Economic Regulation Authority (National Gas Access Funding) Regulations 2009

These regulations establish how the Economic Regulation Authority (Authority) in Western Australia recovers the costs it incurs in performing functions under the national gas scheme laws, by creating mechanisms for standing charges, specific charges, document fees and meeting admission fees. They provide the charging triggers, who is liable, the timing and notice requirements, interest on late payment, and the Authority’s recovery and reporting powers. The regulations commence in two stages: regs 1 and 2 on gazettal, and the remainder when Part 2 of the National Gas Access (WA) Act 2009 commences, per regulation 2.

Mechanically, the instrument does the following, as set out in the text. First, it imposes a quarterly standing charge payable by the service provider for each pipeline listed in Schedule 1 that is a covered pipeline during the quarter (regulation 4(1)-(2)). The standing charge is derived from the Authority’s core function costs for the quarter and the Schedule 1 percentage for the pipeline, using a days‑pro rata approach defined by variables in regulation 4(3) and Schedule 1’s percentages. Second, it authorises the Authority to levy specific charges on persons listed in Schedule 2 for the costs directly attributable to discrete functions described in that Schedule, and on persons in Schedule 3 for certain transitioned functions (regulation 6 and regulation 13). Third, it permits the Authority to charge fees for copies of documents prepared by the Authority, subject to a cap of $100, and to charge fees for admission to public consultation meetings held under the National Gas Rules rule 6, with limited exemptions (regulations 7 and 8).

The regulations set a 30 day payment window from the date of the Authority’s notice of assessment for both standing and specific charges, unless the Authority allows a further period (regulations 5(2) and 6(6); definition of allowed period in regulation 3(1)). Interest on unpaid amounts accrues at a prescribed rate calculated daily (regulations 5(3), 6(7) and definition of prescribed rate in regulation 3(1)). The Authority may recover unpaid sums, including interest, as a debt in court, and a chairman’s certificate is admissible evidence of liability without proof of appointment or signature authenticity (regulation 9). Lastly, the Authority’s annual report must disclose totals for standing charges, specific charges and fees under these regulations (regulation 10). The regulations repeal two prior instruments (regulation 11) and include transitional provisions dealing with the first NGL period and functions transitioned from the earlier Gas Pipelines Access regime (regs 12 and 13, Schedule 3).

The regulations build on a small set of defined concepts which determine scope and calculation. Core function costs are costs incurred by the Authority in a quarter in connection with performing functions under the national gas scheme laws that cannot be recovered by fees or specific charges under these regulations (regulation 3(1)). The National Gas Law and National Gas Rules are incorporated by reference; a term used in the National Gas Law retains its meaning here unless the regulations show a contrary intention (regulation 3(2)). Quarter is defined as the standard financial quarter and, for transitional purposes, may include the first NGL period (regulation 3(1) and 12(2)).

Standing charges are recurring, quarter‑based charges for each pipeline listed in Schedule 1 when that pipeline is a covered pipeline during any part of the quarter; they are payable by the person who is the service provider during that quarter (regulation 4(1)-(2)). The standing charge calculation depends on five variables set out in regulation 4(3): S (the standing charge amount), C (core function costs for the quarter), P (Schedule 1 percentage for the pipeline), DQ (number of days in the quarter) and DP (number of days in the quarter during which the pipeline is listed and the person is the service provider). Schedule 1 lists four pipelines and a percentage for each; those percentages sum to 100 per the Schedule.

Specific charges are one‑off or function‑linked charges that the Authority may require a person to pay in respect of particular functions listed in Schedule 2 and, for certain transitioned functions from the previous regime, in Schedule 3 (regulation 6(1), 13(3)). The amount of a specific charge must be equivalent to costs that have been incurred by the Authority and are directly attributable to the relevant function or to activities necessary or convenient for it, and the regulations identify types of recoverable costs including consultant and contractor costs, photocopying, mailing, publishing, advertising, and costs associated with public consultation (regulation 6(3)-(4)). The Authority must provide an itemised account on request (regulation 6(5)).

Document fees and meeting admission fees are discretionary charges the Authority may impose on persons who request documents prepared by the Authority in performing national gas scheme functions, or who wish to attend public consultation meetings under National Gas Rules rule 6. The document fee is capped at $100 and the Coordinator and Director are exempt from document fees; the Coordinator, Director and their representatives are exempt from meeting admission fees (regulations 7 and 8).

