An Act to make provision for the regulation of third party access to natural gas pipeline systems, and for other purposes
Preamble
This Preamble sets out the matters taken into account by the Parliament in enacting this Act.
The Council of Australian Governments agreed, in February 1994, to general principles of competition policy reform to enable third parties, in particular circumstances, to gain access to essential facilities.
The Council of Australian Governments, as part of that commitment to reform, agreed to more specific proposals for the development of free and fair trade in natural gas.
The Commonwealth, the States of New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania, the Australian Capital Territory and the Northern Territory agreed in November 1997 to the enactment of legislation in the Commonwealth and those States and Territories so that a uniform national framework applies for third party access to all gas pipelines that:
(a) facilitates the development and operation of a national market for natural gas; and
(b) prevents abuse of monopoly power; and
(c) promotes a competitive market for natural gas in which customers may choose suppliers, including producers, retailers and traders; and
(d) provides rights of access to natural gas pipelines on conditions that are fair and reasonable for the owners and operators of gas transmission and distribution pipelines and persons wishing to use the services of those pipelines; and
(e) provides for resolution of disputes.
Part 1—Preliminary
1 Short title [see Note 1]
This Act may be cited as the Gas Pipelines Access (Commonwealth) Act 1998.
2 Commencement [see Note 1]
(1) Subject to subsections (2) and (3), this Act commences at the commencement of sections 13 and 14 of the Gas Pipelines Access (South Australia) Act 1997 of South Australia.
(2) Items 2 to 4 of Schedule 1 commence at the commencement of the later of:
(a) sections 13 and 14 of the Gas Pipelines Access (South Australia) Act 1997 of South Australia; and
(b) the provisions that correspond to those sections and that are contained in a law of New South Wales that substantially corresponds to Parts 1, 2, 4 and 5 of the South Australian Act.
(3) Items 27 to 56 of Schedule 1 commence on the day on which this Act receives the Royal Assent.
3 Schedule(s)
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
4 Interpretation of this Act and related legislation
There are a number of places where the reader might find the definition of a term used in this Act or the related Gas Pipelines Access (Commonwealth) Law and Gas Pipelines Access (Commonwealth) Regulations. Apart from terms defined specifically for the purposes of a particular provision (for example, see subsection 21(2)), definitions are located as follows:
(a) if a term is defined for the purposes of this Act only—section 5 of this Act;
(b) if a term is defined for the purposes of the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations and the meaning of that term is specific to the jurisdiction of the Commonwealth—section 12 of this Act;
(c) if a term is defined for the purposes of the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations and the term has the same meaning for every jurisdiction that participates in the national scheme for third party access to gas pipelines—section 2 of Schedule 1 to the South Australian Act and the Appendix to that Schedule.
In addition, the Appendix referred to in paragraph (c) also makes other provisions for the interpretation of that Law. That Appendix, or substantially corresponding provisions, will apply to each jurisdiction that participates in the national scheme under the law of that jurisdiction.
5 Definitions
(1) In this Act, unless the contrary intention appears:
Federal Court means the Federal Court of Australia.
Gas Pipelines Access (Commonwealth) Law means:
(a) in relation to an external Territory and its offshore area or to the Jervis Bay Territory—the provisions applying in that external Territory and its offshore area, or in the Jervis Bay Territory, under subsection 8(1); or
(b) in relation to the offshore area in respect of a State or of the Northern Territory—the provisions applying in that offshore area because of the operation of section 9.
Gas Pipelines Access (Commonwealth) Regulations means:
(a) in relation to an external Territory and its offshore area or to the Jervis Bay Territory—the provisions applying in that external Territory and its offshore area, or in the Jervis Bay Territory, under subsection 8(1); or
(b) in relation to the offshore area in respect of a State or of the Northern Territory—the provisions applying in that offshore area because of the operation of section 10.
Gas Pipelines Access Law means:
(a) Schedule 1 to the South Australian Act:
(i) as enacted; or
(ii) if amended, as amended and in force for the time being; and
(b) the National Third Party Access Code for Natural Gas Pipeline Systems (a copy of which, as agreed by the Council of Australian Governments on 7 November 1997, is set out in Schedule 2 to the South Australian Act), or, if that Code is amended in accordance with Schedule 1 to that Act, that Code as so amended and in force for the time being.
