National Gas Access (WA) Act 2009
National Gas Access (WA) Act 2009
Western Australia
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 Schedule32
2.Section 1 modified32
3.Section 2 modified32
4.Sections 2A and 2B inserted34
2A.Meaning of AER modified34
2B.References to WA application Act34
5.Chapter 1 Part 1A inserted34
Part 1A — Postponement of Natural Gas Services Bulletin Board provisions
20A.Minister may fix day on which provisions apply34
6.Section 29 modified35
7.Section 30 modified35
7A.Section 30R deleted36
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 powers36
9.Section 181A inserted37
181A.Providing information for certain disputes37
10.Section 231 modified37
11.Section 240 modified38
12.Section 290 modified38
13.Section 294 replaced38
294.Initial National Gas Rules for WA38
14.Schedule 1 modified39
15.Schedule 2 clause 27A inserted39
27A.WA modifications of clause 2739
16.Schedule 2 clause 34 modified39
17.Schedule 2 clause 50 replaced40
50.Attempts and incitement40
17A.Schedule 2 clause 51 modified40
18.Schedule 3 modified40
Notes about National Gas Access (WA) Act 2009
Compilation table43
Note — Western Australian National Gas Access Law text
Chapter 1 — Preliminary
Part 1 — Citation and interpretation
1.Citation44
2.Definitions44
2A.Meaning of AER modified65
2B.References to WA application Act65
3.Meaning of civil penalty provision66
4.Meaning of conduct provision67
5.Meaning of prospective user67
6.Meaning of regulatory obligation or requirement68
7.Meaning of regulatory payment69
8.Meaning of service provider69
9.Passive owners of scheme pipelines deemed to provide or intend to provide pipeline services70
10.Things done by 1 service provider to be treated as being done by all of service provider group70
11.Local agents of foreign service providers71
12.Commissioning of a pipeline72
13.Pipeline classification criterion72
14.Jurisdictional determination criteria—cross boundary distribution pipelines73
15.Pipeline coverage criteria73
16.Form of regulation factors74
17.Effect of separate and consolidated access arrangements in certain cases75
18.Certain extensions to, or expansion of the capacity of, pipelines to be taken to be part of a covered pipeline76
19.Expansions of and extensions to covered pipeline by which light regulation services are provided76
20.Interpretation generally76
Part 1A — Postponement of Natural Gas Services Bulletin Board provisions
20A.Minister may fix day on which provisions apply77
Part 2 — Participating jurisdictions
21.Participating jurisdictions77
22.Ministers of participating jurisdictions77
Part 3 — National gas objective and principles
Division 1 — National gas objective
23.National gas objective78
Division 2 — Revenue and pricing principles
24.Revenue and pricing principles78
Division 3 — MCE policy principles
25.MCE statements of policy principles79
Part 4 — Operation and effect of National Gas Rules
26.National Gas Rules to have force of law80
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 AER81
28.Manner in which AER must perform or exercise AER economic regulatory functions or powers82
29.Delegations84
30.Confidentiality84
Division 1A—Rate of return instrument
Subdivision 1—Preliminary
30A.Definitions86
30B.Rate of return instrument has force of law87
30C.Rate of return instrument is binding on AER and covered pipeline service providers87
Subdivision 2—Requirement to make rate of return instrument
30D.AER to make rate of return instrument87
30E.Content of rate of return instrument88
Subdivision 3—Consultation requirements
30F.Process for making rate of return instrument89
30G.Other matters AER must have regard to in making instrument89
30H.Requirements before publishing draft instrument90
30I.Consumer reference group91
30J.Publication of draft instrument and other information92
30K.Report about draft instrument by independent panel92
30L.Publication of explanatory information93
30M.Failure to comply does not affect validity93
Subdivision 4—Publication, review and other matters
30N.Publication of rate of return instrument94
30O.Commencement and duration of instrument94
30P.Review and replacement of instrument94
30Q.Application of instrument95
Subdivision 5—Confidentiality of information
30S.Confidentiality96
30T.Disclosure of information given in confidence97
Division 2 — Search warrants
31.Definitions97
32.Authorised person98
33.Identity cards98
34.Return of identity cards98
35.Search warrant98
36.Announcement of entry and details of warrant to be given to occupier or other person at premises100
37.Immediate entry permitted in certain cases101
38.Copies of seized documents101
39.Retention and return of seized documents or things101
40.Extension of period of retention of documents or things seized102
41.Obstruction of persons authorised to enter103
Division 3 — General information gathering powers
42.Power to obtain information and documents in relation to performance and exercise of functions and powers103
Division 4 — Regulatory information notices and general regulatory information orders
Subdivision 1 — Interpretation
43.Definitions106
44.Meaning of contributing service106
45.Meaning of general regulatory information order107
46.Meaning of regulatory information notice107
47.Division does not limit operation of information gathering powers under Division 3108
Subdivision 2 — Serving and making of regulatory information instruments
48.Service and making of regulatory information instrument108
49.Additional matters to be considered for related provider regulatory information instruments109
50.AER must consult before publishing a general regulatory information order111
51.Publication requirements for general regulatory information orders111
52.Opportunity to be heard before regulatory information notice is served112
Subdivision 3 — Form and content of regulatory information instruments
53.Form and content of regulatory information instrument113
54.Further provision about the information that may be described in a regulatory information instrument114
55.Further provision about manner in which information must be provided to AER or kept115
Subdivision 4 — Compliance with regulatory information instruments
56.Compliance with regulatory information notice that is served116
57.Compliance with general regulatory information order116
58.Exemptions from compliance with general regulatory information order117
59.Assumptions where there is non‑compliance with regulatory information instrument117
Subdivision 5 — General
60.Providing to AER false and misleading information118
61.Person cannot rely on duty of confidence to avoid compliance with regulatory information instrument119
62.Legal professional privilege not affected119
63.Protection against self‑incrimination119
Division 5 — Service provider performance reports
64.Preparation of service provider performance reports120
Division 6 — Miscellaneous matters
65.Consideration by the AER of submissions or comments made to it under this Law or the Rules121
66.Use of information provided under a notice under Division 3 or a regulatory information instrument121
67.AER to inform certain persons of decisions not to investigate breaches, institute proceedings or serve infringement notices122
68.AER enforcement guidelines122
68C.Record of designated reviewable regulatory decisions123
Part 1A — Functions and powers of WA arbitrator
68A.Manner in which WA arbitrator must perform or exercise certain functions or powers124
Part 2 — Functions and powers of the Australian Energy Market Commission
Division 1 — General
69.Functions and powers of the AEMC125
70.Delegations125
71.Confidentiality125
72.AEMC must have regard to national gas objective126
73.AEMC must have regard to MCE statements of policy principles in relation to Rule making and reviews126
Division 2 — Rule making functions and powers of the AEMC
74.Subject matter for National Gas Rules126
75.Rules relating to MCE or Ministers of participating jurisdictions require MCE consent129
76.AEMC must not make Rules that create criminal offences or impose civil penalties for breaches130
77.Documents etc applied, adopted and incorporated by Rules to be publicly available130
Division 3 — Committees, panels and working groups of the AEMC
78.Establishment of committees, panels and working groups131
Division 4 — MCE directed reviews
79.MCE directions131
80.Terms of reference132
81.Notice of MCE directed review133
82.Conduct of MCE directed review133
Division 5 — Other reviews
83.Rule reviews by the AEMC133
Division 6 — Miscellaneous matters
83A.Special information and transparency requirements relating to non‑scheme pipelines134
84.AEMC must publish and make available up to date versions of Rules136
85.Fees137
86.Immunity from personal liability of AEMC officials137
Part 3 — Functions and powers of Ministers of participating jurisdictions
87.Functions and powers of Minister of this participating jurisdiction under this Law137
88.Functions and powers of Commonwealth Minister under this Law138
Part 4 — Functions and powers of the NCC
89.Functions and powers of NCC under this Law138
90.Confidentiality138
Part 5 — Functions and powers of Tribunal
91.Functions and powers of Tribunal under this Law140
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 pipeline141
93.Application to be dealt with in accordance with the Rules141
94.NCC may defer consideration of application in certain cases141
95.NCC coverage recommendation142
96.NCC must not make coverage recommendation if tender approval decision becomes irrevocable143
97.Principles governing the making of a coverage recommendation143
98.Initial classification decision to be made as part of recommendation144
99.Relevant Minister’s determination on application145
100.Principles governing the making of a coverage determination or decision not to do so146
101.Operation and effect of coverage determination147
Division 2 — Coverage revocation determinations
102.Application for a determination that a pipeline no longer be a covered pipeline147
103.Application to be dealt with in accordance with the Rules147
104.NCC coverage revocation recommendation148
105.Principles governing the making of a coverage revocation recommendation148
106.Relevant Minister’s determination on application149
107.Principles governing the making of a coverage revocation determination or decision not to do so150
108.Operation and effect of coverage revocation determination151
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 Subdivision151
110.NCC’s decision on light regulation of pipeline services152
Subdivision 2 — Decisions when pipeline is a covered pipeline
111.Application of Subdivision152
112.Application153
113.Application to be dealt with in accordance with the Rules153
114.NCC’s decision on light regulation of pipeline services153
Subdivision 3 — Operation and effect of light regulation determinations
115.When light regulation determinations take effect154
116.Submission of limited access arrangement for light regulation services154
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 services155
Subdivision 2 — On application by persons other than service providers
118.Application (other than by service provider) for revocation of light regulation determinations156
119.Decisions on applications made around time of applications for coverage revocation determinations156
120.NCC decision on application where no application for a coverage revocation recommendation158
121.Operation and effect of decision of NCC under this Division158
Division 3 — Principles governing light regulation determinations
122.Principles governing the making or revoking of light regulation determinations159
Division 4 — Revocation if coverage determination not made
123.Light regulation determination revoked if coverage determination not made160
Division 5 — Effect of pipeline ceasing to be covered pipeline
124.Light regulation services cease to be such services on cessation of coverage of pipeline161
Division 6 — AER reviews into designated pipelines
125.AER reviews161
Part 3 — Coverage of pipelines the subject of tender process
126.Tender approval pipelines deemed to be covered pipelines162
Part 4 — Coverage following approval of voluntary access arrangement
127.Certain pipelines become covered pipelines on approval of voluntary access arrangement163
Part 5 — Reclassification of pipelines
128.Service provider may apply for reclassification of pipeline164
