents in relation to performance and exercise of functions and powers

(1)If the AER has reason to believe that a person is capable of providing information or producing a document that the AER requires for the performance or exercise of a function or power conferred on it under this Law or the Rules, the AER may, by notice in writing, serve on that person a notice (a relevant notice).

(2)A relevant notice may require the person to—

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

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

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

Maximum penalty:

(a)in the case of a natural person—$2 000;

(b)in the case of a body corporate—$10 000.

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

Maximum penalty:

(a)in the case of a natural person—$2 000;

(b)in the case of a body corporate—$10 000.

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

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

(a)fail to provide information of the kind referred to in subsection (1) to the AER; or

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

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

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

(a)fail to provide information of the kind referred to in subsection (1) to the AER; or

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

on the ground of any duty of confidence.

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

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

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

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

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

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

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

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

Division 4 — Regulatory information notices and general regulatory information orders

Subdivision 1 — Interpretation

43.Definitions

In this Division—

contributing service has the meaning given by section 44;

scheme pipeline service provider means—

(a)a covered pipeline service provider; or

(b)a service provider who provides or intends to provide pipeline services by means of an international pipeline to which a price regulation exemption applies;

related provider means a person who supplies a contributing service to a scheme pipeline service provider.

44.Meaning of contributing service

(1)A contributing service is a service that the AER, in accordance with this section, decides is a service that contributes in a material way to the provision of a pipeline service by a scheme pipeline service provider.

(2)In deciding whether a service is a service that contributes in a material way to the provision of a pipeline service by a scheme pipeline service provider, the AER must have regard to—

(a)the nature and kind of the service;

(b)when the service was first supplied;

(c)the nature and extent of the contribution of the service relative to—

(i)the pipeline service; and

(ii)all other services supplied by the scheme pipeline service provider;

(d)whether the service was previously supplied—

(i)by the scheme pipeline service provider; or

(ii)directly or indirectly by an associate of the scheme pipeline service provider;

(e)whether the service, together with other services, contributes in a material way to the provision of pipeline services;

(f)any other matter specified under the Rules.

45.Meaning of general regulatory information order

A general regulatory information order is an order made by the AER in accordance with this Division that requires each scheme pipeline service provider of a specified class, or each related provider of a specified class, to do either or both of the following:

(a)provide to the AER the information specified in the order;

(b)prepare, maintain or keep information specified in the notice in a manner and form specified in the order.

46.Meaning of regulatory information notice

A regulatory information notice is a notice prepared and served by the AER in accordance with this Division that requires the scheme pipeline service provider, or a related provider, named in the notice to do either or both of the following:

(a)provide to the AER the information specified in the notice;

(b)prepare, maintain or keep information specified in the notice in a manner and form specified in the notice.

47.Division does not limit operation of information gathering powers under Division 3

This Division does not limit the operation of Division 3.

Subdivision 2 — Serving and making of regulatory information instruments

48.Service and making of regulatory information instrument

(1)Subject to this Division, the AER, if it considers it reasonably necessary for the performance or exercise of its functions or powers under this Law or the Rules, may—

(a)serve a regulatory information notice on a scheme pipeline service provider or a related provider; or

(b)make a general regulatory information order.

(2)In considering whether it is reasonably necessary to serve a regulatory information notice, or make a general regulatory information order, the AER must have regard to—

(a)the matter to be addressed by—

(i)the service of the regulatory information notice; or

(ii)the making of the general regulatory information order; and

(b)the likely costs that may be incurred by an efficient scheme pipeline service provider or efficient related provider in complying with the notice or order.

Note—

The AER must also exercise its powers under this section in a manner that will or is likely to contribute to the achievement of the national gas objective: see section 28.

(3)A regulatory information notice must not be served, or a general regulatory information order must not be made, solely for the purpose of—

(a)investigating breaches or possible breaches of provisions of this Law, the Regulations or the Rules, including offences against this Law; or

(b)instituting and conducting proceedings in relation to breaches of provisions of this Law, the Regulations or the Rules, including offences against this Law; or

(c)instituting and conducting appeals from decisions in proceedings referred to in paragraph (b); or

(d)collecting information for the preparation of a service provider performance report; or

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

49.Additional matters to be considered for related provider regulatory information instruments

(1)This section applies if the AER is intending to—

(a)serve a regulatory information notice on a related provider; or

(b)make a general regulatory information order that will apply to a class of related providers.

(2)In addition to the matters set out in section 48(2), the AER, in considering whether it is reasonably necessary to serve the regulatory information notice, or make the general regulatory information order, must have regard to—

(a)whether the scheme pipeline service provider being supplied a contributing service by the related provider or related providers to which the intended regulatory information instrument will apply can—

(i)provide the information to be specified in that instrument; or

(ii)prepare, maintain or keep the information to be specified in the particular manner and form to be specified in that instrument; and

(b)the extent to which the related provider or related providers to which the intended regulatory information instrument will apply is, or are, supplying a contributing service on a genuinely competitive basis; and

(c)the nature of any ownership or control between—

(i)the scheme pipeline service provider being supplied a contributing service by a related provider to which the intended regulatory information instrument will apply; and

(ii)that related provider; and

(d)the nature of any ownership or control as between different related providers supplying the contributing service to the scheme pipeline service provider; and

(e)any other matter the AER considers relevant.

(3)For the purposes of subsection (2)(b), in considering whether a contributing service is being supplied on a genuinely competitive basis, the AER may take into account—

(a)whether there is effective competition in the market for the supply of the contributing service; and

(b)whether the related provider supplies the contributing service to a scheme pipeline service provider under a contract, arrangement or understanding entered into with that scheme pipeline service provider following a competitive process for the awarding of the right to enter into that contract, arrangement or understanding involving persons who were not associates of the scheme pipeline service provider.

50.AER must consult before publishing a general regulatory information order

The AER must, in accordance with the Rules, consult with the public on the general regulatory information order it intends to make before it makes that order.

Note—

See also section 65 about what the AER must and may do after receiving submissions.

51.Publication requirements for general regulatory information orders

(1)A general regulatory information order made under section 48(1)(b) must be published on the AER’s website as soon as practicable after it is made.

(2)Notice of the making of a general regulatory information order must be published in a newspaper circulating generally throughout Australia as soon as practicable after it is made.