The instrument creates liabilities and administrative interactions for several identifiable cohorts. Primary payers are service providers of pipelines specified in Schedule 1 where those pipelines are covered pipelines during a quarter; those service providers are liable for the standing charge for that pipeline for that quarter (regulation 4(1)-(2), Schedule 1). The standing charge attaches to whoever is the service provider during the relevant days in the quarter; the DP variable counts days in the quarter during which the person is the service provider (regulation 4(3)).

Schedule 2 lists a wider set of persons who may be required to pay specific charges, linked to narrowly described functions. These include persons who request an application under NGL s. 92, service providers in relation to light regulation determinations or reporting obligations, applicants for approval of competitive tender processes and their proponents, service providers submitting full or limited access arrangements or variations, persons named in regulatory information notices, persons given initial disclosure notices, service providers named in ring fencing determinations or applying for ring fencing exemptions, applicants seeking greenfields pipeline incentive revocations or price regulation exemption revocations, and service providers in respect of which the Authority prepares performance reports, among others (Schedule 2). Schedule 3 enumerates functions transitioned from the prior Gas Pipelines Access regime that may attract specific charges after the transition day (regulation 13 and Schedule 3).

There are express exemptions for the Coordinator of Energy and the Director of Energy Safety in two contexts. The Authority cannot require the Coordinator or the Director to pay a document fee under regulation 7(3). The Authority cannot require the Coordinator, the Director, or any representative of either to pay a meeting admission fee under regulation 8(3). The Coordinator and Director are defined by reference to the Energy Coordination Act 1994 sections 4 and 5 respectively (regulation 3(1)).

Other affected parties include applicants, proponents, consultants and contractors engaged with the Authority for functions described in Schedule 2; those third parties’ costs may be recovered from the person to whom the specific charge is issued, because regulation 6(4)(a) expressly includes costs of consultants or contractors including accommodation, travel and equipment costs. Persons served with notices under regulation 6 must pay within 30 days after the day the notice was issued, subject to any extension the Authority allows (regulation 6(6) and definition of allowed period in regulation 3(1)).

Duties and rights are allocated between the Authority and liable persons through explicit procedural steps and substantive constraints. The Authority’s duties include assessing standing charges after each quarter and issuing a notice of assessment to the service provider that specifies the amount of each charge, the total amount payable and the amount of core function costs used in the calculation, plus the day the notice was issued (regulation 5(1)(a)-(b)). The Authority may give written notices requiring specific charges for functions in Schedule 2, and must specify the amount and the date of issue in the notice (regulation 6(1)-(2)). For specific charges, the Authority must ensure the amount is equivalent to costs actually incurred by the Authority that are directly attributable to the relevant function, with categories of recoverable costs identified in regulation 6(4). On request, the Authority must provide an itemised account of the costs covered by a specific charge (regulation 6(5)).

Liable persons have the duty to pay assessment amounts for standing charges and specific charges within 30 days after the date specified in the notice (regulations 5(2) and 6(6)). The definition of allowed period ties into these payment deadlines and permits the Authority to allow a further period; interest at the prescribed rate accrues if payment is not made in full within the allowed period, calculated daily (regulation 3(1); regulations 5(3) and 6(7)). The prescribed rate is set by reference to a market index plus a margin, or by Authority determination of comparable indices when the index is not quoted (regulation 3(1)).

The Authority has the right to recover unpaid sums as debts in court and to rely on a chairman’s certificate as prima facie evidence of liability and unpaid status without further proof of appointment or signature authenticity (regulation 9(1)-(2)). The instrument also gives the Authority discretion to require fees for documents and meeting admission, within limits: document fees must be calculated by reference to costs but cannot exceed $100 (regulation 7(1)-(2)); the Authority must calculate meeting fees by reference to the costs of holding the meeting (regulation 8(2)). The Authority cannot impose document fees on the Coordinator or Director, and cannot charge meeting fees to the Coordinator, the Director, or their representatives (regulations 7(3) and 8(3)).

Rights of transparency are partly codified. A notice for a standing charge must disclose the core function costs used in the calculation (regulation 5(1)(b)(ii)). For specific charges, on request the Authority must provide an itemised account of the costs covered (regulation 6(5)). The Authority’s annual report must disclose total amounts of standing charges and specific charges for each person and total fees under these regulations, which creates a public reporting obligation on the Authority rather than a private right for payers (regulation 10).