129.Reclassification decision164
130.Effect of reclassification decision165
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 pipeline166
132.Submission of full access arrangement or revisions to applicable full access arrangements166
133.Preventing or hindering access167
134.Supply and haulage of natural gas169
135.Covered pipeline service provider must comply with queuing requirements169
136.Covered pipeline service provider providing light regulation services must not price discriminate170
Part 2 — Structural and operational separation requirements (ring fencing)
Division 1 — Interpretation
137.Definitions170
138.Meaning of marketing staff171
Division 2 — Minimum ring fencing requirements
139.Carrying on of related businesses prohibited172
140.Marketing staff and the taking part in related businesses172
141.Accounts that must be prepared, maintained and kept173
Division 3 — Additional ring fencing requirements
142.Division does not limit operation of Division 2173
143.AER ring fencing determinations173
144.AER to have regard to likely compliance costs of additional ring fencing requirements175
145.Types of ring fencing requirements that may be specified in an AER ring fencing determination175
Division 4 — AER ring fencing exemptions
146.Exemptions from minimum ring fencing requirements176
Division 5 — Associate contracts
147.Service provider must not enter into or give effect to associate contracts that have anti‑competitive effect177
148.Service provider must not enter into or give effect to associate contracts inconsistent with competitive parity rule177
Chapter 5 — Greenfields pipeline incentives
Part 1 — Interpretation
149.Definitions179
150.International pipeline to be a transmission pipeline for purposes of Chapter179
Part 2 — 15‑year no‑coverage determinations
151.Application for 15‑year no‑coverage determination for proposed pipeline180
152.Application to be dealt with in accordance with the Rules181
153.No‑coverage recommendation181
154.Principles governing the making of a no‑coverage recommendation182
155.Initial classification decision to be made as part of recommendation182
156.Relevant Minister’s determination on application183
157.Principles governing the making of a 15‑year no‑coverage determination or decision not to do so184
158.Effect of 15‑year no‑coverage determination185
159.Consequences of Minister deciding against making 15‑year no‑coverage determination for international pipeline185
Part 3 — Price regulation exemptions
Division 1 — Application for price regulation exemption
160.Application for price regulation exemption186
Division 2 — Recommendations by NCC
161.Application to be dealt with in accordance with the Rules187
162.NCC’s recommendation187
163.General principle governing NCC’s recommendation187
Division 3 — Making and effect of price regulation exemption
164.Making of price regulation exemption188
165.Principles governing the making of a price regulation exemption188
166.Conditions applying to a price regulation exemption189
167.Effect of price regulation exemption190
Division 4 — Limited access arrangements
168.Limited access arrangements for pipeline services provided by international pipeline to which a price regulation exemption applies190
Division 5 — Other matters
169.Other obligations to which service provider is subject191
170.Service provider must not price discriminate in providing international pipeline services192
Part 4 — Extended or modified application of greenfields pipeline incentive
171.Requirement for conformity between pipeline description and pipeline as constructed192
172.Power of relevant Minister to amend pipeline description193
Part 5 — Early termination of greenfields pipeline incentive
173.Greenfields pipeline incentive may lapse194
174.Revocation by consent194
175.Revocation for misrepresentation194
176.Revocation for breach of condition to which a price regulation exemption is subject194
177.Exhaustive provision for termination of greenfields pipeline incentive194
Chapter 6 — Access disputes—scheme pipelines
Part 1 — Interpretation and application
178.Definitions195
179.Chapter does not limit how disputes about access may be raised or dealt with195
180.No price or revenue regulation for access disputes relating to international pipeline services195
Part 2 — Notification of access dispute
181.Notification of access dispute196
181A.Providing information for certain disputes196
182.Withdrawal of notification197
183.Parties to an access dispute197
Part 3 — Access determinations
184.Determination of access dispute198
185.Dispute resolution body may require parties to mediate, conciliate or engage in an alternative dispute resolution process198
186.Dispute resolution body may terminate access dispute in certain cases199
187.No access determination if dispute resolution body considers there is genuine competition200
188.Restrictions on access determinations200
189.Access determination must give effect to applicable access arrangement201
190.Access determinations and past contributions of capital to fund installations or the construction of new facilities201
191.Rules may allow determination that varies applicable access arrangement for installation of a new facility202
192.Access determinations need not require the provision of a pipeline service202
193.Content of access determinations203
Part 4 — Variation of access determinations
194.Variation of access determination203
Part 5 — Compliance with access determinations
195.Compliance with access determination204
Part 6 — Access dispute hearing procedure
196.Hearing to be in private204
197.Right to representation204
198.Procedure of dispute resolution body204
199.Particular powers of dispute resolution body in a hearing205
200.Disclosure of information206
201.Power to take evidence on oath or affirmation206
202.Failing to attend as a witness206
203.Failing to answer questions etc207
204.Intimidation etc207
205.Party may request dispute resolution body to treat material as confidential208
206.Costs209
207.Outstanding costs are a debt due to party awarded the costs211
Part 7 — Joint access dispute hearings
208.Definition211
209.Joint dispute hearing211
210.Consulting the parties212
211.Constitution and procedure of dispute resolution body for joint dispute hearings212
212.Record of proceedings etc212
Part 8 — Miscellaneous matters
213.Correction of access determinations for clerical mistakes etc213
214.Reservation of capacity during an access dispute213
215.Subsequent service providers bound by access determinations213
216.Regulations about the costs to be paid by parties to access dispute214
Chapter 6A—Access disputes—non-scheme pipelines
Part 1—Interpretation and application
216A.Definitions215
216B.Meaning of prospective user216
216C.Application of Chapter217
216D.Application of this Chapter to disputes arising under Rules217
216E.Chapter does not limit how disputes about access may be raised or dealt with217
Part 2—Negotiation of access
216F.Access proposals218
216G.Duty to negotiate in good faith218
216H.Notification of access dispute218
216I.Parties to an access dispute219
Part 3—Reference of dispute to arbitration
216J.Reference of dispute220
216K.Selection of arbitrator220
216L.Determination of access dispute221
216M.Principles to be taken into account222
216N.Restrictions on access determinations222
216O.Arbitrator's power to terminate arbitration223
216P.Access seeker's right to terminate arbitration224
Part 4—Compliance with access determinations
216Q.Compliance with access determinations224
Part 5—Variation of access determinations
216R.Variation of access determinations225
Part 6—Hearing procedures
216S.Hearing procedures225
Part 7—Miscellaneous matters
216T.Correction of access determinations for clerical mistakes etc226
216U.Reservation of capacity during an access dispute227
216V.Costs of arbitration227
Chapter 7 — The Natural Gas Services Bulletin Board
Part 1 — The Bulletin Board Operator
217.The Bulletin Board operator228
218.Obligation to establish and maintain the Natural Gas Services Bulletin Board228
219.Other functions of the Bulletin Board operator228
220.Powers of the Bulletin Board operator229
221.Immunity of the Bulletin Board operator229
222.Fees for services provided230
Part 2 — Bulletin Board information
223.Obligation to give information to the Bulletin Board operator230
224.Person cannot rely on duty of confidence to avoid compliance with obligation231
225.Giving to Bulletin Board operator false and misleading information231
226.Immunity of persons giving information to the Bulletin Board operator231
Part 3 — Protection of information
227.Protection of information by the Bulletin Board operator232
228.Protection of information by employees etc of the Bulletin Board operator233
Chapter 8 — Proceedings under the National Gas Law
Part 1 — Proceedings generally
229.Instituting civil proceedings under this Law236
230.Time limit within which proceedings may be instituted236
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 offences237
232.Proceedings for declaration that a person is in breach of a conduct provision239
233.Actions for damages by persons for breach of conduct provision240
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 penalty240
235.Breach of a civil penalty provision is not an offence241
236.Breaches of civil penalty provisions involving continuing failure241
237.Conduct in breach of more than 1 civil penalty provision241
238.Persons involved in breach of civil penalty provision or conduct provision242
239.Attempt to breach a civil penalty provision242
240.Civil penalties payable to the Commonwealth242
Part 4 — Judicial review of decisions under this Law, the Regulations and the Rules
241.Definition242
242.Applications for judicial review of decisions of the AEMC243
243.Applications for judicial review of decisions of the Bulletin Board operator243
Part 5 — Merits review and other non‑judicial review
Division 1 — Interpretation
244.Definitions244
Division 2 — Merits review for reviewable regulatory decisions
245.Applications for review248
246.Grounds for review249
247.By when an application must be made250
248.Tribunal must not grant leave unless serious issue to be heard and determined250
249.Leave must be refused if application is about an error relating to revenue amounts below specified threshold251
250.Tribunal must refuse to grant leave if submission not made or is made late252
251.Tribunal may refuse to grant leave to service provider in certain cases252
252.Effect of application on operation of reviewable regulatory decisions253
253.Intervention by others in a review without leave254
254.Leave for reviewable regulatory decision process participants254
255.Leave for user or consumer intervener254
256.Interveners may raise new grounds for review255
257.Parties to a review under this Division256
258.Matters that parties to a review may and may not raise in a review256
258A.Matters that may and may not be raised in a review (designated reviewable regulatory decisions)257
259.Tribunal must make determination259
260.Target time limit for Tribunal for making a determination under this Division262
261.Matters to be considered by Tribunal in making determination263
262.Assistance from NCC in certain cases267
Division 3 — Tribunal review of AER information disclosure decisions under section 329
263.Application for review268
264.Exclusion of public in certain cases268
265.Determination in the review268
266.Tribunal must be taken to have affirmed decision if decision not made within time269
267.Assistance from the AER in certain cases269
Division 4 — General
268.Costs in a review270
269.Amount of costs271
269A.Costs not to be passed on272
270.Review of Part272
Part 6 — Enforcement of access determinations
271.Enforcement of access determinations273
272.Consent injunctions274
273.Interim injunctions274
274.Factors relevant to granting a restraining injunction274
275.Factors relevant to granting a mandatory injunction275
276.Discharge or variation of injunction or other order275
Part 7 — Infringement notices
277.Power to serve notice275
278.Form of notice276
279.Infringement penalty277
280.AER cannot institute proceedings while infringement notice on foot277
281.Late payment of penalty277
282.Withdrawal of notice278
283.Refund of infringement penalty278
284.Payment expiates breach of civil penalty provision278
285.Payment not to have certain consequences279