52.Opportunity to be heard before regulatory information notice is served

(1)The AER, before serving a regulatory information notice, must—

(a)notify, in writing, the scheme pipeline service provider, or the related provider, on whom the AER intends to serve the regulatory information notice of its intention to do so; and

(b)give the scheme pipeline service provider, or the related provider, a draft of the regulatory information notice it intends to serve.

(2)If the regulatory information notice to be served is an urgent notice, the AER must, in a notice under subsection (1)—

(a)identify the regulatory information notice to be served as an urgent notice; and

(b)give its reasons, in writing, why the regulatory information notice to be served is an urgent notice.

(3)A regulatory information notice is an urgent notice if—

(a)under the notice the AER will require the scheme pipeline service provider or related provider to provide information to the AER; and

(b)that requirement has arisen because the AER considers it must deal with or address a particular matter or thing in order for it to make an AER economic regulatory decision; and

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

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

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

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

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

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

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

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

Subdivision 3 — Form and content of regulatory information instruments

53.Form and content of regulatory information instrument

(1)A regulatory information instrument—

(a)must specify the information required to be—

(i)provided to the AER;

(ii)prepared, maintained or kept in the particular manner and form specified in the instrument; and

(b)may specify the manner and form in which the information described in the instrument is required to be—

(i)provided to the AER;

(ii)prepared, maintained or kept; and

(c)must state the reasons of the AER for requiring the information described in the instrument to be—

(i)provided to the AER;

(ii)prepared, maintained or kept in the particular manner and form specified in the instrument; and

(d)in the case of an instrument requiring information to be provided to the AER, must specify when the information must be provided.

(2)In the case of a regulatory information notice, the notice must name the scheme pipeline service provider or the related provider to whom it applies.

(3)In the case of a general regulatory information order, the order must specify the class of scheme pipeline service provider, or related provider, to whom the order applies.

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

Without limiting section 53(1)(a), the information that may be required to be provided to the AER, or to be prepared, maintained or kept, may include—

(a)historic, current and forecast information (including financial information);

(b)information that is or may be derived from other information in the possession or control of the scheme pipeline service provider or the related provider to whom the instrument applies;

(c)information to enable the AER to verify whether the scheme pipeline service provider to whom the instrument applies is or has been complying with Chapter 4;

(d)information to enable the AER to verify compliance with any requirements for the allocation of costs between natural gas services under—

(i)the Rules; or

(ii)an applicable access arrangement.

55.Further provision about manner in which information must be provided to AER or kept

Without limiting section 53(1)(b), a regulatory information instrument may specify the information specified in the instrument—

(a)be provided to the AER, or prepared, maintained or kept, on an annual basis or some other basis, including on the occurrence of a specified event or state of affairs;

(b)be provided to the AER, or prepared, maintained or kept, in accordance with specified Rules;

(c)be provided to the AER, or prepared, maintained or kept, in accordance with any document, code, standard, rule, specification or method formulated, issued, prescribed or published by the AER or any person, authority or body whether—

(i)wholly or partially or as amended by the instrument; or

(ii)as formulated, issued, prescribed or published at the time the instrument is served or published or at any time before the instrument is served or published; or

(iii)as amended from time to time;

Example—

The AER may require a scheme pipeline service provider to provide information in a form and manner that complies with relevant accounting standards.

(d)be verified by way of statutory declaration by an officer of the scheme pipeline service provider, or of a related provider, to whom the instrument applies;

(e)be audited—

(i)by a class of person specified in the instrument before it is provided to the AER; and

(ii)at the expense of the scheme pipeline service provider or related provider to whom the instrument applies.

Subdivision 4 — Compliance with regulatory information instruments

56.Compliance with regulatory information notice that is served

On being served a regulatory information notice, a person named in the notice must comply with the notice.

57.Compliance with general regulatory information order

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

(2)Subsection (1) does not apply to a person who has been given an exemption under section 58.

58.Exemptions from compliance with general regulatory information order

(1)The AER may exempt a person, or a class of person, from complying with section 57—

(a)unconditionally or on specified conditions; or

(b)wholly or to the extent as is specified in the exemption.

(2)An exemption under this section must be in writing.

59.Assumptions where there is non‑compliance with regulatory information instrument

(1)This section applies if—

(a)under a regulatory information instrument the AER—

(i)requires a scheme pipeline service provider to provide information to the AER for the purpose of enabling the AER to make an AER economic regulatory decision relating to the scheme pipeline service provider; or

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

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

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

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

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

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

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

Subdivision 5 — General

60.Providing to AER false and misleading information

A person must not, in purported compliance with a regulatory information instrument requiring the person to provide information to the AER, provide information to the AER that the person knows is false or misleading in a material particular.

Maximum penalty:

(a)in the case of a natural person—$2 000;

(b)in the case of a body corporate—$10 000.

61.Person cannot rely on duty of confidence to avoid compliance with regulatory information instrument

(1)A person must not refuse to comply with a regulatory information instrument on the ground of any duty of confidence.

(2)A person incurs, by complying with a regulatory information instrument, no liability for breach of contract, breach of confidence or any other civil wrong.

62.Legal professional privilege not affected

A regulatory information instrument, and sections 56 and 57, are not to be taken as requiring a person to—

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

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

63.Protection against self‑incrimination

(1)It is a reasonable excuse for a natural person to whom section 56 applies not to comply with a regulatory information notice served on the person requiring the person to provide information to the AER if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another participating jurisdiction.

(2)It is a reasonable excuse for a natural person to whom section 57 applies not to comply with a general regulatory information order made requiring the person to provide information to the AER if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another participating jurisdiction.

Division 5 — Service provider performance reports

64.Preparation of service provider performance reports

(1)Subject to this section, the AER may prepare a report on the financial performance or operational performance of 1 or more scheme pipeline service providers in providing pipeline services by means of a scheme pipeline.

Note—

The AER may only prepare a report under subsection (1) if the preparation of the report will or is likely to contribute to the achievement of the national gas objective: see section 28.

(2)A report prepared under this section may—

(a)deal with the financial or operational performance of the scheme pipeline service provider in relation to—

(i)complying with pipeline service standards; and

(ii)standards relating to the provision of pipeline services to users or end users; and

(iii)the profitability of scheme pipeline service providers in providing pipeline services; and

(b)if the AER considers it appropriate, deal with the performance of the scheme pipeline service provider in relation to other matters or things if that performance is directly related to the performance or exercise by the AER of an AER economic regulatory function or power.