Gas Pipelines Access Regulations means regulations in force from time to time under Part 3 of the South Australian Act.
national scheme means the scheme for the provision of third party access to gas pipelines facilitated by the collective operation of the gas pipelines access legislation of all scheme participants.
offshore area, in relation to a State or Territory, has the same meaning as in the Offshore Petroleum Act 2006.
South Australian Act means the Gas Pipelines Access (South Australia) Act 1997 of South Australia.
(2) Words and expressions used in Schedule 1 to the South Australian Act (applying as part of the Gas Pipelines Access (Commonwealth) Law) and in this Act have the same respective meanings in this Act as they have in that Schedule.
(3) Subsection (2) does not apply to the extent that the context or subject matter otherwise indicates or requires.
6 Crown to be bound
This Act, the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations bind the Crown in all its capacities other than the Crown in right of Norfolk Island.
7 Extra‑territorial operation
(1) It is the intention of the Parliament that the operation of this Act, the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations should, as far as possible, include operation in relation to the following:
(a) things situated in or outside Australia;
(b) acts, transactions and matters done, entered into or occurring in or outside Australia;
(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of a State, a Territory or a foreign country.
(2) Nothing in subsection (1) has effect in relation to a pipeline to the extent that the pipeline is situated, or partly situated, beyond the jurisdictional areas of all the scheme participants.
Part 2—Application of this Act, the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations in particular circumstances
8 Application of laws in certain Territories and offshore areas under this Act
(1) This Act, the Gas Pipelines Access Law and the Gas Pipelines Access Regulations apply:
(a) in each of the external Territories (other than Norfolk Island or the Australian Antarctic Territory or any other external Territory that is prescribed); and
(b) in the offshore area in respect of each external Territory to which this Act applies under paragraph (a); and
(c) in the Jervis Bay Territory.
(2) If the Gas Pipelines Access Law applies in an external Territory and its offshore area or in the Jervis Bay Territory:
(a) the Gas Pipelines Access Law so applies as a law of the Commonwealth; and
(b) as so applying may be referred to as the Gas Pipelines Access (Commonwealth) Law.
(3) If the Gas Pipelines Regulations apply in an external Territory and its offshore area or in the Jervis Bay Territory:
(a) the Gas Pipelines Access Regulations so apply as regulations in force for the purposes of the Gas Pipelines Access (Commonwealth) Law; and
(b) as so applying may be referred to as the Gas Pipelines Access (Commonwealth) Regulations.
(4) Subsection (1) does not apply in relation to a Territory or its offshore area if, in accordance with an Act, there is in force in that Territory, whether with or without modifications, the gas pipelines access legislation of a State, the Australian Capital Territory or the Northern Territory.
9 Application of Gas Pipelines Access Law in certain offshore areas under the Offshore Petroleum Act 2006
If this Act applies in the offshore area in respect of a State or of the Northern Territory because of the operation of section 69 of the Offshore Petroleum Act 2006:
(a) the Gas Pipelines Access Law also applies in that offshore area as a law of the Commonwealth; and
(b) as so applying may be referred to as the Gas Pipelines Access (Commonwealth) Law.
10 Application of Gas Pipelines Access Regulations in certain offshore areas under the Offshore Petroleum Act 2006
If this Act applies in the offshore area in respect of a State or of the Northern Territory because of the operation of section 69 of the Offshore Petroleum Act 2006:
(a) the Gas Pipelines Access Regulations also apply in that offshore area as regulations in force for the purposes of the Gas Pipelines Access (Commonwealth) Law; and
(b) as so applying may be referred to as the Gas Pipelines Access (Commonwealth) Regulations.
11 Extended operation of certain State and Territory Laws
(1) If, because of the operation of subsection 59(1) of the Offshore Petroleum Act 2006, the gas pipelines access legislation of a State or of the Northern Territory also applies, as a law of the Commonwealth, in the offshore area in respect of that State or Territory, then:
(a) subject to subsection (2), any act or thing done, including an act or thing that is taken to have been done, for the purposes of the gas pipelines access legislation of that State or Territory, is taken also to be done or to have been done for the purposes of that legislation as so applying; and
(b) subject to subsection (3), that legislation as so applying is to be administered by the same persons or bodies, and in the same manner, as that law is administered within the limits of the State or Territory.