286.Conduct in breach of more than 1 civil penalty provision279
Part 8 — Further provision for corporate liability for breaches of this Law etc
287.Definition279
288.Offences and breaches by corporations280
289.Corporations also in breach if officers and employees are in breach280
Chapter 9 — The making of the National Gas Rules
Part 1 — General
Division 1 — Interpretation
290.Definitions281
Division 2 — Rule making tests
291.Application of national gas objective283
292.AEMC must take into account form of regulation factors in certain cases283
293.AEMC must take into account revenue and pricing principles in certain cases284
Part 2 — Initial National Gas Rules
294.Initial National Gas Rules for WA284
294CA.South Australian Minister may make consequential Rules relating to rate of return instrument285
294F.South Australian Minister to make initial Rules relating to access to non‑scheme pipelines286
Part 3 — Procedure for the making of a Rule by the AEMC
295.Initiation of making of a Rule287
296.AEMC may make more preferable Rule in certain cases288
297.AEMC may make Rules that are consequential to a Rule request288
298.Content of requests for a Rule288
299.Waiver of fee for Rule requests288
300.Consolidation of 2 or more Rule requests289
301.Initial consideration of request for Rule289
302.AEMC may request further information from Rule proponent in certain cases291
303.Notice of proposed Rule291
304.Publication of non‑controversial or urgent final Rule determination292
305.“Fast track” Rules where previous public consultation by gas market regulatory body or an AEMC review294
306.Right to make written submissions and comments295
307.AEMC may hold public hearings before draft Rule determination295
308.Draft Rule determination296
309.Right to make written submissions and comments in relation to draft Rule determination297
310.Pre‑final Rule determination hearing may be held298
311.Final Rule determination299
312.Further draft Rule determination may be made where proposed Rule is a proposed more preferable Rule300
313.Making of Rule300
314.Operation and commencement of Rule301
315.Rule that is made to be published on website and made available to the public301
316.Evidence of the National Gas Rules301
Part 4 — Miscellaneous provisions relating to rule making by the AEMC
317.Extension of periods of time in Rule making procedure302
318.AEMC may extend period of time for making of final Rule determination for further consultation302
319.AEMC may publish written submissions and comments unless confidential303
320.AEMC must publicly report on Rules not made within 12 months of public notification of requests304
Chapter 10 — General
Part 1 — Provisions relating to applicable access arrangements
321.Protection of certain pre‑existing contractual rights306
322.Service provider may enter into agreement for access different from applicable access arrangement307
323.Applicable access arrangements continue to apply regardless of who provides pipeline service307
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 confidence307
325.Disclosure with prior written consent is authorised308
326.Disclosure for purposes of court and tribunal proceedings and to accord natural justice308
327.Disclosure of information given to the AER with confidential information omitted308
328.Disclosure of information given in confidence does not identify anyone309
329.Disclosure of confidential information authorised if detriment does not outweigh public benefit309
Division 2 — Disclosure of confidential information held by relevant Ministers, NCC and AEMC
330.Definitions312
331.Confidentiality of information received for scheme procedure purpose and for making of scheme decision313
Part 3 — Miscellaneous
332.Failure to make a decision under this Law or the Rules within time does not invalidate the decision315
333.Withdrawal of applications relating to coverage or reclassification315
334.Notification of Ministers of participating jurisdictions of receipt of application316
335.Relevant Minister may request NCC to give information or assistance316
336.Savings and transitionals317
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 intention328
Part 2 — General
2.Law to be construed not to exceed legislative power of Legislature328
3.Vacant provision329
4.Material that is, and is not, part of Law330
5.References to particular Acts and to enactments330
6.References taken to be included in Act or Law citation etc331
7.Interpretation best achieving Law’s purpose331
8.Use of extrinsic material in interpretation332
9.Compliance with forms334
Part 3 — Terms and references
10.Definitions334
11.Provisions relating to defined terms and gender and number339
12.Meaning of may and must etc339
13.Words and expressions used in statutory instruments339
14.References to Minister340
15.Production of records kept in computers etc341
16.References to this jurisdiction to be implied341
17.References to officers and holders of offices342
18.Reference to certain provisions of Law342
Part 4 — Functions and powers
19.Performance of statutory functions343
20.Power to make instrument or decision includes power to amend or repeal344
21.Matters for which statutory instruments may make provision344
22.Presumption of validity and power to make345
23.Appointments may be made by name or office346
24.Acting appointments346
25.Powers of appointment imply certain incidental powers348
26.Delegation349
27.Exercise of powers between enactment and commencement350
27A.WA modifications of clause 27353
Part 5 — Distance and time
28.Matters relating to distance and time353
Part 6 — Service of documents
29.Service of documents and meaning of service by post etc354
30.Meaning of service by post etc355
Part 7 — Evidentiary matters
Division 1 — Publication on websites
31.Definitions356
32.Publication of decisions on websites357
Division 2 — Evidentiary certificates
33.Definitions357
34.Evidentiary certificates—AER358
35.Evidentiary certificates—AEMC360
36.Evidentiary certificates—NCC360
37.Evidentiary certificates—relevant Minister and Commonwealth Minister361
38.Evidentiary certificates—Bulletin Board operator361
Part 8 — Commencement of this Law and statutory instruments
39.Time of commencement of this Law or a provision of this Law362
40.Time of commencement of a Rule362
Part 9 — Effect of repeal, amendment or expiration
41.Time of Law, the Regulations or Rules ceasing to have effect362
42.Repealed Law, Regulation or Rule provisions not revived363
43.Saving of operation of repealed Law, Regulation or Rule provisions363
44.Continuance of repealed provisions364
45.Law and amending Acts to be read as one364
Part 10 — Offences under this Law
46.Penalty at foot of provision364
47.Penalty other than at foot of provision365
48.Indictable offences and summary offences365
49.Double jeopardy366
50.Attempts and incitement367
Part 11 — Instruments under this Law
51.Schedule applies to statutory instruments367
51A.Rate of return instrument construed not to exceed the legislative power of the Legislature of this jurisdiction or the powers conferred by this Law368
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 Law368
53.Invalid Rules370
53A.Invalid rate of return instrument370
Schedule 3 — Savings and transitionals
Part 1 — General
1.Definitions372
2.Schedule subject to jurisdictional transitional arrangements in jurisdictional legislation375
Part 2 — General savings provision
3.Saving of operation of old access law and Gas Code375
Part 3 — Classification and coverage of pipelines
4.Pending applications for the classification of pipelines lapse376
5.Old scheme coverage determinations376
6.Old scheme covered transmission pipelines376
7.Old scheme covered distribution pipelines376
8.Pending coverage applications under old scheme (before NCC recommendation)377
9.Pending relevant Minister decisions in relation to coverage under old scheme377
10.Pending relevant Minister decisions in relation to coverage that are reviewed under old scheme378
11.Pending old scheme coverage determinations where no applications for review under old scheme380
12.Pending old scheme coverage determinations where applications for review under old scheme on foot380
13.Pending old scheme no‑coverage determinations where no applications for review under old scheme381
14.Pending old scheme no‑coverage determinations where applications for review under old scheme on foot382
15.Pending coverage revocation applications under old scheme (before NCC recommendation)383
16.Pending relevant Minister decisions in relation to coverage revocation under old scheme383
17.Pending relevant Minister decisions in relation to coverage revocation that are reviewed under old scheme384
18.Pending old scheme coverage revocation determinations where no applications for review under old scheme386
19.Pending old scheme coverage revocation determinations where applications for review under old scheme on foot387
20.Pending old scheme coverage non‑revocation determinations where no applications for review under old scheme388
21.Pending old scheme coverage non‑revocation determinations where applications for review under old scheme on foot388
22.Binding no‑coverage determinations390
23.Pending applications for binding no‑coverage determinations (before NCC recommendation)390
24.Pending relevant Minister decisions for binding no‑coverage determinations under old scheme390
25.Pending relevant Minister decisions in relation to binding no‑coverage determinations that are reviewed under old scheme391
Part 4 — Access arrangements
26.Current access arrangements (other than old scheme limited access arrangements)393
27.Old scheme limited access arrangements393
28.Access arrangements submitted but not approved or rejected before repeal of old scheme394
29.Access arrangement revisions submitted but not approved or rejected before repeal of old scheme395
30.Certain provisions of the Gas Code to continue to apply to current and proposed access arrangements396
31.Certain decisions relating to certain access arrangements are reviewable regulatory decisions for purposes of Chapter 8 Part 5 of the Law397
32.Limited access arrangements submitted but not approved before repeal of old scheme398
33.Extensions and expansions policies399
34.Queuing policies399
Part 5 — Price regulation exemptions
35.Old scheme price regulation exemptions399
36.Pending applications for price regulation exemptions399
37.Pending Commonwealth Minister decisions for price regulation exemptions400
Part 6 — Structural and operational separation (ring fencing)
38.Definitions401
39.Compliance with certain old scheme ring fencing requirements sufficient compliance for 6 month period402
40.Existing waivers of ring fencing obligations402
41.Additional ring fencing obligations403
Part 7 — Access disputes
42.Non‑finalised access disputes403
Part 8 — Investigations and proceedings
43.Investigations into breaches and possible breaches of the old access law or Gas Code404
44.AER may conduct investigations into breaches or possible breaches of Gas Pipelines Access Law not investigated by a relevant Regulator405
45.AER may bring proceedings in relation to breaches of old access law and Gas Code405
Part 9 — Associate contracts
46.Pending associate contract approvals that are approved after commencement day406
47.Pending associate contracts approvals that are not approved406
48.Approved associate contracts408
Part 10 — Other
49.Pending and final tender approval requests lapse408
50.Decisions approving final approval requests408
51.Rights under certain change of law provisions in agreements or deeds not to be triggered409
52.References to relevant Regulator in access arrangements409
53.Old scheme classifications and scheme participant determinations409
Part 15—Transitional provision related to AEMC rule making powers
90.AEMC rule making powers410
Part 17—Transitional provisions for rate of return instrument
95.Definitions411
96.Making first rate of return instrument if review not completed before commencement412
97.Making first rate of return instrument if review completed before commencement413
98.Application of this Law to particular decisions414
Notes about the Western Australian National Gas Access Law text
Compilation table415
Western Australia
National Gas Access (WA) Act 2009
The Parliament of Western Australia enacts as follows:
This is the National Gas Access (WA) Act 2009.