(3)A report prepared under this section may include—

(a)information provided to the AER by a person in compliance with a regulatory information instrument; and

(b)in the case of a report dealing with the financial performance of 1 or more scheme pipeline service providers, a comparison of the profitability of the scheme pipeline service providers to which the report relates from the provision of pipeline services by them.

(4)Before preparing a report under this section, the AER must, in accordance with the Rules, consult with the persons or bodies specified by the Rules.

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

Division 6 — Miscellaneous matters

65.Consideration by the AER of submissions or comments made to it under this Law or the Rules

If, under this Law or the Rules, the AER publishes a notice inviting submissions in relation to the making of an AER economic regulatory decision, the AER, in making the decision—

(a)must consider every submission it receives within the period specified in the notice; and

(b)may, but need not, consider a submission it receives after the period specified in the notice expires.

66.Use of information provided under a notice under Division 3 or a regulatory information instrument

The AER may use information provided to it by a person in compliance with a notice under section 42 or a regulatory information instrument for any purpose connected with the performance or exercise of a function or power of the AER under this Law or the Rules.

67.AER to inform certain persons of decisions not to investigate breaches, institute proceedings or serve infringement notices

(1)If the AER is given information by any person in relation to a breach or a possible breach of this Law, the Regulations or the Rules by a person but—

(a)decides not to investigate that breach or possible breach; or

(b)following an investigation, decides not to—

(i)institute any proceedings under Chapter 8 in respect of that breach or possible breach; or

(ii)serve an infringement notice in accordance with Chapter 8 Part 7 in respect of that breach or possible breach,

the AER must notify that person of that decision in writing.

(2)This section does not apply if the person gave the information to the AER anonymously.

68.AER enforcement guidelines

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

(a)making an application under section 231; or

(b)serving an infringement notice under section 277.

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

68C.Record of designated reviewable regulatory decisions

(1)The AER must, in making a designated reviewable regulatory decision, keep a written record of decision related matter.

(2)In this section —

decision related matter, in relation to a designated reviewable regulatory decision, means —

(a)the decision and the written record of it and any written reasons for it (including (if relevant) the reasons of the AER for a decision of the AER not to approve the access arrangement or proposed revisions to the applicable access arrangement (as the case may be)); and

(b)any document, proposal or information required or allowed under the Rules to be submitted as part of the process for the making of the decision; and

(c)any written submissions made to the AER after the proposed access arrangement or proposed revisions to the applicable access arrangement (as the case may be) to which the decision relates were submitted to the AER and before the decision was made; and

(d)any reports and materials (including (but not limited to) consultant reports, data sets, models or other documents) considered by the AER in making the decision; and

(e)any draft of the decision that has been released for public consultation (including (if relevant) a draft of the reasons of the AER for a decision of the AER not to approve the access arrangement or proposed revisions to the applicable access arrangement (as the case may be)); and

(f)any submissions on the draft of the decision or the decision itself (including (if relevant) submissions on the draft of the reasons of the AER for a decision of the AER not to approve the access arrangement or proposed revisions to the applicable access arrangement (as the case may be)) considered by the AER; and

(g)the transcript of any hearing (if any) conducted by the AER for the purpose of making the decision.

[Section 68C inserted see SA Act No. 79 of 2013 s. 21 and WA Gazette 14 Mar 2014 p. 632.]

Part 1AFunctions and powers of WA arbitrator

[Heading inserted by WA Act Sch. 1 cl. 8.]

68A.Manner in which WA arbitrator must perform or exercise certain functions or powers

(1)The WA arbitrator must, in performing or exercising a function or power that relates to an access determination, perform or exercise that function or power in a manner that will or is likely to contribute to the achievement of the national gas objective.

(2)In addition, the WA arbitrator—

(a)must take into account the revenue and pricing principles when making an access determination relating to a rate or charge for a pipeline service; and

(b)may take into account the revenue and pricing principles when performing or exercising any other function or power that relates to an access determination, if the WA arbitrator considers it appropriate to do so.

(3)For the purposes of subsection (2)(a), a reference to a reference service in the revenue and pricing principles must be read as a reference to a pipeline service.

[Section 68A inserted by WA Act Sch. 1 cl. 8.]

Part 2Functions and powers of the Australian Energy Market Commission

Division 1 — General

69.Functions and powers of the AEMC

(1)The AEMC has the following functions and powers:

(a)the Rule making functions and powers conferred on it under this Law and the Regulations;

(b)the market development functions conferred on it under this Law and the Rules;

(c)any other functions and powers conferred on it under this Law and the Rules.

(2)The AEMC has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

70.Delegations

Any delegation by the AEMC under section 20 of the Australian Energy Market Commission Establishment Act 2004 of South Australia extends to, and has effect for the purposes of, this Law, the Regulations and the Rules.

71.Confidentiality

Section 24 of the Australian Energy Market Commission Establishment Act 2004 of South Australia has effect for the purposes of this Law, the Regulations and the Rules as if it formed part of this Law.

Note—

See also Chapter 10 Part 2 Division 2.

72.AEMC must have regard to national gas objective

In performing or exercising any function or power under this Law, the Regulations or the Rules, the AEMC must have regard to the national gas objective.

73.AEMC must have regard to MCE statements of policy principles in relation to Rule making and reviews

The AEMC must have regard to any relevant MCE statement of policy principles—

(a)in making a Rule; or

(b)in conducting a review under section 83.

Division 2 — Rule making functions and powers of the AEMC

74.Subject matter for National Gas Rules

(1)Subject to this Division, the AEMC, in accordance with this Law and the Regulations, may make Rules, to be known, collectively, as the “National Gas Rules”, for or with respect to—

(a)regulating—

(i)access to pipeline services;

(ii)the provision of pipeline services;

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

(b)any matter or thing contemplated by this Law, or is necessary or expedient for the purposes of this Law.

Note—

The procedure for the making of a Rule by the AEMC is set out in Chapter 9 Part 3.

(2)Without limiting subsection (1), the AEMC, in accordance with this Law and the Regulations, may make Rules for or with respect to any matter or thing specified in Schedule 1 to this Law.