(2) If:
(a) an act or thing was done for the purposes of a law of a State or Territory (whether before or after the commencement of the gas pipelines access legislation of that State or Territory); and
(b) the act or thing is, for the purposes of a law of the State or Territory, taken to have been done for the purposes of the gas pipelines access legislation of that State or Territory;
the act or thing is taken, under paragraph (1)(a), to have been done under the gas pipelines access legislation applying in the offshore area in respect of that State or Territory only if the Commonwealth Minister determines in writing that the act or thing is to be taken to have that effect.
(3) Subject to subsection (4), if any payment (including fees, charges or pecuniary penalties) (an applicable payment) is received by the State or Territory referred to in subsection (1), or by an authority of that State or Territory, under the gas pipelines access legislation as so applying:
(a) the applicable payment is taken to have been received on behalf of the Commonwealth and must be paid to the Commonwealth by that State or Territory or that authority; and
(b) the Commonwealth must pay to the State or Territory, or to that authority, an amount equal to the applicable payment.
(4) A payment under paragraph (3)(a) may be set off against a payment under paragraph (3)(b) but the Commonwealth must show, for accounting purposes, the full amount of each payment made under each of those paragraphs.
(5) If, in accordance with an Act of the Commonwealth, the gas pipelines access legislation of a State, the Australian Capital Territory or the Northern Territory is in force in an external Territory and its offshore area, or in the Jervis Bay Territory, then:
(a) subject to subsection (6), any act or thing done, including any act or thing that is taken to have been done, for the purposes of the gas pipelines access legislation of that State, the Australian Capital Territory or the Northern Territory, is taken also to be done, or to have been done, for the purposes of that legislation as so in force; and
(b) subject to subsection (7), that legislation as so in force is to be administered by the same persons or bodies, and in the same manner, as that law is administered within the limits of the State, the Australian Capital Territory or the Northern Territory, as the case may be.
(6) If:
(a) an act or thing was done for the purposes of a law of a State, the Australian Capital Territory or the Northern Territory (whether before or after the commencement of the gas pipelines access legislation of that State or Territory); and
(b) the act or thing is, under a law of that State or Territory, taken to have been done for the purposes of the gas pipelines access legislation of that State or Territory;
the act or thing is taken, under paragraph (5)(a), to have been done for the purposes of the gas pipelines access legislation as in force in an external Territory and its offshore area only if the Commonwealth Minister determines in writing that the act or thing is to be taken to have that effect.
(7) Subject to subsection (8), if any payment (including fees, charges or pecuniary penalties) (an applicable payment) is received by the State, the Australian Capital Territory or the Northern Territory referred to in subsection (5), or by an authority of that State or Territory, under the gas pipelines access legislation as in force in an external Territory and its offshore area:
(a) the applicable payment is taken to have been received on behalf of the Commonwealth and must be paid to the Commonwealth by that State or Territory or by that authority; and
(b) the Commonwealth must pay to the State or Territory, or to that authority, an amount equal to the applicable payment.
(8) A payment under paragraph (7)(a) may be set off against a payment under paragraph (7)(b) but the Commonwealth must show, for accounting purposes, the full amount of each payment made under each of those paragraphs.
(9) The Consolidated Revenue Fund of the Commonwealth is appropriated for the purpose of making the payments provided for in paragraphs (3)(b) and (7)(b).
(10) The Commonwealth Minister must cause a copy of each determination under subsection (2) or (6) to be laid before each House of the Parliament within 5 sitting days of that House after the determination was made.
(11) Nothing in this section affects, by implication, the application of any other law of a State, the Australian Capital Territory or the Northern Territory, under another provision of an Act, in:
(a) an external Territory; or
(b) the offshore area in respect of a State or Territory; or
(c) the Jervis Bay Territory.