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.
(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.
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.
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: No. 42 of 2010 s. 184.]
Part 3 — Regulations for the National Gas Access (Western Australia) Law
(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.
(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.
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.
(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.
(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.
Division 1 — Gas Pipelines Access (Western Australia) Act 1998
This Division amends the Gas Pipelines Access (Western Australia) Act 1998.
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.
Delete the preamble.
In section 1 delete “Gas Pipelines Access (Western Australia) Act 1998.” and insert:
Energy Arbitration and Review Act 1998.
Delete sections 2 to 4.
In section 5 delete “bind” and all of the section before it and insert:
This Act binds
Delete sections 6 to 8.
Delete Parts 2 to 5.
Delete the heading to Part 6 and insert:
Part 6 — Review board and arbitrator
Delete Part 6 Division 1.
33.Part 6 Division 2 heading replaced
Delete the heading to Part 6 Division 2 and insert:
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
(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.
In section 57(1) delete “the Gas Pipelines Access (Western Australia) Law and”.
In section 59(4) delete “Subject to the Gas Pipelines Access (Western Australia) Law, a party” and insert:
A party
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
In section 62(1) delete “Gas” and insert:
Energy
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
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.
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.
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
In section 81 delete “under this Act”.
(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;
Delete section 87.
Delete section 88.
Delete Parts 7 and 8.
Delete Schedule 1 and its Appendix and Schedules 2 and 3.
Division 2 — Economic Regulation Authority Act 2003
This Division amends the Economic Regulation Authority Act 2003.
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
(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.
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
This Division amends the Electricity Industry Act 2004.
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
Delete section 113.
(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.
(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.
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
This Division amends the Energy Coordination Act 1994.
Delete section 11J.
In section 11M(5) delete paragraph (a) and “or” after it and insert:
(a)the National Gas Access (Western Australia) Law; or
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.
Delete section 11ZAC(4)(b) and insert:
(b)an access arrangement under the National Gas Access (Western Australia) Law.
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)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.
In section 1 after “National Gas” insert —
Access
(1)In section 2 delete the definitions of dispute resolution body, initial National Gas Rules, old access law and Regulations.
(2)In section 2 insert in alphabetical order:
dispute resolution body has the meaning given to that term in section 9(1) of the National Gas Access (WA) Act 2009;
initial National Gas Rules means —
(a)the National Gas Rules that, when the National Gas Access (WA) Act 2009 section 30 came into operation, applied under section 294; and
(b)the National Gas Access (Pipelines-Arbitration Amendment) Rules 2017
(c)the National Gas (Binding Rate of Return Instrument) Amendment Rule 2019 made by the Minister for Energy and Mining of South Australia under the National Gas (South Australia) Law section 294CA (notice of which was published in the Government Gazette of South Australia on 7 February 2019 at p. 404);
old access law means Schedule 1 to the Gas Pipelines Access (Western Australia) Act 1998 as in force from time to time before the commencement of section 30 of the National Gas Access (WA) Act 2009;
Regulations means the regulations made under Part 3 of the National Gas Access (WA) Act 2009 that apply as a law of this jurisdiction;
regulator has the meaning given to that term in section 9(1) of the National Gas Access (WA) Act 2009;
WA arbitrator has the meaning given to that term in section 9(1) of the National Gas Access (WA) Act 2009.
(3)In section 2 in the definition of AER after “Commonwealth” insert:
except if section 2A requires the term to be given a different meaning
(4)In section 2 in the definition of Gas Code delete “in force from time to time before the commencement of section 20 of the National Gas (South Australia) Act 2008 of South Australia;” and insert:
amended and applying from time to time before the commencement of section 30 of the National Gas Access (WA) Act 2009 as a law of Western Australia;
[(5)deleted]
[Clause 3 amended: Gazette 22 Dec 2017 p. 5985; 5 Apr 2019 p. 1009.]
After section 2 insert:
(1)In this Law, other than in the definition of AER in section 2, a reference to the AER is to be read as a reference to the regulator (whether the ERA or the AER) except to the extent that subsection (2) gives a different meaning.
(2)To the extent to which a reference to the AER is capable of being read as a reference to the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth acting as the disputes resolution body, the term is to be read as having or including that meaning.
2B.References to WA application Act
In this Law, a reference to the National Gas Access (Western Australia) Act 2008, if any, is to be read as a reference to the National Gas Access (WA) Act 2009.
After Chapter 1 Part 1 insert:
Part 1A — Postponement of Natural Gas Services Bulletin Board provisions
20A.Minister may fix day on which provisions apply
To the extent that a provision of this Law relates to the Natural Gas Services Bulletin Board, the provision does not apply before a day is fixed by the Minister, by an order notice of which is published in the Government Gazette, as the day on and after which provisions of this Law relating to the Natural Gas Services Bulletin Board apply.
In section 29 after “Commonwealth” insert:
or by the ERA under section 29 of the Economic Regulation Authority Act 2003
(1)In section 30 delete “Section 44AAF” and insert:
(1)Section 44AAF
(2)At the end of section 30 insert:
(2)Without limiting section 2A, that section also applies to section 44AAF as adopted by subsection (1) and, when the adopted section is read as if a reference in it to the AER were a reference to the ERA, it is further modified as follows:
(a)delete subsection (3)(c) of the adopted section and insert:
(c)the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth;
(b)delete subsection (6)(a)(i) of the adopted section and insert:
(i)an ERA member, a person assisting the ERA in the performance of its functions or a delegate of the ERA;
Delete section 30R.
[Clause 7A inserted: Gazette 5 Apr 2019 p. 1010.]
After Chapter 2 Part 1 insert:
Part 1A — Functions and powers of WA arbitrator
68A.Manner in which WA arbitrator must perform or exercise certain functions or powers
(1)The WA arbitrator must, in performing or exercising a function or power that relates to an access determination, perform or exercise that function or power in a manner that will or is likely to contribute to the achievement of the national gas objective.
(2)In addition, the WA arbitrator —
(a)must take into account the revenue and pricing principles when making an access determination relating to a rate or charge for a pipeline service; and
(b)may take into account the revenue and pricing principles when performing or exercising any other function or power that relates to an access determination, if the WA arbitrator considers it appropriate to do so.
(3)For the purposes of subsection (2)(a), a reference to a reference service in the revenue and pricing principles must be read as a reference to a pipeline service.
After section 181 insert:
181A.Providing information for certain disputes
(1)If the dispute resolution body for a dispute notified under section 181(1) is the WA arbitrator —
(a)the WA arbitrator is to inform the ERA that notification of the dispute has been received; and
(b)the WA arbitrator may request the ERA to give the WA arbitrator any information in the ERA’s possession that is relevant to the dispute.
(2)The ERA is to give the WA arbitrator the information requested, whether or not it is confidential and whether or not it came into the ERA’s possession for the purposes of resolving the dispute.
(3)If the ERA gives the WA arbitrator information that is confidential, the ERA is to identify the nature and extent of the confidentiality and the WA arbitrator is to treat the information accordingly.
(1)After section 231(1) insert:
(1A)When subsection (1) is read as if a reference in it to the AER were a reference to the ERA, the subsection is to be read as if “on behalf of the Commonwealth” had been deleted.
(2)After section 231(3) insert:
(3A)When subsection (3) is read as if a reference in it to the AER were a reference to the ERA, the subsection is to be read as if “on behalf of the Commonwealth” had been deleted.
In section 240 delete “Commonwealth.” and insert:
State of Western Australia except if the order is made on an application by the AER on behalf of the Commonwealth, in which case it is payable to the Commonwealth.
In section 290 in the definition of publish paragraph (a) delete “section 294 or 315” and insert:
section 315
Delete section 294 and insert:
294.Initial National Gas Rules for WA
(1)The National Gas Rules that apply upon section 30 of the National Gas Access (WA) Act 2009 coming into operation are as set out in the document called the National Gas Rules 2008, signed on 1 July 2008 by the Minister for Energy of South Australia, as affected, if applicable, by any amendments made by the AEMC under national gas legislation before the coming into operation of that section.
(2)Subsection (1) does not prevent the AEMC from making Rules under this Chapter that amend or revoke the rules referred to in it.
[Clause 13 amended: Gazette 22 Dec 2017 p. 5986.]
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:
Section 555A(1) and (2) of The Criminal Code apply in relation to a simple offence under this Law as if it were a simple offence under The Criminal Code.