(3)Rules made by the AEMC in accordance with this Law and the Regulations may—

(a)be of general or limited application;

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

(c)confer functions or powers on, or leave any matter or thing to be decided or determined by—

(i)the AER, the AEMC or the Bulletin Board operator; or

(ii)any panel or committee established by the AEMC; or

(iii)any other body established, or person appointed, in accordance with the Rules;

(d)confer rights or impose obligations on any person or a class of person (other than the AER or the AEMC);

(e)confer a function on the AER, the AEMC or the Bulletin Board operator to make or issue guidelines, tests, standards, procedures or any other document (however described) in accordance with the Rules, including guidelines, tests, standards, procedures or any other document (however described) that leave any matter or thing to be determined by the AER, the AEMC or the Bulletin Board operator;

(f)empower or require any person (other than a person referred to in paragraph (e)) or body to make or issue guidelines, tests, standards, procedures or any other document (however described) in accordance with the Rules;

(g)apply, adopt or incorporate wholly or partially, or as amended by the Rules, the provisions of any standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body whether—

(i)as formulated, issued, prescribed or published at the time the Rules are made or at any time before the Rules are made; or

(ii)as amended from time to time;

(h)confer a power of direction on the AER, the AEMC or the Bulletin Board operator to require a person conferred a right, or on whom an obligation is imposed, under the Rules to comply with—

(i)a guideline, test, standard, procedure or other document (however described) referred to in paragraph (e) or (f); or

(ii)a standard, rule, specification, method or document (however described) referred to in paragraph (g);

(i)if this section authorises or requires Rules that regulate any matter or thing, prohibit that matter or thing or any aspect of that matter of thing;

(j)provide for the review of, or a right of appeal against, a decision or determination made under the Rules and for that purpose, confer jurisdiction on the Court;

(k)require a form prescribed by or under the Rules, or information or documents included in, attached to or given with the form, to be verified by statutory declaration;

(l)in a specified case or class of case, exempt a person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules or a class of any such person or body from complying with a provision, or a part of a provision, of the Rules;

(m)provide for the modification or variation of a provision of the Rules (with or without substitution of a provision of the Rules or a part of a provision of the Rules) as it applies to a person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules or a class of any such person or body;

(n)confer an immunity on, or limit the liability of, any person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed under the Rules;

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

75.Rules relating to MCE or Ministers of participating jurisdictions require MCE consent

The AEMC must not, without the consent of the MCE, make a Rule that confers a right or function, or imposes an obligation, on the MCE or a Minister of a participating jurisdiction.

Note—

The term function is defined in clause 10 of Schedule 2 to this Law to include “duty”.

76.AEMC must not make Rules that create criminal offences or impose civil penalties for breaches

The AEMC must not make a Rule that—

(a)creates an offence for a breach of a provision of the Rules; or

(b)provides for a criminal penalty or civil penalty for a breach of a provision of the Rules.

77.Documents etc applied, adopted and incorporated by Rules to be publicly available

(1)The AEMC must make publicly available—

(a)every standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body that is applied, adopted or incorporated by a Rule; and

(b)if a standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body is applied, adopted or incorporated by a Rule as amended from time to time—any amendment to that standard, rule, specification, method or document.

(2)For the purposes of subsection (1), the AEMC makes a standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body applied, adopted or incorporated by any Rule publicly available if the AEMC—

(a)publishes the standard, rule, specification, method or document on the AEMC’s website; or

(b)specifies a place from which the standard, rule, specification, method or document may be obtained or purchased (as the case requires).

Division 3 — Committees, panels and working groups of the AEMC

78.Establishment of committees, panels and working groups

The AEMC may establish committees, panels and working groups to—

(a)provide advice on specified aspects of the AEMC’s functions; or

(b)undertake any other activity in relation to the AEMC’s functions as is specified by the AEMC.

Division 4 — MCE directed reviews

79.MCE directions

(1)The MCE may give a written direction to the AEMC that the AEMC conduct a review into—

(a)any matter relating to a market for gas (including services provided in a market for gas); or

(b)any matter relating to access to pipelines or to pipeline services provided by means of pipelines; or

(c)the operation and effectiveness of the Rules; or

(d)any matter relating to the Rules; or

(e)the effectiveness of competition in a market for gas for the purpose of giving advice about whether to retain, remove or reintroduce price controls on prices for retail gas services.

(2)A direction given to the AEMC under this section is binding on the AEMC and must be complied with despite anything to the contrary in the Rules.

(3)A direction given under this section must be published in the South Australian Government Gazette.

(4)The AEMC must cause a direction given under this section to be published on its website.

80.Terms of reference

(1)The terms of reference of a MCE directed review will be as specified in the direction given by the MCE.

Example—

The terms of reference may require a MCE directed review to be conducted—

(a)about a specific matter within a specified time; or

(b)whenever a specified event occurs; or

(c)on an annual basis.

(2)Without limiting subsection (1), the MCE may in its direction to the AEMC do 1 or more of the following:

(a)require the AEMC to give a report on a MCE directed review to the MCE within a specified period;

(b)require the AEMC to make the report on a MCE directed review publicly available or available to specified persons or bodies;

(c)require the AEMC to make a draft report publicly available or available to specified persons or bodies during a MCE directed review;

(d)require the AEMC to consider specified matters in the conduct of a MCE directed review;

(e)require the AEMC to have specified objectives in the conduct of a MCE directed review which need not be limited by the national gas objective;

(f)require the AEMC to assess a particular matter in relation to services provided in a market for gas against specified criteria or a specified methodology;

(g)require the AEMC—

(i)to assess a particular matter in relation to services provided in a market for gas; and

(ii)to develop appropriate and relevant criteria, or an appropriate and relevant methodology, for the purpose of the required assessment;

(h)give the AEMC other specific directions in respect of the conduct of a MCE directed review.

81.Notice of MCE directed review

(1)The AEMC must publish notice of a MCE directed review on its website and in a newspaper circulating generally throughout Australia.

(2)The AEMC must publish a further such notice if a term of reference or a requirement or direction relating to the MCE directed review is varied.

82.Conduct of MCE directed review

Subject to any requirement or direction of the MCE, a MCE directed review—

(a)may be conducted in such manner as the AEMC considers appropriate; and

(b)may (but need not) involve public hearings.

Division 5 — Other reviews

83.Rule reviews by the AEMC

(1)The AEMC may conduct a review into—

(a)the operation and effectiveness of the Rules; or

(b)any matter relating to the Rules.

(2)A review—

(a)may be conducted in such manner as the AEMC considers appropriate; and

(b)may (but need not) involve public hearings.

(3)During the course of a review, the AEMC may—

(a)consult with any person or body that it considers appropriate;

(b)establish working groups to assist it in relation to any aspect, or any matter or thing that is the subject of, the review;

(c)commission reports by other persons on its behalf on any aspect, or matter or thing that is the subject of, the review;

(d)publish discussion papers or draft reports.