(12) A reference in this section to an act or thing done or taken to have been done includes a reference to a decision made or taken to have been made.
12 Interpretation of some expressions in the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations
(1) In the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations:
Code means:
(a) the National Third Party Access Code for Natural Gas Pipeline Systems, a copy of which, as agreed by the Council of Australian Governments on 7 November 1997, is set out in Schedule 2 to the South Australian Act; or
(b) if that Code is amended in accordance with Schedule 1 to that Act, that Code as so amended and in force for the time being;
as it applies because of section 8 or 9 of this Act as a law of the Commonwealth.
Consolidated Fund means the Consolidated Revenue Fund of the Commonwealth.
Gas Pipelines Access Law means the Gas Pipelines Access (Commonwealth) Law.
Legislature means the Parliament of the Commonwealth.
local Regulator means the ACCC.
the Court means the Federal Court of Australia.
this law means the Gas Pipelines Access (Commonwealth) Law.
this scheme participant means the Commonwealth.
(2) In the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations:
(a) a reference to the local appeals body or to the designated appeals body is a reference to the Australian Competition Tribunal; and
(b) a reference to the local Minister or to the designated Minister is a reference to the Minister having responsibility for the administration of this Act.
Part 3—National administration and enforcement
Division 1—Conferral of functions and powers
13 Commonwealth consent to conferral of functions etc. on Commonwealth Minister
(1) The gas pipelines access legislation of a State or Territory may confer functions or powers, or impose duties, on the Commonwealth Minister for the purposes of that legislation.
Note 1: Section 13B sets out when such legislation imposes a duty on the Commonwealth Minister.
Note 2: Functions and powers conferred, and duties imposed, on the NCC under the gas pipelines access legislation of a State or Territory are dealt with under section 29BA of the Trade Practices Act 1974.
Note 3: Functions and powers conferred, and duties imposed, on the ACCC or the Australian Competition Tribunal under the gas pipelines access legislation of a State or Territory are dealt with under section 44ZZM of the Trade Practices Act 1974.
(2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by the gas pipelines access legislation of a State or Territory to the extent to which:
(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth Minister; or
(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.
(3) The Commonwealth Minister cannot perform a duty or function, or exercise a power, under the gas pipelines access legislation of a State or Territory unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.
13A How duty is imposed
Application
(1) This section applies if the gas pipelines access legislation of a State or Territory purports to impose a duty on the Commonwealth Minister.
Note: Section 13B sets out when such legislation imposes a duty on the Commonwealth Minister.
State or Territory legislative power sufficient to support duty
(2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:
(a) imposing the duty is within the legislative powers of the State or Territory concerned; and
(b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commonwealth Minister.
Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 13 to the imposition of the duty by that law).
Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not
(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.
(4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.
(5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:
(a) is within the legislative powers of the Commonwealth; and
(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commonwealth Minister.
(6) Subsections (1) to (5) do not limit section 13.
13B When the gas pipelines access legislation of a State or Territory imposes a duty
For the purposes of sections 13 and 13A, the gas pipelines access legislation of a State or Territory imposes a duty on the Commonwealth Minister if:
(a) the law confers a function or power on the Commonwealth Minister; and
(b) the circumstances in which the function or power is conferred give rise to an obligation on the Commonwealth Minister to perform the function or to exercise the power.
14 Functions and powers conferred on local Ministers, local Regulators and local appeals bodies in or in relation to jurisdictional area of the Commonwealth
If:
(a) a function or power is, under the gas pipelines access legislation of a State or Territory, expressed to be conferred on the local Minister, the local Regulator or the local appeals body, within the meaning of the gas pipelines access legislation of that State or Territory; and
(b) that function or power is to be performed or exercised in or in relation to the jurisdictional area of the Commonwealth;
that local Minister, local Regulator or local appeals body:
(c) may perform that function or exercise that power in or in relation to that area; and
(d) may exercise any power necessary or convenient to permit the performance of that function.
15 Conferral of functions on Code Registrar
(1) The Code Registrar has:
(a) the functions and powers conferred or expressed to be conferred on the Code Registrar under the Gas Pipelines Access (Commonwealth) Law or under the National Gas Agreement; and
(b) any other functions and powers conferred on the Code Registrar by unanimous resolution of the relevant Ministers of the scheme participants.