17A.Schedule 2 clause 51 modified
In Schedule 2 clause 51(3) delete the definition of statutory instrument and insert:
statutory instrument includes the Regulations, the rate of return instrument or the Rules.
[Clause 17A inserted: Gazette 5 Apr 2019 p. 1010.]
(1)In Schedule 3 clause 1 in the definition of commencement day delete “section 20 of the new application Act” and insert:
section 30 of the National Gas Access (WA) Act 2009
(2)In Schedule 3 clause 45(3)(b) delete “Gas Pipelines Access (South Australia) Regulations 1999 were not revoked.” and insert:
Gas Pipelines Access (Western Australia) Regulations 2000 were not repealed.
(2A)In Schedule 3 clause 90:
(a)delete “section 26 of the Statutes Amendment (National Energy Laws) (Rules) Act 2018” and insert:
virtue of the National Gas Access (WA) Adoption of Amendments Order 2020 clause 3 (the adopting clause)
(b)in paragraph (a) delete “commencement of this clause; or” and insert:
coming into operation of the adopting clause; or
(c)in paragraph (b) delete “commencement of this clause,” and insert:
coming into operation of the adopting clause,
(3)In Schedule 3 clause 95 insert in alphabetical order:
commencement means the coming into operation of the National Gas Access (WA) Adoption of Amendments Order 2019 clause 3;
(4)In Schedule 3 clause 96(1)(a) delete “commencement of this clause;” and insert:
commencement;
(5)In Schedule 3 clause 97(1) delete “commencement of this clause—” and insert:
commencement—
(6)In Schedule 3 clause 98(3) delete the definitions of amended Law and commencement and insert:
amended Law means this Law as amended and modified by virtue of the National Gas Access (WA) Adoption of Amendments Order 2019 and the National Gas Access (WA) (Act Amendment) Regulations 2019.
[Clause 18 amended: Gazette 5 Apr 2019 p. 1010; SL 2020/194 r. 4.]
Notes about National Gas Access (WA) Act 2009
This is a compilation of the National Gas Access (WA) Act 2009 and includes amendments made by other written laws. For provisions that have come into operation see the compilation table.
|
Short title |
Number and year |
Assent |
Commencement |
|
National Gas Access (WA) Act 2009 |
16 of 2009 |
1 Sep 2009 |
s. 1 and 2: 1 Sep 2009 (see s. 2(a)); |
|
Petroleum and Energy Legislation Amendment Act 2010 s. 184 |
42 of 2010 |
28 Oct 2010 |
25 May 2011 (see s. 2(b) Gazette 24 May 2011 p. 1892) |
|
National Gas Access (WA) (Act Amendment) Regulations 2017 published in Gazette 22 Dec 2017 p. 5985‑6 |
r. 1 and 2: 22 Dec 2017 (see r. 2(a)); |
||
|
National Gas Access (WA) (Act Amendment) Regulations 2019 published in Gazette 5 Apr 2019 p. 1009‑10 |
r. 1 and 2: 5 Apr 2019 (see r. 2(a)); |
||
|
National Gas Access (WA) (Act Amendment) Regulations 2020 (SL 2020/194) |
r. 1 and 2: 9 Oct 2020 (see r. 2(a)); |
||
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.]
Part 1 — Citation and interpretation
This law may be cited as the National Gas Access Law.
[Section 1 modified: WA Act Sch. 1 cl. 2.]
In this Law—
15‑year no‑coverage determination means a determination of a relevant Minister under Chapter 5 Part 2;
ACCC means the Australian Competition and Consumer Commission established by section 6A of the Trade Practices Act 1974 of the Commonwealth;
access arrangement means an arrangement setting out terms and conditions about access to pipeline services provided or to be provided by means of a pipeline;
access determination means a determination of the dispute resolution body under Chapter 6 Part 3 and includes a determination varied under Part 4 of that Chapter;
AEMC means the Australian Energy Market Commission established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia;
AER means the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth except if section 2A requires the term to be given a different meaning;
AER economic regulatory decision means a decision (however described) of the AER under this Law or the Rules performing or exercising an AER economic regulatory function or power;
AER economic regulatory function or power means a function or power performed or exercised by the AER under this Law or the Rules (other than making a rate of return instrument) that relates to the economic regulation of pipeline services provided by a service provider—
(a)by means of; or
(b)in connection with,
a scheme pipeline and includes a function or power performed or exercised by the AER under this Law or the Rules (other than making a rate of return instrument) that relates to—
(c)the preparation of a service provider performance report;
(d)a ring fencing decision;
(e)an applicable access arrangement decision;
(f)an access determination (if the AER is the dispute resolution body);
Note—
The application of a rate of return instrument under this Law is an AER economic regulatory function or power. See section 30Q(2).
AER ring fencing determination means a determination of the AER under section 143(1);
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 —
(a)the National Gas Rules that, when the National Gas Access (WA) Act 2009 section 30 came into operation, applied under section 294; and
(b)the National Gas Access (Pipelines-Arbitration Amendment) Rules 2017 made by the Minister for Mineral Resources and Energy of South Australia under the National Gas (South Australia) Law section 294F (notice of which was published in the Government Gazette of South Australia on 1 August 2017 at p. 2994); and
(c)the National Gas (Binding Rate of Return Instrument) Amendment Rule 2019 made by the Minister for Energy and Mining of South Australia under the National Gas (South Australia) Law section 294CA (notice of which was published in the Government Gazette of South Australia on 7 February 2019 at p. 404);
international pipeline means a pipeline for the haulage of gas from a foreign source;
jurisdictional determination criteria, in relation to a cross boundary distribution pipeline, has the meaning given by section 14;
jurisdictional gas legislation means an Act of a participating jurisdiction (other than national gas legislation), or any instrument made or issued under or for the purposes of that Act, that regulates the haulage of gas in that jurisdiction;
light regulation determination means a determination of the NCC under Chapter 3 Part 2 Division 1;
light regulation services means pipeline services to which a light regulation determination applies;
limited access arrangement means an access arrangement that, under this Law and the Rules, is not required to make provision for price or revenue regulation but deals with the matters for which this Law and the Rules require provision to be made in an access arrangement;
limited access arrangement decision means a decision of the AER under the Rules that approves or does not approve—
(a)a limited access arrangement submitted to the AER under section 116 or 168; or
(b)revisions to a limited access arrangement submitted to the AER under section 116(3) or 168(3) or the Rules;
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;
rate of return instrument—see section 30D(2);
reclassification decision means a decision of the NCC under Chapter 3 Part 5;
reference service means a pipeline service specified by, or determined or approved by the AER under, the Rules as a reference service;
reference tariff means a tariff or charge for a reference service—
(a)specified in an applicable access arrangement approved or made under a full access arrangement decision; or
(b)determined by applying the formula or methodology contained in an applicable access arrangement approved or made under a full access arrangement decision;
Regulations means the regulations made under Part 3 of the National Gas Access (WA) Act 2009 that apply as a law of this jurisdiction;
regulator has the meaning given to that term in section 9(1) of the National Gas Access (WA) Act 2009;
regulatory information instrument means—
(a)a general regulatory information order; or
(b)a regulatory information notice;
regulatory information notice has the meaning given by section 46;
regulatory obligation or requirement has the meaning given by section 6;
regulatory payment has the meaning given by section 7;
relevant Minister means if, in a coverage recommendation, no‑coverage recommendation, classification decision under the Rules or reclassification decision, the NCC determines the pipeline is—
(a)a cross boundary transmission pipeline—the Commonwealth Minister;
(b)a transmission pipeline situated wholly within a participating jurisdiction—the designated Minister;
Note—
The term designated Minister is defined in the Act of this jurisdiction that applies this Law as a law of this jurisdiction.
(c)a distribution pipeline situated wholly within a participating jurisdiction—the Minister of the participating jurisdiction;
(d)a cross boundary distribution pipeline—the Minister of the participating jurisdiction determined by the NCC in the recommendation as being the participating jurisdiction with which the cross boundary distribution pipeline is most closely connected;
relevant Regulator has the same meaning as in section 2 of the old access law;
revenue and pricing principles means the principles set out in section 24;
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: WA Act Sch. 1 cl. 3; amended: see SA Act No. 30 of 2009 s. 6 and WA Gazette 18 Dec 2009 p. 5167; SA Act No. 79 of 2013 s. 19 and WA Gazette 14 Mar 2014 p. 632; SA Act No. 33 of 2018 and WA Gazette 5 Apr 2019 p. 1007‑8.]
(1)In this Law, other than in the definition of AER in section 2, a reference to the AER is to be read as a reference to the regulator (whether the ERA or the AER) except to the extent that subsection (2) gives a different meaning.
(2)To the extent to which a reference to the AER is capable of being read as a reference to the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth acting as the disputes resolution body, the term is to be read as having or including that meaning.
[Section 2A inserted: WA Act Sch. 1 cl. 4.]
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: 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 |
(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).
(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.
The pipeline coverage criteria are—
(a)that access (or increased access) to pipeline services provided by means of the pipeline would promote a material increase in competition in at least 1 market (whether or not in Australia), other than the market for the pipeline services provided by means of the pipeline;
(b)that it would be uneconomic for anyone to develop another pipeline to provide the pipeline services provided by means of the pipeline;
(c)that access (or increased access) to the pipeline services provided by means of the pipeline can be provided without undue risk to human health or safety;
(d)that access (or increased access) to the pipeline services provided by means of the pipeline would not be contrary to the public interest.