(4)At the completion of a review, the AEMC must—

(a)give a copy of the report to the MCE; and

(b)publish a report or a version of a report from which confidential information has been omitted in accordance with section 331.

Division 6 — Miscellaneous matters

84.AEMC must publish and make available up to date versions of Rules

The AEMC must, at all times—

(a)maintain, on its website, a copy of the National Gas Rules, as in force from time to time; and

(b)make copies of the National Gas Rules, as in force from time to time, available to the public for inspection at its offices during business hours.

85.Fees

(1)The AEMC may charge a fee specified, or a fee calculated in accordance with a formula or methodology specified, in the Regulations for services provided by it in performing or exercising any of its functions or powers under this Law, the Regulations or the Rules.

(2)The fee must not be such as to amount to taxation.

86.Immunity from personal liability of AEMC officials

(1)No personal liability attaches to an AEMC official for an act or omission in good faith in the performance or exercise, or purported performance or exercise of a function or power under this Law, the Regulations or the Rules.

(2)A liability that would, but for subsection (1), lie against an AEMC official lies instead against the AEMC.

(3)In this section—

AEMC official means—

(a)a member of the AEMC;

(b)the chief executive of the AEMC;

(c)a member of staff appointed by the AEMC.

Part 3Functions and powers of Ministers of participating jurisdictions

87.Functions and powers of Minister of this participating jurisdiction under this Law

(1)The Minister of this participating jurisdiction has the functions and powers conferred on him or her under this Law, the Regulations or the Rules.

(2)The Minister of this participating jurisdiction has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.

(3)In this section—

Minister of this participating jurisdiction means the Minister that administers the Act of this jurisdiction that applies this Law as a law of this jurisdiction.

88.Functions and powers of Commonwealth Minister under this Law

(1)The Commonwealth Minister has the functions and powers conferred on him or her under this Law, the Regulations or the Rules.

(2)The Commonwealth Minister has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.

Part 4Functions and powers of the NCC

89.Functions and powers of NCC under this Law

(1)The NCC has the functions and powers conferred on it under this Law, the Regulations or the Rules.

(2)The NCC has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

90.Confidentiality

(1)The NCC must take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in, or in connection with, the performance of its functions or the exercise of its powers under this Law, the Regulations or the Rules.

(2)For the purposes of subsection (1), the disclosure of information as required or permitted by this Law, a law of the Commonwealth, a State or Territory is taken to be authorised use and disclosure of the information.

(3)Disclosing information to 1 of the following is authorised use and disclosure of the information:

(a)the ACCC;

(b)the AER;

(c)the ERA;

(d)the AEMC;

(e)any staff or consultant assisting a body mentioned in paragraph (a) to (d) in performing its functions or exercising its powers;

(f)any other person or body prescribed by the Regulations for the purpose of this paragraph.

(4)A person or body to whom information is disclosed under subsection (3) may use the information for any purpose connected with the performance of the functions, or the exercise of the powers, of the person or body.

(5)The NCC may impose conditions to be complied with in relation to information disclosed under subsection (3).

(6)For the purposes of subsection (1), the use or disclosure of information by a person for the purposes of performing the person’s functions, or exercising the person’s powers, as—

(a)a Councillor or a person referred to in section 29M of the Trade Practices Act 1974 of the Commonwealth; or

(b)a person who is authorised to perform or exercise a function or power of, or on behalf of, the NCC,

is taken to be authorised use and disclosure of the information.

(7)Regulations made for the purposes of this section may specify uses of information and disclosures of information that are authorised uses and authorised disclosures for the purposes of this section.

(8)Nothing in any of the above subsections limits—

(a)anything else in any of those subsections; or

(b)what may otherwise constitute, for the purposes of subsection (1), authorised use or disclosure of information.

(9)In this section—

Councillor has the same meaning as in the Trade Practices Act 1974 of the Commonwealth.

Note—

See also Chapter 10 Part 2 Division 2.

Part 5Functions and powers of Tribunal

91.Functions and powers of Tribunal under this Law

(1)The Tribunal has the functions and powers conferred on it under Chapter 8 Part 5 and any Regulations made for the purposes of that Division.

(2)The Tribunal has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

Chapter 3Coverage and classification of pipelines

Part 1Coverage of pipelines

Division 1 — Coverage determinations

92.Application for recommendation that a pipeline be a covered pipeline

(1)Any person may apply for a determination that a pipeline be a covered pipeline (a coverage determination).

(2)An application for a coverage determination—

(a)is to be made to the NCC in accordance with the Rules; and

(b)must contain the information required by the Rules; and

(c)must be accompanied by the fee prescribed by the Regulations (if any).

93.Application to be dealt with in accordance with the Rules

Subject to section 94, on receiving an application under section 92 the NCC must deal with it in accordance with the Rules.

94.NCC may defer consideration of application in certain cases

(1)This section applies if an application under section 92 is made in relation to a proposed pipeline after—

(a)an application has been made to the AER under the Rules for the approval, by the AER, of the tender process for the construction and operation of the proposed pipeline as a competitive tender process; or

(b)a tender approval decision has been made in respect of the tender process for the construction and operation of the proposed pipeline.

(2)The NCC may defer consideration of whether to make a recommendation in respect of the application until—

(a)the application for the approval, by the AER, of the tender process for the construction and operation of the proposed pipeline as a competitive tender process has been rejected by the AER under the Rules; or

(b)the tender approval decision—

(i)has been revoked under the Rules; or

(ii)has lapsed as provided under the Rules.

95.NCC coverage recommendation

(1)Subject to sections 94 and 96, the NCC must recommend to the relevant Minister that the pipeline the subject of the application—

(a)be a covered pipeline; or

(b)not be a covered pipeline.

Note—

See also Chapter 3 Part 2 Division 1 Subdivision 1.

(2)A recommendation under this section must—

(a)be made in accordance with this Law and the Rules; and

(b)be made within the time specified by the Rules; and

(c)contain the information required by the Rules; and

(d)be given to the persons specified by the Rules; and

(e)be made publicly available in accordance with the Rules.

(3)A recommendation under this section may recommend an outcome different from the outcome sought in the application under section 92.

Example—

An applicant may apply for a determination that the whole of a pipeline be a covered pipeline. The NCC may recommend that only a part of the pipeline the subject of the application be covered or may recommend that the pipeline not be covered.