The regulations do not create criminal penalties; they provide civil enforcement mechanisms for unpaid assessments and specific charges. The Authority may recover unpaid assessment amounts or specific charges, plus interest, as a debt in a court of competent jurisdiction (regulation 9(1)). In such proceedings, the Authority may rely on a certificate that purports to be signed by the chairman and that specifies the amounts claimed and the person liable, and that states the amounts are unpaid; that certificate is admissible as sufficient evidence of the matters specified or stated without proof of the chairman’s appointment or the signature’s authenticity (regulation 9(2)).

Interest on unpaid amounts accrues at the prescribed rate, calculated daily, from the day after the allowed period as defined; regulation 3(1) defines the prescribed rate as 5 percentage points higher than the Bank Bill Reference Rate Mid‑Rate for a one month bill quoted on Reuters Screen BBSW at about 10 a.m. Sydney time on the first day after the allowed period, with a fallback to an Authority determination of comparable indices if the Reuters rate is not quoted (regulation 3(1); regulations 5(3) and 6(7)). This sets a monetary cost of late payment, indexed to a market reference plus a fixed margin.

There is no express statutory penalty, administrative sanction, or enforcement ladder such as suspension of service provider rights or referral to regulators provided in these regulations. The Authority’s remedy is civil recovery. The chairman’s certificate provision reduces evidentiary costs for the Authority in court, by creating a streamlined certificate‑based proof mechanism for liability and non‑payment (regulation 9(2)). The regulations do not present an internal objection, review or appeal mechanism for the amount asserted, nor do they prescribe alternative dispute resolution processes; the text confines challenge to the usual civil law defences in court proceedings.

For persons facing specific charges, the regulations impose an obligation to request an itemised account if they want details, and provide no statutory stay on recovery while disputing amounts; the payment obligation stands and interest may accrue if unpaid within the allowed period, unless the Authority grants a further period (regulation 6(5), 6(6), 6(7)). For standing charges, the Authority must disclose the core function costs used in calculations in the notice of assessment, which gives a factual basis for any challenge (regulation 5(1)(b)(ii)). The regulations do not specify time limits for commencing recovery proceedings; that will be governed by ordinary civil limitation rules in the courts.

These regulations operate in close textual and functional connection with a number of other statutes and instruments. They attach to the National Gas Law and National Gas Rules by design. Regulation 3(2) expressly imports meanings from the National Gas Law where used in these regulations unless a contrary intention appears. The National Gas Law and National Gas Rules are defined terms within regulation 3(1), and the defined phrase national gas scheme laws encompasses the National Gas Law, the National Gas Rules, the National Gas Access (WA) Regulations as defined in the National Gas Access (WA) Act 2009, and that Act and any regulations made under Part 6 of it (regulation 3(1)). Consequently, many substantive triggers in Schedule 2 and Schedule 3 refer to parts of the NGL, NGR or the Gas Code functions under the previous regime, and liabilities under these regulations arise only where the referenced NGL/NGR/Gas Code functions are performed.

Specific cross references include: NGL s. 92 and NGL s. 19 in relation to coverage matters; NGR r. 21 to r. 28 and r. 35, 37, 39, 27 for tender and light regulation matters; numerous NGR provisions for access arrangement approvals, variations and related procedures in Schedule 2 items 11 through 15 and 17 through 19; NGL provisions on ring fencing (ss. 143, 146, 147, 148) in items 20 to 22; NGL s. 125 for pipeline designation reviews; NGR r. 6 for public consultation meetings that may attract meeting fees; and NGL s. 64 for performance reports in item 25 of Schedule 2. These references make the regulatory charging regime dependent on the substantive architecture of the national gas regime.

The Energy Coordination Act 1994 supplies definitions for the Coordinator and Director referenced in regulation 3(1); the Coordinator and Director are given limited fee immunities under regulations 7 and 8. Schedule 1’s note refers to licences under the Energy Coordination Act 1994 for distribution licences (WA:GDL) and to the Petroleum Pipelines Act 1969 for pipeline licences (WA:PL), linking the Schedule 1 identifiers to licence regimes in those Acts.

The regulations also interact with the Financial Management Act 2006, in that the Authority’s annual report obligations are framed as the report the Authority must submit under Financial Management Act 2006 s. 61, and regulation 10 requires the annual report to include totals of standing charges, specific charges and fees under these regulations.