The form of regulation factors are—
(a)the presence and extent of any barriers to entry in a market for pipeline services;
(b)the presence and extent of any network externalities (that is, interdependencies) between a natural gas service provided by a service provider and any other natural gas service provided by the service provider;
(c)the presence and extent of any network externalities (that is, interdependencies) between a natural gas service provided by a service provider and any other service provided by the service provider in any other market;
(d)the extent to which any market power possessed by a service provider is, or is likely to be, mitigated by any countervailing market power possessed by a user or prospective user;
(e)the presence and extent of any substitute, and the elasticity of demand, in a market for a pipeline service in which a service provider provides that service;
(f)the presence and extent of any substitute for, and the elasticity of demand in a market for, electricity or gas (as the case may be);
(g)the extent to which there is information available to a prospective user or user, and whether that information is adequate, to enable the prospective user or user to negotiate on an informed basis with a service provider for the provision of a pipeline service to them by the service provider.
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.
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: 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: WA Act Sch. 1 cl. 5.]
Part 2 — Participating jurisdictions
21.Participating jurisdictions
The State of South Australia, the Commonwealth, each of the States of New South Wales, Victoria, Queensland, Western Australia and Tasmania, and the Australian Capital Territory and the Northern Territory are participating jurisdictions for the purposes of this Law.
22.Ministers of participating jurisdictions
The Ministers of the participating jurisdictions are—
(a)the Minister of the Crown in right of South Australia administering Part 2 of the National Gas (South Australia) Act 2008 of South Australia; and
(b)the Minister of the Crown in right of Western Australia administering the National Gas Access (Western Australia) Act 2008 of Western Australia; and
(c)the Minister of the Crown in right of the Commonwealth administering the Australian Energy Market Act 2004 of the Commonwealth; and
(d)the Ministers of the Crown in right of the other participating jurisdictions administering the laws of those jurisdictions that substantially correspond to Part 2 of the National Gas (South Australia) Act 2008 of South Australia.
Part 3 — National gas objective and principles
Division 1 — National gas objective
The objective of this Law is to promote efficient investment in, and efficient operation and use of, natural gas services for the long term interests of consumers of natural gas with respect to price, quality, safety, reliability and security of supply of natural gas.
Division 2 — Revenue and pricing principles
24.Revenue and pricing principles
(1)The revenue and pricing principles are the principles set out in subsections (2) to (7).
(2)A service provider should be provided with a reasonable opportunity to recover at least the efficient costs the service provider incurs in—
(a)providing reference services; and
(b)complying with a regulatory obligation or requirement or making a regulatory payment.
(3)A service provider should be provided with effective incentives in order to promote economic efficiency with respect to reference services the service provider provides. The economic efficiency that should be promoted includes—
(a)efficient investment in, or in connection with, a pipeline with which the service provider provides reference services; and
(b)the efficient provision of pipeline services; and
(c)the efficient use of the pipeline.
(4)Regard should be had to the capital base with respect to a pipeline adopted—
(a)in any previous—
(i)full access arrangement decision; or
(ii)decision of a relevant Regulator under section 2 of the Gas Code;
(b)in the Rules.
(5)A reference tariff should allow for a return commensurate with the regulatory and commercial risks involved in providing the reference service to which that tariff relates.
(6)Regard should be had to the economic costs and risks of the potential for under and over investment by a service provider in a pipeline with which the service provider provides pipeline services.
(7)Regard should be had to the economic costs and risks of the potential for under and over utilisation of a pipeline with which a service provider provides pipeline services.
Division 3 — MCE policy principles
25.MCE statements of policy principles
(1)Subject to this section, the MCE may issue a statement of policy principles in relation to any matters that are relevant to the exercise and performance by the AEMC of its functions and powers in—
(a)making a Rule; or
(b)conducting a review under section 83.
(2)Before issuing a statement of policy principles, the MCE must be satisfied that the statement is consistent with the national gas objective.
(3)As soon as practicable after issuing a statement of policy principles, the MCE must give a copy of the statement to the AEMC.
(4)The AEMC must publish the statement in the South Australian Government Gazette and on its website as soon as practicable after it is given a copy of the statement.
Part 4 — Operation and effect of National Gas Rules
26.National Gas Rules to have force of law
The National Gas Rules have the force of law in this jurisdiction.
Chapter 2 — Functions and powers of gas market regulatory entities
Part 1 — Functions and powers of the Australian Energy Regulator
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
(da)to make a rate of return instrument; and
(e)AER economic regulatory functions or powers; and
(f)to prepare and publish reports on the financial and operational performance of service providers in providing pipeline services by means of covered pipelines; and
(g)to approve compliance programs of service providers relating to compliance by service providers with this Law or the Rules; and
(h)any other functions and powers conferred on it under this Law or the Rules.
(2)The AER has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
[Section 27 amended: see SA Act No. 33 of 2018 s. 14 and WA Gazette 5 Apr 2019 p. 1007.]
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.]
Any delegation by the AER under section 44AAH of the Trade Practices Act 1974 of the Commonwealth or by the ERA under section 29 of the Economic Regulation Authority Act 2003 extends to, and has effect for the purposes of, this Law, the Regulations and the Rules.
[Section 29 modified: WA Act Sch. 1 cl. 6.]
(1)Section 44AAF of the Trade Practices Act 1974 of the Commonwealth has effect for the purposes of this Law, the Regulations and the Rules as if it formed part of this Law.
(2)Without limiting section 2A, that section also applies to section 44AAF as adopted by subsection (1) and, when the adopted section is read as if a reference in it to the AER were a reference to the ERA, it is further modified as follows:
(a)delete subsection (3)(c) of the adopted section and insert:
(c)the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth;
(b)delete subsection (6)(a)(i) of the adopted section and insert:
(i)an ERA member, a person assisting the ERA in the performance of its functions or a delegate of the ERA;
Note—
See also Chapter 10 Part 2 Division 1.
[Section 30 modified: WA Act Sch. 1 cl. 7.]
Division 1A—Rate of return instrument
[Heading inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
[Heading inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
In this Division—
consumer reference group, for making a rate of return instrument, see section 30H(1)(a);
explanatory information, for a rate of return instrument, means information about the content of the instrument, including (but not limited to) information explaining—
(a)the reasons for the rate of return on capital or the value of imputation credits under the instrument; and
(b)how the stated value, or the way to calculate the rate or value, was decided; and
(c)if the instrument replaces another instrument—
(i)the differences (if any) between the instrument and the replaced instrument; and
(ii)the reasons for any differences; and‚
(d)why the AER is satisfied the instrument will, or is most likely to, contribute to the achievement of the national gas objective to the greatest degree; and
(e)how the AER had regard to the following in making the instrument:
(i)the revenue and pricing principles;
(ii)the matters mentioned in section 30G;
(iii)estimation methods, financial models, market data and other evidence relevant to making the instrument;
(iv)prevailing conditions in the market for equity funds;
(v)the interrelationships between financial parameters used, or to be used, in relation to deciding the rate or value.
[Section 30A inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30B.Rate of return instrument has force of law
(1)A rate of return instrument has the force of law in this jurisdiction.
(2)An Act of this jurisdiction regulating the making of subordinate legislation does not apply to a rate of return instrument.
[Section 30B inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30C.Rate of return instrument is binding on AER and covered pipeline service providers
A rate of return instrument is binding on—
(a)the AER in relation to the performance or exercise of an AER economic regulatory function or power; and
(b)each covered pipeline service provider in relation to a matter relevant to the performance or exercise of an AER economic regulatory function or power.
[Section 30C inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
Subdivision 2—Requirement to make rate of return instrument
[Heading inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30D.AER to make rate of return instrument
(1)This section applies if a rate of return on capital or the value of imputation credits is required for performing or exercising an AER economic regulatory function or power.
(2)The AER must make an instrument (a rate of return instrument) stating—
(a)for a rate of return on capital—the way to calculate the rate; and
(b)for the value of imputation credits—the value or the way to calculate the value.
(3)The AER may make an instrument only if satisfied the instrument will, or is most likely to, contribute to the achievement of the national gas objective to the greatest degree.
(4)Subject to subsection (3), the way to calculate a rate of return on capital must include a weighted average of an allowed return on equity and an allowed return on debt.
(5)In making an instrument, the AER must have regard to—
(a)the revenue and pricing principles; and
(b)other information the AER considers appropriate.
[Section 30D inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30E.Content of rate of return instrument
(1)If a rate of return instrument states the value of imputation credits, the instrument must state a single value to apply in relation to all covered pipeline service providers.
(2)If a rate of return instrument states a way to calculate the rate of return on capital or the value of imputation credits, the instrument must—
(a)provide for the same methodology to apply in relation to all covered pipeline service providers in calculating the rate or value; and
(b)provide for the methodology to apply automatically without the exercise of any discretion by the AER.
Example for paragraph (b)—
The instrument can not include different methodologies or a band of values from which the AER could choose in applying the instrument.
(3)Subject to subsections (1) and (2), the instrument may include other matters the AER considers appropriate.
Example—
Matters to help a covered pipeline service provider calculate a rate of return or the value of imputation credits.
[Section 30E inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
Subdivision 3—Consultation requirements
[Heading inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30F.Process for making rate of return instrument
Subject to this Division, the AER may make a rate of return instrument in the way it considers appropriate.
[Section 30F inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30G.Other matters AER must have regard to in making instrument
In making a rate of return instrument, the AER must also have regard to the following—
(a)advice, recommendations or submissions given by a consumer reference group;
(b)submissions made, and the report published, under section 30H;
(c)submissions made under section 30J;
(d)the report given by the independent panel under section 30K.
[Section 30G inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30H.Requirements before publishing draft instrument
(1)Before publishing a draft rate of return instrument under this Subdivision, the AER must—
(a)establish a reference group to help the AER implement an effective consumer consultation process for making the proposed instrument (a consumer reference group); and
(b)publish a notice on its website—
(i)inviting persons to make a written submission to the AER about the proposed instrument; and
(ii)stating the period, not less than 28 days, within which a submission must be made; and
(c)seek concurrent expert opinions or evidence about the proposed instrument.
(2)A person may make a submission after the stated period only with the written approval of the AER.
(3)Subject to subsections (4) and (5), the AER may seek the expert opinions or evidence in the way it considers appropriate.