(4)A recommendation under this section must be delivered to the relevant Minister without delay.

96.NCC must not make coverage recommendation if tender approval decision becomes irrevocable

Despite anything to the contrary in this Division, the NCC—

(a)must not make a recommendation under section 95 if the pipeline is the subject of a tender approval decision that—

(i)has not lapsed as provided under the Rules; or

(ii)is not revoked under the Rules; and

(b)must, for the purposes of paragraph (a), treat the application as having never been made.

97.Principles governing the making of a coverage recommendation

(1)In making a coverage recommendation, the NCC—

(a)must give effect to the pipeline coverage criteria; and

(b)in deciding whether or not the pipeline coverage criteria are satisfied must have regard to the national gas objective.

(2)The NCC gives effect to the pipeline coverage criteria as follows:

(a)if the NCC is satisfied that all the pipeline coverage criteria are satisfied in relation to the pipeline—the recommendation must be in favour of the pipeline being a covered pipeline;

(b)if the NCC is not satisfied that all the pipeline coverage criteria are satisfied in relation to the pipeline—the recommendation must be against the pipeline being a covered pipeline.

98.Initial classification decision to be made as part of recommendation

(1)The NCC must, as part of a coverage recommendation, classify the pipeline the subject of an application under section 92 as a transmission pipeline or a distribution pipeline (an initial classification decision). In doing so, the NCC must apply the pipeline classification criterion.

(2)The NCC must as part of an initial classification decision—

(a)if it classifies the pipeline the subject of the application as a transmission pipeline—determine whether the transmission pipeline is also a cross boundary transmission pipeline;

(b)if it classifies the pipeline the subject of the application as a distribution pipeline—determine whether the distribution pipeline is also a cross boundary distribution pipeline.

(3)The NCC must also determine, as part of an initial classification decision, the participating jurisdiction with which the pipeline the subject of the application under section 92 is most closely connected if the NCC determines the pipeline is also a cross boundary distribution pipeline. In doing so, the NCC must apply the pipeline classification criterion.

99.Relevant Minister’s determination on application

(1)On receiving a coverage recommendation, the relevant Minister must decide whether to make a coverage determination in respect of the pipeline to which the recommendation relates.

(2)The relevant Minister must use his or her best endeavours to make the decision within 20 business days after receiving the coverage recommendation.

(3)If the relevant Minister is unable to make the decision within the period specified under subsection (2), he or she must make the decision as soon as reasonably practicable after the end of the specified period.

(4)The relevant Minister, for the purpose of making the decision, may request submissions or comments in relation to an application under section 92.

(5)A coverage determination or a decision not to make a coverage determination must—

(a)be made in accordance with this Law and the Rules; and

(b)contain the information required by the Rules; and

(c)be given to the persons specified by the Rules; and

(d)be made publicly available in accordance with the Rules.

(6)In the case of a coverage determination, the determination must specify the date the determination takes effect.

(7)A coverage determination may have an outcome different to the outcome—

(a)sought in the application under section 92; or

(b)of the coverage recommendation.

Example—

An applicant may apply for a determination that the whole of a pipeline be a covered pipeline. The NCC may recommend that only a part of the pipeline the subject of the application be covered. The relevant Minister may determine that different parts of the pipeline to those recommended by the NCC be covered.

100.Principles governing the making of a coverage determination or decision not to do so

(1)In deciding whether to make a coverage determination under this Division, the relevant Minister—

(a)must give effect to the pipeline coverage criteria; and

(b)in deciding whether or not the pipeline coverage criteria are satisfied in relation to the pipeline—

(i)must have regard to the national gas objective; and

(ii)must have regard to the coverage recommendation; and

(iii)must take into account any submissions or comments he or she receives on a request under section 99(4); and

(iv)may take into account any relevant submissions and comments made to the NCC by the public under the Rules in relation to the application.

(2)The relevant Minister gives effect to the pipeline coverage criteria as follows:

(a)if the relevant Minister is satisfied that all the pipeline coverage criteria are satisfied in relation to the pipeline—the Minister must make a coverage determination;

(b)if the relevant Minister is not satisfied that all the pipeline coverage criteria are satisfied in relation to the pipeline—the Minister must not make a coverage determination.

101.Operation and effect of coverage determination

The pipeline the subject of a coverage determination becomes a covered pipeline—

(a)when the coverage determination takes effect; and

(b)continues to be a covered pipeline while the coverage determination remains in effect.

Division 2 — Coverage revocation determinations

102.Application for a determination that a pipeline no longer be a covered pipeline

(1)Any person may apply for a determination that a covered pipeline no longer be a covered pipeline (a coverage revocation determination).

(2)An application for a coverage revocation determination—

(a)is to be made to the NCC in accordance with the Rules; and

(b)must contain the information required by the Rules; and

(c)must be accompanied by the fee prescribed by the Regulations (if any).

103.Application to be dealt with in accordance with the Rules

On receiving an application under section 102, the NCC must deal with it in accordance with the Rules.

104.NCC coverage revocation recommendation

(1)The NCC must make a recommendation to the relevant Minister as to whether the covered pipeline the subject of the application should continue to be a covered pipeline.

Note—

See also section 119.

(2)A recommendation under this section must—

(a)be made in accordance with this Law and the Rules; and

(b)be made within the time specified by the Rules; and

(c)contain the information required by the Rules; and

(d)be given to the persons specified by the Rules; and

(e)be made publicly available in accordance with the Rules.

(3)A recommendation under this section may recommend an outcome different from the outcome sought in the application under section 102.

Example—

A service provider may apply for a determination that revokes the coverage of the covered pipeline by means of which the provider provides pipeline services. The NCC may recommend that the coverage of the covered pipeline be only partly revoked or not be revoked.

(4)A recommendation under this section must be delivered to the relevant Minister without delay.

105.Principles governing the making of a coverage revocation recommendation

(1)In making a coverage revocation recommendation, the NCC—

(a)must give effect to the pipeline coverage criteria; and

(b)in deciding whether or not the pipeline coverage criteria are satisfied must have regard to the national gas objective.

(2)The NCC gives effect to the pipeline coverage criteria as follows:

(a)if the NCC is satisfied that all the pipeline coverage criteria are satisfied in relation to the pipeline—the recommendation must be in favour of the pipeline continuing to be a covered pipeline;

(b)if the NCC is not satisfied that all the pipeline coverage criteria are satisfied in relation to the pipeline—the recommendation must be in favour of the pipeline no longer being a covered pipeline.