Transitional linkages are explicit. Regulation 11 repeals the Economic Regulation Authority (Gas Pipelines Access Funding) Regulations 2003 and the Economic Regulation Authority (Transitional) Regulations 2003. Regulations 12 and 13 provide transitional arrangements that reference the earlier Gas Pipelines Access funding regime, including carrying forward costs incurred in the last GPA period into the first NGL period for standing charge calculations, and treating certain uncharged or transitioned functions as if they were within Schedule 2 (regulations 12 and 13, Schedule 3). Regulation 13(4) specifies that despite regulation 3(2), a term has the same meaning in Schedule 3 as it has in the Gas Code unless the contrary intention appears, which creates a temporary lexicon link to the old Gas Code for transitioned functions.

The text supplied contains the compilation table and the repeal provisions that establish the instrument’s initial enactment and the instruments it replaced, but it does not record any subsequent amendments in the provided compilation material. The compilation table records the Economic Regulation Authority (National Gas Access Funding) Regulations 2009 as gazetted on 31 December 2009, with regulations 1 and 2 commencing on that gazettal date and the remainder of the regulations commencing on 1 January 2010 when Part 2 of the National Gas Access (WA) Act 2009 came into operation as noted in regulation 2 and the compilation table.

Regulation 11 expressly repeals two predecessor instruments: the Economic Regulation Authority (Gas Pipelines Access Funding) Regulations 2003 and the Economic Regulation Authority (Transitional) Regulations 2003. The transitional provisions in regulations 12 and 13 and Schedule 3 provide for carry‑over and treatment of functions and costs from the prior regime into the new charging framework, indicating that the 2009 regulations were designed to replace the 2003 instruments and to manage transitional accounting and function allocation.

No amending regulations, notations of later variations, or subsequent compilation dates are included in the text provided. There are no schedule notes indicating later insertions or deletions, nor are there marginal notes in the supplied text showing any later amendments. The document’s Notes section states that it is a compilation of the 2009 regulations and reproduces the compilation table; that table does not show later amendment entries. Therefore, within the confines of the source, the amendment history consists of the 2009 making, gazettal and commencement dates and the repeal of the earlier 2003 instruments, with transitional arrangements to bridge the old Gas Code and new NGL‑based regime (regulation 11 and regulations 12-13, Schedule 3, compilation table).

Practitioners should note that the instrument cross‑references external statutes and rules which themselves may have been amended after 2009; the definitions and triggers that rely on the National Gas Law, National Gas Rules and other external instruments will therefore be affected by any amendments to those instruments. Those external amendment histories are not included in this text.

The regulations as supplied contain no record of judicial consideration, case names, reported decisions, or litigation outcomes. The text does not cite case law, nor does it reproduce any judgments or references to disputes decided under these regulations. The only procedural provision touching on evidence in court is regulation 9(2), which provides that a certificate purporting to be signed by the chairman and specifying assessment amounts, specific charges, interest and the person liable, and stating those amounts are unpaid, is sufficient evidence of those matters without proof of the chairman’s appointment or the authenticity of the signature. That evidentiary rule is intended to streamline civil recovery proceedings brought by the Authority, but the text does not show how courts have treated such certificates in practice.

Because the instrument provides for debt recovery in a court of competent jurisdiction for unpaid amounts (regulation 9(1)), litigated disputes in practice would be expected to arise on typical civil law grounds, including disputes as to liability, whether the function specified in Schedule 2 was actually performed, whether costs were properly attributable and incurred, whether the calculation aligns with the regulations, and challenge to the amount asserted despite the chairman’s certificate. None of those practical litigated issues are addressed or exemplified by cases within the supplied source.

Practitioners needing to understand how courts have treated the chairman’s certificate provision, the Authority’s discretion to levy specific charges, or contested calculations should look beyond this instrument for reported decisions. The regulations themselves do not provide an internal dispute resolution or objection procedure that would short circuit litigation; recovery is by ordinary civil process. The absence of litigation entries in this text means that readers must consult legal databases, court records, or the Authority’s public materials for any reported litigation under these regulations; that material is outside the supplied source.