Example—
The AER might convene a conference of experts to identify key issues, and areas of dispute and agreement among the experts, about the content of the proposed instrument.
(4)The AER must call for nominations of eligible experts but may seek the expert opinions or evidence from any eligible expert.
(5)If practicable, the AER must seek the expert opinions or evidence from at least 3 eligible experts.
(6)The AER must publish on its website—
(a)submissions made under this section; and
(b)a report on the outcomes of seeking the expert opinions or evidence.
(7)In this section—
eligible expert means a person with qualifications or experience in a field the AER considers relevant to making a rate of return instrument.
Examples of relevant fields—
Finance, economics, law, consumer affairs, institutional investment.
[Section 30H inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
(1)A consumer reference group for making a rate of return instrument—
(a)is to consist of the members appointed by the AER; and
(b)may carry out its activities, including giving advice or recommendations to the AER about the instrument, in the way it considers appropriate.
(2)Without limiting subsection (1)(b), the consumer reference group may—
(a)consult with consumers of natural gas; and
(b)facilitate consumer engagement in the process for making the instrument; and
(c)make written submissions to the AER about the content of the instrument and the process for making it.
(3)The AER must publish on its website any written advice, recommendations or submissions given to it by the consumer reference group.
[Section 30I inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30J.Publication of draft instrument and other information
(1)The AER must, at least 6 months before making a rate of return instrument, publish on its website—
(a)a draft of the proposed instrument and the explanatory information for the instrument; and
(b)a notice—
(i)inviting persons to make a written submission to the AER about the proposed instrument; and
(ii)stating the period, not less than 28 days, within which a submission must be made.
(2)A person may make a submission after the stated period only with the written approval of the AER.
(3)The AER must publish submissions made under this section on its website.
[Section 30J inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30K.Report about draft instrument by independent panel
(1)The AER must, as soon as practicable after publishing the draft instrument, establish an independent panel to give the AER a written report about the instrument.
(2)The panel—
(a)may carry out its activities, including giving the report, in the way it considers appropriate; but
(b)must seek to give the report by consensus.
(3)The panel must—
(a)consist of at least 3 members, appointed by the AER, who have qualifications or experience in a field the AER considers relevant to making a rate of return instrument; and
Examples of relevant fields—
Finance, economics, law, consumer affairs, institutional investment.
(b)give the report to the AER before the AER makes the instrument.
(4)The AER must take reasonable steps to minimise and manage any conflicts of interest a panel member may have in relation to making the instrument.
(5)The report must—
(a)include the panel’s assessment of the evidence and reasons supporting the rate of return on capital or the value of imputation credits under the instrument; and
(b)state whether the report is given by consensus.
(6)The AER must publish the report on its website.
[Section 30K inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30L.Publication of explanatory information
The AER must publish explanatory information for a rate of return instrument on its website when the instrument is published under section 30N.
[Section 30L inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30M.Failure to comply does not affect validity
Failure to comply with this Subdivision does not invalidate or otherwise affect a rate of return instrument.
[Section 30M inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
Subdivision 4—Publication, review and other matters
[Heading inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30N.Publication of rate of return instrument
After making a rate of return instrument, the AER must publish the instrument on its website.
Note—
See section 30L for the requirement to publish explanatory information for the instrument.
[Section 30N inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30O.Commencement and duration of instrument
A rate of return instrument—
(a)commences on the day after it is published on the AER’s website; and
(b)remains in force until the end of the day it is replaced under section 30P.
[Section 30O inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30P.Review and replacement of instrument
(1)The AER must—
(a)review each rate of return instrument; and
(b)make a new rate of return instrument under this Division to replace the reviewed instrument.
(2)The AER must replace the reviewed instrument by publishing the new instrument on its website on the day that is—
(a)the fourth anniversary of the day the reviewed instrument was published; or
(b)if the day mentioned in paragraph (a) is not a business day—the first business day after that day.
[Section 30P inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
(1)A rate of return instrument—
(a)applies for the purposes of an AER economic regulatory decision made after the commencement of the instrument; and
(b)does not affect an AER economic regulatory decision made before the commencement of the instrument.
(2)To remove any doubt, it is declared that the application of the instrument under this Law, including, for example, in making a full access arrangement decision, is an AER economic regulatory function or power.
[Section 30Q inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
[30R.Section 30R inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007; deleted: WA Act Sch. 1 cl. 7A.]
Subdivision 5—Confidentiality of information
[Heading inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
(1)If a person wishes to give information to the AER for the purposes of this Division in confidence—
(a)the person must give the AER written notice that the person claims the information is confidential; and
(b)give reasons to support the claim, including—
(i)information about the detriment that might be caused to the person if the information were disclosed by the AER; and
(ii)information that—
(A)is reasonably within the person’s knowledge and capacity to give; and
(B)may be relevant to the AER’s consideration under section 329 about whether the public benefit in disclosing the information outweighs the detriment.
(2)In giving reasons to support a claim under subsection (1) about information received from another person (a third party), a person may include information that—
(a)is reasonably within the person’s knowledge and capacity to give; and
(b)is about the detriment that might be caused to the third party if the information were disclosed by the AER; and
(c)may be relevant to the AER’s consideration under section 329 about whether the public benefit in disclosing the information outweighs the detriment.
(3)In acting under subsection (1), a person must specifically identify the information in relation to which the claim is made.
(4)Information given to the AER for the purposes of this Division is not to be regarded as being given in confidence, or to be confidential in any way, unless the information is subject to an express claim of confidentiality made under this section.
[Section 30S inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
30T.Disclosure of information given in confidence
(1)Chapter 10 Part 2 Division 1 applies in relation to publishing information given to the AER in confidence under this Division.
(2)In this section—
information includes advice, recommendations, submissions and reports.
[Section 30T inserted: see SA Act No. 33 of 2018 s. 15 and WA Gazette 5 Apr 2019 p. 1007.]
In this Division—
authorised person means a person authorised under section 32;
relevant provision means a provision of this Law, the Regulations or the Rules.
(1)The AER may, in writing, authorise a person that the AER considers is suitably qualified or trained to be an authorised person for the purposes of this Division.
(2)An authorised person must comply with any direction of the AER in exercising powers or functions as an authorised person.
(1)The AER must issue an identity card to an authorised person.
(2)The identity card must contain the name, a recent photograph and the signature of the authorised person.
(3)An authorised person must carry the identity card at all times when exercising powers or performing functions as an authorised person.
(4)An authorised person must produce his or her identity card for inspection—
(a)before exercising a power as an authorised person; or
(b)at any time during the exercise of a power as an authorised person, if asked to do so.
If a person to whom an identity card has been issued ceases to be an authorised person, the person must return the identity card to the AER as soon as practicable.
Maximum penalty: $500
(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.
(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
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 or a rate of return instrument; and
(c)the AER considers that, having regard to the time within which it must make that AER economic regulatory decision or a rate of return instrument, the time within which the AER requires the information is of the essence.
(4)A notice under subsection (1) must—
(a)invite the scheme pipeline service provider, or the related provider, to make written representations to the AER as to whether the AER should serve the regulatory information notice on them; and
(b)specify the period within which the scheme pipeline service provider, or the related provider, may make the representations.
(5)The period that must be specified in accordance with subsection (4) must be—
(a)in the case of an urgent notice to be served—a period of not less than 5 business days and not more than 10 business days calculated from the date of the notice under subsection (1);
(b)in all other cases—a period of at least 20 business days calculated from the date of the notice under subsection (1).
(6)The AER must consider the written representations made in accordance with a notice under subsection (1) before making its decision in accordance with this Division to serve the regulatory information notice.
[Section 52 amended: see SA Act No. 33 of 2018 s. 16 and WA Gazette 5 Apr 2019 p. 1007.]
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 to make a rate of return instrument; or
(ii)requires a related provider to provide information to the AER that is relevant to the making of an AER economic regulatory decision relating to a scheme pipeline service provider or the making of a rate of return instrument; and
(b)the scheme pipeline service provider or related provider—
(i)does not provide the information to the AER in accordance with the applicable regulatory information instrument; or
(ii)provides information that is insufficient (when compared to what was requested under the applicable regulatory information instrument).
(2)Without limiting sections 56 and 57 and despite anything to the contrary in this Law or the Rules, the AER—
(a)may make the AER economic regulatory decision or the rate of return instrument on the basis of the information the AER has at the time it makes that decision or instrument; and
(b)in making that decision or instrument, may make reasonable assumptions (including assumptions adverse to the interests of the scheme pipeline service provider) in respect of the matters the information required under the regulatory information instrument would have addressed had that information been provided as required.
[Section 59 amended: see SA Act No. 33 of 2018 s. 17 and WA Gazette 5 Apr 2019 p. 1007.]
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.
(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 1A — Functions and powers of WA arbitrator
[Heading inserted: 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: WA Act Sch. 1 cl. 8.]
Part 2 — Functions and powers of the Australian Energy Market Commission
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.
Any delegation by the AEMC under section 20 of the Australian Energy Market Commission Establishment Act 2004 of South Australia extends to, and has effect for the purposes of, this Law, the Regulations and the Rules.
Section 24 of the Australian Energy Market Commission Establishment Act 2004 of South Australia has effect for the purposes of this Law, the Regulations and the Rules as if it formed part of this Law.
Note—
See also Chapter 10 Part 2 Division 2.
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
(1)The MCE may give a written direction to the AEMC that the AEMC conduct a review into—
(a)any matter relating to a market for gas (including services provided in a market for gas); or
(b)any matter relating to access to pipelines or to pipeline services provided by means of pipelines; or
(c)the operation and effectiveness of the Rules; or
(d)any matter relating to the Rules; or
(e)the effectiveness of competition in a market for gas for the purpose of giving advice about whether to retain, remove or reintroduce price controls on prices for retail gas services.
(2)A direction given to the AEMC under this section is binding on the AEMC and must be complied with despite anything to the contrary in the Rules.
