Part 1 Citation and interpretation

Part 1 Citation and interpretation

1 Citation

1 Citation

This law may be cited as the National Gas (NSW) Law.

2 Definitions

2 Definitions

(1) In this Law—

ACCC means the Australian Competition and Consumer Commission established by section 6A of the Competition and Consumer Act 2010 of the Commonwealth;

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

access determination means a determination of the relevant adjudicator for an access dispute under Chapter 5 Part 5 and includes a determination varied under Part 6 of that Chapter;

access dispute means a dispute between a user or prospective user and a service provider about 1 or more aspects of access to a pipeline service provided by means of a pipeline and includes a matter that is deemed to be an access dispute under the Rules;

adoptive jurisdiction means a participating jurisdiction for which AEMO is authorised to exercise its declared system functions or STTM functions;

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

AEMO amendments means—

(a) the amendments to this Law made by the National Gas (South Australia) (National Gas Law—Australian Energy Market Operator) Amendment Act 2009; and

(b) the amendments to the Rules made by the National Gas (South Australia) (National Gas Rules—Australian Energy Market Operator) Amendment Rules 2009; and

(c) the Procedures first made under this Law after the enactment of the amendments referred to in paragraph (a);

AER means the Australian Energy Regulator established by section 44AE of the Competition and Consumer Act 2010 of the Commonwealth;

AER Compliance Procedures and Guidelines has the meaning given by section 64F;

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

AER economic regulatory function or power means a function or power performed or exercised by the AER under this Law or the Rules (other than making a rate of return instrument) that relates to the economic regulation of pipeline services provided by a service provider—

(a) by means of; or

(b) in connection with,

a pipeline and includes a function or power performed or exercised by the AER under this Law or the Rules (other than making a rate of return instrument) that relates to—

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

(d) a ring fencing decision;

(e) an applicable access arrangement decision;

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

Note—

The application of a rate of return instrument under this Law is an AER economic regulatory function or power. See section 30Q(2).

AER gas price reporting functions means the functions of the AER performed under section 27(1)(fa);

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

AER trial waiver functions means the functions conferred on the AER under Chapter 2 Part 1 Division 1B;

AER wholesale market monitoring functions—the AER wholesale market monitoring functions are set out in section 30AC(1);

AER wholesale market reporting functions—the AER wholesale market reporting functions are set out in section 30AC(2);

annual turnover has the same meaning as in section 2(1) of Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth;

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

(a) under the Rules; or

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

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

(a) approves or does not approve an access arrangement or revisions to an applicable access arrangement submitted to the AER under section 113 or the Rules; or

(b) makes an access arrangement—

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

(ii) because a scheme pipeline service provider does not submit an access arrangement in accordance with section 113 or the Rules; or

(c) makes revisions to an access arrangement—

(i) in place of revisions submitted to the AER under section 113 that the AER does not approve in that decision; or

(ii) because a scheme pipeline service provider does not submit revisions to the AER under section 113;

application Act means an Act of a participating jurisdiction that applies, as a law of that jurisdiction, this Law or any part of this Law;

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

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

associate contract means—

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

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

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

(ii) that is not at arm’s length;

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

associate pipeline service means a pipeline service provided by means of a pipeline other than a pipeline to which a greenfields incentive determination applies;

Australian Energy Market Operator or AEMO means Australian Energy Market Operator Limited (ACN 072 010 327);

bilateral trading agreement, for Chapter 2 Part 1 Division 1AA—see section 30AA;

BB Procedures means Procedures directed at regulating the Gas Bulletin Board;

biogas means a gas derived or recovered from organic matter other than fossilised organic matter;

biomethane means a substance—

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

(b) the principal constituent of which is methane; and

(c) that is produced by refining biogas; and

(d) that is suitable for consumption;

blend processing facility means a facility for 1, or more, of the following—

(a) the blending of 1 or more primary gases, with or without other substances, for injection into a pipeline;

(b) the separation of a gas blend withdrawn from a pipeline into constituent gases before re-injection into a pipeline as—

(i) a primary gas; or

(ii) a gas blend;

blend processing service means a service provided by means of a blend processing facility;

blend processing service provider means a person who owns, operates or controls a blend processing facility;