Several operational and interpretative points in the regulations can cause practical surprises if overlooked. First, the allowed period is not a fixed statutory term separate from the payment windows; the phrase allowed period is defined as the period referred to in regulation 5(2) or 6(6), or any further period the Authority may allow (regulation 3(1)). Since regulations 5(2) and 6(6) set the default payment window as 30 days after the notice date, the allowed period normally equals 30 days. However, the Authority may extend that period at its discretion, which affects when interest begins to run and which date is used for calculating the prescribed rate (definition of prescribed rate in regulation 3(1)). Relying on a presumed payment date without requesting an extension can therefore produce interest exposure.

Second, the standing charge calculation is presented with a formula image in regulation 4(3) which the narrative definitions explain only through its constituent variables. The variables are S, C, P, DQ and DP, where C is core function costs, P is the Schedule 1 percentage, DQ is the days in the quarter and DP is the days in the quarter during which the pipeline is specified in Schedule 1 and the person is the service provider (regulation 4(3) and Schedule 1). The practical implication is that standing charges are both pipeline‑allocated by a fixed percentage and pro rated by days of service provider responsibility in the quarter. Where service provider rights change mid‑quarter, DP is the precise days count and will affect liability. The Schedule 1 percentages are fixed in the Schedule and sum to 100, so any error in identifying the pipeline or the service provider days will directly change the assessed amount.

Third, the standing charge applies only where the pipeline is a covered pipeline, a concept that is not defined in these regulations and must be sought in the National Gas Law or National Gas Rules (regulation 4(1)). Therefore, whether a pipeline listed in Schedule 1 is a covered pipeline in any period is a substantive determination external to these regulations. Practitioners must confirm covered pipeline status in the NGL framework.

Fourth, specific charges are limited to costs that have been incurred by the Authority and that are directly attributable to the function or to necessary or convenient acts done in connection with it (regulation 6(3)). Nonetheless, the lists of recoverable costs in regulation 6(4) are broad and include consultant and contractor costs, travel, equipment, publishing and public consultation costs. This means large external consultancy expenses can be passed through to applicants or service providers if those costs are properly attributed and documented. The Authority must provide an itemised account on request, but there is no cap on specific charges in the regulations themselves; applicants who wish to contest a specific charge must request the itemised account and may need to litigate if dispute persists (regulation 6(5)).

Compliance requires operational coordination between service providers, applicants, and their advisers, with attention to notice mechanics, timely payment, documentation, and engagement with the Authority. The practical steps are as follows.

1. Determine whether you are a liable person. For standing charges, confirm whether a pipeline you operate is listed in Schedule 1 and whether it is a covered pipeline during the quarter; if so you will be the liable service provider for the days you are the service provider (regulation 4(1)-(3) and Schedule 1). For specific charges, check Schedule 2 (and Schedule 3 for transitioned functions) to determine whether you are a person described there in relation to the function exercised by the Authority (regulations 6(1) and 13(3), Schedules 2 and 3).

2. Maintain day‑by‑day records of service provider status. Because DP in regulation 4(3) counts the number of days in the quarter during which the pipeline is both specified and you are the service provider, accurate records of transfers of service provider status or temporary changes in service provider responsibilities will directly affect the standing charge amount.

3. Expect quarterly assessments. The Authority must assess standing charges as soon as practicable after each quarter and issue a notice specifying each charge, the total payable and the core function costs used in the calculation (regulation 5(1)). Treat such notices as invoices subject to a 30 day payment obligation unless the Authority allows a longer period (regulation 5(2)).

4. Pay promptly or seek an extension. If you receive a notice for standing or specific charges, pay within 30 days of the notice date or apply to the Authority for a further period; interest accrues at the prescribed rate if you fail to pay within the allowed period (regulations 5(2)-(3) and 6(6)-(7); definition of prescribed rate in regulation 3(1)). If you expect to contest the assessment, request an extension from the Authority promptly to avoid interest accrual.

5. Request itemised accounts for specific charges. The Authority must provide an itemised account of costs covered by a specific charge if you request it (regulation 6(5)). Use that itemisation to identify whether the costs claimed are within the types authorised by regulation 6(4) and whether they are directly attributable to the specified function.

6. Keep documentary evidence of interactions and costs. If the Authority seeks to recover unpaid amounts, it may rely on a chairman’s certificate in court as sufficient evidence of liability and non‑payment (regulation 9(2)). Preserve contemporaneous records that show the factual basis for any dispute about the amount or the Authority’s entitlement.