(3)A direction given under this section must be published in the South Australian Government Gazette.
(4)The AEMC must cause a direction given under this section to be published on its website.
(1)The terms of reference of a MCE directed review will be as specified in the direction given by the MCE.
Example—
The terms of reference may require a MCE directed review to be conducted—
(a)about a specific matter within a specified time; or
(b)whenever a specified event occurs; or
(c)on an annual basis.
(2)Without limiting subsection (1), the MCE may in its direction to the AEMC do 1 or more of the following:
(a)require the AEMC to give a report on a MCE directed review to the MCE within a specified period;
(b)require the AEMC to make the report on a MCE directed review publicly available or available to specified persons or bodies;
(c)require the AEMC to make a draft report publicly available or available to specified persons or bodies during a MCE directed review;
(d)require the AEMC to consider specified matters in the conduct of a MCE directed review;
(e)require the AEMC to have specified objectives in the conduct of a MCE directed review which need not be limited by the national gas objective;
(f)require the AEMC to assess a particular matter in relation to services provided in a market for gas against specified criteria or a specified methodology;
(g)require the AEMC—
(i)to assess a particular matter in relation to services provided in a market for gas; and
(ii)to develop appropriate and relevant criteria, or an appropriate and relevant methodology, for the purpose of the required assessment;
(h)give the AEMC other specific directions in respect of the conduct of a MCE directed review.
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.
(1)The AEMC may conduct a review into—
(a)the operation and effectiveness of the Rules; or
(b)any matter relating to the Rules.
(2)A review—
(a)may be conducted in such manner as the AEMC considers appropriate; and
(b)may (but need not) involve public hearings.
(3)During the course of a review, the AEMC may—
(a)consult with any person or body that it considers appropriate;
(b)establish working groups to assist it in relation to any aspect, or any matter or thing that is the subject of, the review;
(c)commission reports by other persons on its behalf on any aspect, or matter or thing that is the subject of, the review;
(d)publish discussion papers or draft reports.
(4)At the completion of a review, the AEMC must—
(a)give a copy of the report to the MCE; and
(b)publish a report or a version of a report from which confidential information has been omitted in accordance with section 331.
Division 6 — Miscellaneous matters
83A.Special information and transparency requirements relating to non‑scheme pipelines
(1)In this section—
non-scheme pipeline means—
(a)a transmission pipeline that is not a scheme pipeline; and
(b)a distribution pipeline that is not a scheme pipeline.
(2)Without limiting any other provision, the Rules may provide for such things as—
(a)the collection, disclosure, verification, management and publication of information in relation to services that may be provided by a non‑scheme pipeline; and
(b)without limiting paragraph (a), requirements about the information that must be provided by service providers in relation to access (or potential access) to services provided by means of any non‑scheme pipeline, including information about—
(i)the terms and conditions on which the service provider is prepared to make a non‑scheme pipeline available for use by others; and
(ii)the procedures that the service provider will apply in determining a proposal for access to a non‑scheme pipeline; and
(iii)relevant prices, costs and methodologies associated with gaining access to (and using) a non‑scheme pipeline and relevant or related services; and
(iv)access contracts and arrangements used (or required to be used) by the service provider; and
(c)without limiting paragraphs (a) and (b), information to be provided by a service provider in response to a request for access to services provided by means of a non‑scheme pipeline; and
(d)requirements to ensure that information is accurate and complete; and
(e)requirements that relate to any matter that is contemplated by Chapter 4 Part 2 (as if a reference to a covered pipeline service provider in that Part were a reference to a service provider in relation to a non-scheme pipeline and subject to any modifications made by the Rules and subject to such other necessary alterations and modifications so as to apply those requirements in relation to non‑scheme pipelines); and
(f)the imposition or recovery of costs associated with any matter referred to in a preceding paragraph or otherwise associated with facilitating access (or potential access) to services provided by means of a non‑scheme pipeline.
(3)Nothing in subsection (2) limits any power to grant an exemption from complying with a provision, or part of a provision, of the Rules.
(4)A reference in subsection (2) with respect to gaining access (or potential access) to services provided by means of a non‑scheme pipeline includes a reference to services that will require an extension to, or expansion of the capacity of, a non‑scheme pipeline.
[Section 83A inserted: see SA Act No. 23 of 2017 s. 4 and WA Gazette 22 Dec 2017 p. 5984.]
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.
(1)The AEMC may charge a fee specified, or a fee calculated in accordance with a formula or methodology specified, in the Regulations for services provided by it in performing or exercising any of its functions or powers under this Law, the Regulations or the Rules.
(2)The fee must not be such as to amount to taxation.
86.Immunity from personal liability of AEMC officials
(1)No personal liability attaches to an AEMC official for an act or omission in good faith in the performance or exercise, or purported performance or exercise of a function or power under this Law, the Regulations or the Rules.
(2)A liability that would, but for subsection (1), lie against an AEMC official lies instead against the AEMC.
(3)In this section—
AEMC official means—
(a)a member of the AEMC;
(b)the chief executive of the AEMC;
(c)a member of staff appointed by the AEMC.
Part 3 — Functions and powers of Ministers of participating jurisdictions
87.Functions and powers of Minister of this participating jurisdiction under this Law
(1)The Minister of this participating jurisdiction has the functions and powers conferred on him or her under this Law, the Regulations or the Rules.
(2)The Minister of this participating jurisdiction has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.
(3)In this section—
Minister of this participating jurisdiction means the Minister that administers the Act of this jurisdiction that applies this Law as a law of this jurisdiction.
88.Functions and powers of Commonwealth Minister under this Law
(1)The Commonwealth Minister has the functions and powers conferred on him or her under this Law, the Regulations or the Rules.
(2)The Commonwealth Minister has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.
Part 4 — Functions and powers of the NCC
89.Functions and powers of NCC under this Law
(1)The NCC has the functions and powers conferred on it under this Law, the Regulations or the Rules.
(2)The NCC has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
(1)The NCC must take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in, or in connection with, the performance of its functions or the exercise of its powers under this Law, the Regulations or the Rules.
(2)For the purposes of subsection (1), the disclosure of information as required or permitted by this Law, a law of the Commonwealth, a State or Territory is taken to be authorised use and disclosure of the information.
(3)Disclosing information to 1 of the following is authorised use and disclosure of the information:
(a)the ACCC;
(b)the AER;
(c)the ERA;
(d)the AEMC;
(e)any staff or consultant assisting a body mentioned in paragraph (a) to (d) in performing its functions or exercising its powers;
(f)any other person or body prescribed by the Regulations for the purpose of this paragraph.
(4)A person or body to whom information is disclosed under subsection (3) may use the information for any purpose connected with the performance of the functions, or the exercise of the powers, of the person or body.
(5)The NCC may impose conditions to be complied with in relation to information disclosed under subsection (3).
(6)For the purposes of subsection (1), the use or disclosure of information by a person for the purposes of performing the person’s functions, or exercising the person’s powers, as—
(a)a Councillor or a person referred to in section 29M of the Trade Practices Act 1974 of the Commonwealth; or
(b)a person who is authorised to perform or exercise a function or power of, or on behalf of, the NCC,
is taken to be authorised use and disclosure of the information.
(7)Regulations made for the purposes of this section may specify uses of information and disclosures of information that are authorised uses and authorised disclosures for the purposes of this section.
(8)Nothing in any of the above subsections limits—
(a)anything else in any of those subsections; or
(b)what may otherwise constitute, for the purposes of subsection (1), authorised use or disclosure of information.
(9)In this section—
Councillor has the same meaning as in the Trade Practices Act 1974 of the Commonwealth.
Note—
See also Chapter 10 Part 2 Division 2.
Part 5 — Functions and powers of Tribunal
91.Functions and powers of Tribunal under this Law
(1)The Tribunal has the functions and powers conferred on it under Chapter 8 Part 5 and any Regulations made for the purposes of that Division.
(2)The Tribunal has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
Chapter 3 — Coverage and classification of pipelines
Part 1 — Coverage of pipelines
Division 1 — Coverage determinations
92.Application for recommendation that a pipeline be a covered pipeline
(1)Any person may apply for a determination that a pipeline be a covered pipeline (a coverage determination).
(2)An application for a coverage determination—
(a)is to be made to the NCC in accordance with the Rules; and
(b)must contain the information required by the Rules; and
(c)must be accompanied by the fee prescribed by the Regulations (if any).
93.Application to be dealt with in accordance with the Rules
Subject to section 94, on receiving an application under section 92 the NCC must deal with it in accordance with the Rules.
94.NCC may defer consideration of application in certain cases
(1)This section applies if an application under section 92 is made in relation to a proposed pipeline after—
(a)an application has been made to the AER under the Rules for the approval, by the AER, of the tender process for the construction and operation of the proposed pipeline as a competitive tender process; or
(b)a tender approval decision has been made in respect of the tender process for the construction and operation of the proposed pipeline.
(2)The NCC may defer consideration of whether to make a recommendation in respect of the application until—
(a)the application for the approval, by the AER, of the tender process for the construction and operation of the proposed pipeline as a competitive tender process has been rejected by the AER under the Rules; or
(b)the tender approval decision—
(i)has been revoked under the Rules; or
(ii)has lapsed as provided under the Rules.
95.NCC coverage recommendation
(1)Subject to sections 94 and 96, the NCC must recommend to the relevant Minister that the pipeline the subject of the application—
(a)be a covered pipeline; or
(b)not be a covered pipeline.
Note—
See also Chapter 3 Part 2 Division 1 Subdivision 1.
(2)A recommendation under this section must—
(a)be made in accordance with this Law and the Rules; and
(b)be made within the time specified by the Rules; and
(c)contain the information required by the Rules; and
(d)be given to the persons specified by the Rules; and
(e)be made publicly available in accordance with the Rules.
(3)A recommendation under this section may recommend an outcome different from the outcome sought in the application under section 92.
Example—