106.Relevant Minister’s determination on application

(1)On receiving a coverage revocation recommendation, the relevant Minister must decide whether to make a coverage revocation determination in respect of the pipeline to which the recommendation relates.

(2)The relevant Minister must use his or her best endeavours to make the decision within 20 business days after receiving the coverage revocation recommendation.

(3)If the relevant Minister is unable to make the decision within the period specified under subsection (2), he or she must make the decision as soon as reasonably practicable after the end of the specified period.

(4)The relevant Minister, for the purpose of making the decision, may request submissions or comments in relation to an application under section 102.

(5)A coverage revocation determination or a decision not to make a coverage revocation determination must—

(a)be made in accordance with this Law and the Rules; and

(b)contain the information required by the Rules; and

(c)be given to the persons specified by the Rules; and

(d)be made publicly available in accordance with the Rules.

(6)In the case of a coverage revocation determination, the determination must specify the date the determination takes effect.

(7)A coverage revocation determination may have an outcome different to the outcome—

(a)sought in the application under section 102; or

(b)of the coverage revocation recommendation.

Example—

A service provider may apply for a determination that revokes the coverage of the covered pipeline by means of which the provider provides pipeline services. The NCC may recommend that the coverage of the covered pipeline be only partly revoked. The relevant Minister may make a determination that revokes coverage of different parts of the covered pipeline to those parts in relation to which the NCC recommended coverage be revoked.

107.Principles governing the making of a coverage revocation determination or decision not to do so

(1)In deciding whether to make a coverage revocation determination under this Division, the relevant Minister—

(a)must give effect to the pipeline coverage criteria; and

(b)in deciding whether or not the pipeline coverage criteria are satisfied in relation to the pipeline—

(i)must have regard to the national gas objective; and

(ii)must have regard to the coverage revocation recommendation; and

(iii)must take into account any submissions or comments he or she receives on a request under section 106(4); and

(iv)may take into account any relevant submissions and comments made to the NCC by the public under the Rules in relation to the application.

(2)The relevant Minister gives effect to the pipeline coverage criteria as follows:

(a)if the relevant Minister is satisfied that all the pipeline coverage criteria are satisfied in relation to the pipeline—the Minister must not make a coverage revocation determination;

(b)if the relevant Minister is not satisfied that all the pipeline coverage criteria are satisfied in relation to the pipeline—the Minister must make a coverage revocation determination.

108.Operation and effect of coverage revocation determination

The pipeline the subject of a coverage revocation determination ceases to be a covered pipeline when the coverage revocation determination takes effect.

Part 2Light regulation of covered pipeline services

Division 1 — Making of light regulation determinations

Subdivision 1 — Decisions when pipeline is not a covered pipeline

109.Application of Subdivision

This Subdivision applies if—

(a)an application has been made under section 92 for a coverage determination; and

(b)the pipeline the subject of the application is not a designated pipeline.

110.NCC’s decision on light regulation of pipeline services

(1)The NCC must decide whether to make a determination that the pipeline services provided or to be provided by means of the pipeline are light regulation services (a light regulation determination).

(2)The NCC must make its decision under subsection (1)—

(a)at the same time as it makes the coverage recommendation; and

(b)within the time it must make the coverage recommendation.

(3)A light regulation determination or a decision not to make a light regulation determination must—

(a)be made in accordance with this Law and the Rules; and

Note—

For example, see section 122.

(b)be attached to the coverage recommendation; and

(c)contain the information required by the Rules.

Note—

If the NCC makes a light regulation determination, and the relevant Minister makes the coverage determination, the service provider may submit a limited access arrangement in respect of the light regulation services to the AER for approval: see section 116.

Subdivision 2 — Decisions when pipeline is a covered pipeline

111.Application of Subdivision

This Subdivision applies if a service provider provides pipelines services—

(a)by means of a covered pipeline that is not a designated pipeline; and

(b)to which an applicable access arrangement approved or made under a full access arrangement decision applies.

112.Application

(1)A service provider may apply to the NCC for a determination that pipeline services provided by the service provider by means of a covered pipeline be light regulation services (a light regulation determination).

(2)An application must—

(a)be in accordance with the Rules; and

(b)contain the information required by the Rules.

(3)An application may only be made in respect of all of the pipeline services provided by means of the covered pipeline.

113.Application to be dealt with in accordance with the Rules

On receiving an application under section 112, the NCC must deal with it in accordance with the Rules.

114.NCC’s decision on light regulation of pipeline services

(1)The NCC must decide whether to make a light regulation determination within—

(a)4 months after receiving an application under section 112; or

(b)if the Rules specify a later period, that period.

(2)A light regulation determination or a decision not to make a light regulation determination must—

(a)be made in accordance with this Law and the Rules; and

Note—

For example, see section 122.

(b)contain the information required by the Rules; and

(c)be given to the persons specified by the Rules; and

(d)be made publicly available in accordance with the Rules.

Note—

If the NCC makes a light regulation determination, the service provider may submit a limited access arrangement in respect of the light regulation services to the AER for approval: see section 116.

Subdivision 3 — Operation and effect of light regulation determinations

115.When light regulation determinations take effect

(1)A light regulation determination takes effect—

(a)in the case of a light regulation determination made under Subdivision 1—on the day the relevant coverage determination takes effect;

(b)in the case of a light regulation determination made under Subdivision 2—60 business days after the light regulation determination is made.

(2)A light regulation determination continues in operation until—

(a)it is revoked by operation of section 117(5); or

(b)a decision under section 119(2) or 120 takes effect; or

(c)it is revoked by operation of section 123(2); or

(d)it is revoked by operation of section 124.

116.Submission of limited access arrangement for light regulation services

(1)A service provider may, in respect of light regulation services the service provider provides or intends to provide, submit a limited access arrangement to the AER for approval by the AER under the Rules.

(2)If the service provider chooses to submit a limited access arrangement in accordance with subsection (1), the limited access arrangement must—

(a)be submitted in accordance with the Rules; and

(b)contain the information required by the Rules.

(3)A service provider must submit to the AER, for approval by the AER under the Rules, revisions to an applicable access arrangement that is a limited access arrangement and that applies to the light regulation services the provider provides—

(a)in accordance with the Rules; and

(b)within the period specified by the Rules.