(2) In addition to the powers mentioned in subsection (1), the Code Registrar has power to do all things necessary or convenient to be done in connection with the performance of the functions and powers referred to in that subsection.
Division 2—Federal Court
16 Jurisdiction of Federal Court in relation to Gas Pipelines Access Law and Regulations
(1) Jurisdiction is conferred on the Federal Court with respect to civil and criminal matters arising under the Gas Pipelines Access (Commonwealth) Law.
(2) The Federal Court has, and may exercise, the jurisdiction conferred on the Court by the gas pipelines access legislation of the Australian Capital Territory or the Northern Territory with respect to civil and criminal matters arising under the Gas Pipelines Access Law of that Territory.
17 Conferral of jurisdiction on Federal Court by Territories not to affect cross‑vesting law
The conferral of jurisdiction on the Federal Court by the gas pipelines access legislation of the Australian Capital Territory or the Northern Territory does not affect the operation of any law relating to cross‑vesting of jurisdiction.
Division 3—Administrative decisions
18 Application of the Administrative Decisions (Judicial Review) Act 1977
(1) For the purposes of the application of the Administrative Decisions (Judicial Review) Act 1977 to any decision of a Code body under the Gas Pipelines Access (Commonwealth) Law or the Gas Pipelines Access (Commonwealth) Regulations, those decisions are taken to be decisions made under an enactment within the meaning of that Act.
(2) In this section:
Code body means:
(a) the NCC; or
(b) the ACCC, including the ACCC in its capacity as local Regulator within the meaning of the Gas Pipelines Access (Commonwealth) Law; or
(c) the Australian Competition Tribunal, including that tribunal in its capacity as local appeals body within the meaning of the Gas Pipelines Access (Commonwealth) Law; or
(d) the local Minister; or
(e) an arbitrator appointed under Part 4 of the Gas Pipelines Access (Commonwealth) Law.
Part 4—Miscellaneous
20 Exemption from Commonwealth taxes
(1) Any prescribed tax imposed by or under a law of the Commonwealth 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 that the Commonwealth Minister and the Treasurer are satisfied is made:
(a) for the purpose of ensuring that a person does not carry on a business of producing, purchasing or selling natural gas in breach of the Code; or
(b) for the purpose of the separation of certain activities from other activities of a person as required by the Code;
and for no other purpose.
21 Exemption from State and Territory taxes
(1) Any stamp duty or other tax imposed by or under a law of a State or Territory 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 that the Commonwealth Minister is satisfied is made:
(a) for the purpose of ensuring that a person does not carry on a business of producing, purchasing or selling natural gas in breach of the Code; or
(b) for the purpose of the separation of certain activities from other activities of a person as required by the Code;
and for no other purpose.
22 Actions in relation to cross‑boundary pipelines
(1) If a pipeline is a cross‑boundary pipeline, any action taken under the gas pipelines access legislation of a scheme participant in whose jurisdictional area a part of the pipeline is situated:
(a) by, or in relation to, a relevant Minister, or a relevant Regulator, within the meaning of that legislation; or
(b) by, or in relation to, an arbitrator appointed by such a relevant Regulator within the meaning of that legislation; or
(c) by the relevant appeals body, within the meaning of that legislation, in relation to the action taken by, or in relation to, a person or body referred to in paragraph (a) or (b);
is taken also to be action taken under the gas pipelines access legislation of each other scheme participant in whose jurisdictional area a part of the pipeline is situated (that other legislation):
(d) by, or in relation to, a relevant Minister, or a relevant Regulator, within the meaning of that other legislation; or
(e) by, or in relation to, an arbitrator appointed by a relevant Regulator within the meaning of that other legislation; or
(f) by the relevant appeals body, within the meaning of that other legislation;
as the case requires.
(2) In this section:
cross‑boundary pipeline means a transmission pipeline, or a distribution pipeline, that is, or is to be, situated in the jurisdictional areas of 2 or more scheme participants.
(3) A reference in this section to an action that is taken includes a reference to a decision that is made.
23 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.