Bulletin Board information means information that—

(a) a person gives to AEMO or the AER to comply with Chapter 7 (or any Rules under that Chapter); or

(b) a person gives to AEMO in its capacity as operator of the Gas Bulletin Board in circumstances expressly permitted by the Rules;

capacity auction means an auction conducted by AEMO through which a person may buy transportation capacity;

capacity auction agreement means an agreement that relates to participation in a capacity auction and to which AEMO and persons participating in the capacity auction are parties;

capacity auction functions of AEMO are set out in section 91BRM(1);

capacity auction information means information that—

(a) a person gives to AEMO, to comply with section 91FEE(1); or

(b) a person gives, in circumstances expressly required or permitted by the Procedures or Rules—

(i) to AEMO in its capacity as operator of a capacity auction in which the person participates; or

(ii) to AEMO in its capacity as operator of a regulated gas market or a gas trading exchange if that information is to be used for the purpose of a capacity auction in which the person participates;

capacity auction participant means a person (other than AEMO) who is, or who was at the relevant time, a party to a capacity auction agreement;

Capacity Transfer and Auction Procedures means Procedures directed at the operation and administration of capacity auctions and transaction support arrangements;

changeover date means—

(a) a date fixed by or under legislation of a participating jurisdiction for AEMO’s assumption of responsibility for the operation of a gas market in the relevant jurisdiction under this Law and the Rules; or

(b) a date fixed by Ministerial Gazette notice as the changeover date;

Note—

The changeover date may vary from gas market to gas market, from provision to provision and from jurisdiction to jurisdiction. In addition, AEMO’s assumption of statutory functions in a particular participating jurisdiction may occur in stages on different changeover dates.

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

civil monetary liability means a liability for damages, compensation or any other monetary amount that can be recovered by way of civil proceedings but does not include a liability for a civil penalty or an infringement penalty under this Law or a liability for the costs of a proceeding;

civil penalty—see section 3A;

civil penalty provision has the meaning given by section 3;

classification decision means a decision of the AER under Chapter 3 Part 6 Division 1;

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

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

compression service facility means—

(a) a designated compression service facility; or

(b) any other facility or part of a facility (whether or not forming part of another facility or located on or connected to another facility) for compressing covered gas other than—

(i) a facility operated as part of a gathering system operated as part of an upstream producing operation for processable gas; or

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

compression service provider means a person who owns, controls or operates a compression service facility;

conduct provision has the meaning given by section 4;

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

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

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

covered gas means the following—

(a) a primary gas;

(b) a gas blend;

covered gas industry includes—

(a) activities and transactions relating to the following—

(i) processable gas;

(ii) biogas;

(iii) covered gas, including liquefied natural gas, and covered gas services;

(iv) covered gas industry facilities;

(v) services provided by means of covered gas industry facilities; and

(b) activities and transactions relating to petroleum tenements; and

(c) any other activity or transaction, or type of activity or transaction, specified by the Regulations for the purpose of this definition;

covered gas industry facility means the following—

(a) a blend processing facility;

(b) a compression service facility;

(c) a gas processing plant;

(d) an LNG facility;

(e) a pipeline;

(f) a storage facility;

(g) a user facility;

(h) another facility of a type specified by the Regulations for the purpose of this definition;

covered gas service means the following—

(a) a pipeline service;

(b) the supply of covered gas;

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

declared distribution system of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

declared LNG storage provider of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

declared system functions—AEMO’s declared system functions are as set out in section 91BA(1);

declared system provisions means—

(a) Chapter 2 Part 6 Division 2; and

(b) the Rules regulating the declared wholesale gas market of an adoptive jurisdiction or otherwise relevant to Chapter 2 Part 6 Division 2;

declared transmission system of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

declared wholesale gas market means the wholesale market for covered gas defined in the application Act of an adoptive jurisdiction;

designated compression service facility means a facility or part of a facility for compressing covered gas prescribed by the Regulations as a designated compression service facility;

designated pipeline means a pipeline classified by the Regulations, or designated in the application Act of a participating jurisdiction, as a designated pipeline and includes an extension to, or expansion of the capacity of, the pipeline that is taken to be part of the pipeline under section 18;