Division 2 — Revocation of light regulation determinations

Subdivision 1 — On advice from service providers

117.Advice by service provider that light regulation services should cease to be light regulation services

(1)A service provider may advise the NCC that it wishes that the pipeline services it provides cease to be light regulation services.

(2)An advice under subsection (1) must be in writing.

(3)On receiving an advice under subsection (1), the NCC must, without delay, publish notice of receipt of that advice—

(a)on its website; and

(b)in a newspaper circulating generally throughout Australia.

(4)On publication of a notice under subsection (3) the service provider must comply with section 132.

(5)The light regulation determination applying to the pipeline services is, by force of this section, revoked on the same day that an access arrangement that applies to the pipeline services provided by that service provider is, as the case requires, approved or made under a full access arrangement decision.

(6)On the revocation of the light regulation determination the pipeline services to which the light regulation determination applied cease to be light regulation services.

Subdivision 2 — On application by persons other than service providers

118.Application (other than by service provider) for revocation of light regulation determinations

(1)A person (other than the service provider who provides light regulation services) may apply to the NCC for the revocation of a light regulation determination relating to those services.

(2)An application under subsection (1) must—

(a)be in accordance with the Rules; and

(b)contain the information required by the Rules.

119.Decisions on applications made around time of applications for coverage revocation determinations

(1)This section applies if an application is made under section 118 and—

(a)there is an application for a coverage revocation determination under section 102 under consideration—

(i)in respect of the covered pipeline by means of which the light regulation services the subject of the application under section 118 are provided; and

(ii)in respect of which the NCC has not made a coverage revocation recommendation; or

(b)an application for a coverage revocation determination is made under section 102 in respect of the covered pipeline by means of which the light regulation services the subject of the application under section 118 are provided—

(i)after the application under section 118; but

(ii)before the NCC makes its decision in respect of the application under section 118.

(2)Despite anything to the contrary in this Part, the NCC must make its decision in respect of the application under this section.

(3)On receiving the application under section 118, the NCC must decide whether to revoke the light regulation determination.

(4)The NCC must make its decision under subsection (3)—

(a)at the same time as it makes the coverage revocation recommendation; and

(b)within the time it must make the coverage revocation recommendation.

(5)A decision under subsection (3) must—

(a)be made in accordance with this Law and the Rules; and

Note—

For example, see section 122.

(b)be attached to the coverage revocation recommendation; and

(c)contain the information required by the Rules.

120.NCC decision on application where no application for a coverage revocation recommendation

(1)This section applies if—

(a)an application is made under section 118; and

(b)no application for a coverage revocation determination in respect of the covered pipeline (by means of which the light regulation services the subject of the application under section 118) are provided is made before the NCC makes its decision in respect of the application under section 118.

(2)Subject to this section, on receiving an application under section 118 the NCC must deal with it in accordance with the Rules.

(3)The NCC must decide whether to revoke a light regulation determination within—

(a)4 months after receiving an application under section 118; or

(b)if the Rules specify a later period, that period.

(4)A decision under this section must—

(a)be made in accordance with this Law and the Rules; and

Note—

For example, see section 122.

(b)contain the information required by the Rules; and

(c)be given to the persons specified by the Rules; and

(d)be made publicly available in accordance with the Rules.

121.Operation and effect of decision of NCC under this Division

(1)Subject to section 124, on the making of a decision under section 119(2) or 120 revoking a light regulation determination, the service provider must comply with section 132.

(2)However, the decision under section 119(2) or 120 revoking a light regulation determination does not take effect until an access arrangement that applies to the pipeline services provided by that service provider is approved or made under a full access arrangement decision.

(3)The effect of a decision under section 119(2) or 120 revoking a light regulation determination is that the pipeline services to which the light regulation determination applied cease to be light regulation services.

Division 3 — Principles governing light regulation determinations

122.Principles governing the making or revoking of light regulation determinations

(1)In deciding whether to make a light regulation determination under Division 1 or to revoke a light regulation determination under Division 2, the NCC must consider—

(a)the likely effectiveness of the forms of regulation provided for under this Law and the Rules to regulate the provision of the pipeline services (the subject of the application) to promote access to pipeline services; and

(b)the effect of the forms of regulation provided for under this Law and the Rules on—

(i)the likely costs that may be incurred by an efficient service provider; and

(ii)the likely costs that may be incurred by efficient users and efficient prospective users; and

(iii)the likely costs of end users.

Note—

The forms of regulation provided for under this Law and the Rules to regulate the provision of the pipeline services by means of a covered pipeline are—

(a)making a light regulation determination so that those services become light regulation services;

(b)not making a light regulation determination so that those services are regulated under a full access arrangement decision that approves or makes the applicable access arrangement that applies to those services.

(2)In doing so, the NCC—

(a)must have regard to the national gas objective; and

(b)must have regard to the form of regulation factors; and

(c)may have regard to any other matters it considers relevant.

Division 4 — Revocation if coverage determination not made

123.Light regulation determination revoked if coverage determination not made

(1)This section applies if—

(a)a light regulation determination has been made in respect of pipeline services; but

(b)the pipeline by means of which those services will be provided does not become a covered pipeline because the relevant Minister, contrary to a coverage recommendation recommending coverage, makes a decision not to make a coverage determination.

(2)The light regulation determination is, by force of this section, revoked on the same day as the relevant Minister’s decision not to make a coverage determination takes effect.

Division 5 — Effect of pipeline ceasing to be covered pipeline

124.Light regulation services cease to be such services on cessation of coverage of pipeline

If a pipeline by means of which light regulation services are provided ceases to be a covered pipeline because of a coverage revocation determination—

(a)the light regulation determination applying to the light regulation services provided by means of that pipeline is, by force of this section, revoked on the same day the coverage revocation determination takes effect; and

(b)to avoid doubt, the light regulation services to which that determination applied cease to be light regulation services on the same day.

Division 6 — AER reviews into designated pipelines

125.AER reviews

(1)The MCE may request the AER to conduct a review into, and report to it as to, whether a pipeline should continue to be a designated pipeline.

(2)A service provider that provides pipeline services by means of a designated pipeline may request the AER to conduct a review into, and report to the MCE as to, whether that pipeline should continue to be a designated pipeline.

(3)A request under subsection (1) or (2) must be in writing.

(4)On receiving a request under this section, the AER must conduct a review as to whether the pipeline the subject of the request should continue to be a designated pipeline.

(5)In conducting a review under this section, the AER must—

(a)have regard to—

(i)the national gas objective; and