Note—

A designated pipeline is a scheme pipeline. See the definition of scheme pipeline.

designated regulatory decision means an applicable access arrangement decision (other than a decision that does not approve an access arrangement), or a decision prescribed by the Regulations to be a designated regulatory decision;

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

disposal, in relation to a right to use transportation capacity, includes disposal by means of—

(a) transfer, sale, assignment, exchange or other disposal; and

(b) the grant of a right to use, directly or indirectly, the transportation capacity;

Note—

See the definition of transfer.

dispute resolution body means the AER;

Note—

In Western Australia, under the National Gas Access (WA) Act 2009 of Western Australia, section 9, the dispute resolution body generally is the entity known as the Western Australian Energy Disputes Arbitrator.

Dispute resolution panel means a person or panel of persons appointed under the Rules to hear and determine a rule dispute;

distribution pipeline means a pipeline that—

(a) is classified as a distribution pipeline under a licence or authorisation granted in relation to the pipeline under jurisdictional gas legislation; or

(b) if the licence or authorisation mentioned in paragraph (a) does not include a classification of the pipeline—is classified by the AER as a distribution pipeline,

and includes a pipeline that is reclassified by the AER as a distribution pipeline;

Note—

See Chapter 3 Part 6 in relation to the classification and reclassification of pipelines. See also sections 18 and 19.

distributor means, except where elsewhere defined in this Law, a service provider who owns, operates or controls a scheme pipeline that is a distribution pipeline;

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

east coast gas system means the following, located wholly or partly within an east coast jurisdiction—

(a) a covered gas industry facility;

(b) a regulated gas market;

(c) a gas trading exchange for which AEMO has established a gas trading exchange agreement;

(d) a system, market or other thing specified by the Rules;

east coast gas system direction, for Part 6 Division 1A—see section 91AF(1);

East Coast Gas System Procedures, for Part 6 Division 1A—see section 91AD(1)(h);

east coast gas system reliability and supply adequacy functions of AEMO are set out in section 91AD;

east coast jurisdiction means a participating jurisdiction other than Western Australia;

ECA amendments means the amendments to this Law made by the Statutes Amendment (Energy Consumers Australia) Act 2014 of South Australia;

effective competition, for Chapter 2 Part 1 Division 1AA—see section 30AB;

end user means a person who acquires covered gas for consumption purposes, and includes a retail customer;

Energy Consumers Australia or ECA means the company incorporated, or to be incorporated, by the name Energy Consumers Australia Limited;

energy ombudsman has the same meaning as in the National Energy Retail Law;

Energy Security Board means the Energy Security Board referred to in section 2(1) of the NEL;

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

excluded infrastructure, in relation to a pipeline, means tanks, reservoirs, machinery, equipment or other infrastructure that forms part of the pipeline but is classified by the Rules as excluded infrastructure for the purposes of this Law;

exempted participant means a person exempted from registration as a Registered participant;

extension and expansion requirements means—

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

(i) the circumstances when an extension to a scheme pipeline is to be treated as forming part of the scheme pipeline; and

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

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

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

Note—

See also sections 18 and 19.

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

financial risk management product, for Chapter 2 Part 1 Division 1AA—see section 30AA;

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

foreign source means—

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

(i) the adjacent area of this jurisdiction;

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

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

former gas market operator means any of the following—

(a) VENCorp;

(b) Gas Market Company Limited (ACN 095 400 258);

(c) in relation to South Australia (but not Western Australia)—Retail Energy Market Company Limited (ACN 103 318 556);

(d) the gas retail market operator appointed under section 257A of the Gas Supply Act 2003 (Qld);

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

gas blend means primary gases that have been blended together;

Gas Bulletin Board means the website maintained by AEMO that contains information of the kind specified in the Rules for the covered gas industry;

Gas Code means the National Third Party Access Code for Natural Gas Pipeline Systems set out in Schedule 2 to the Gas Pipelines Access (South Australia) Act 1997 of South Australia as in force from time to time before the commencement of section 20 of the National Gas (South Australia) Act 2008 of South Australia;

gas contract, for Chapter 2 Part 1 Division 1AA—see section 30AA;

gas powered generator means the owner, controller or operator of a generating system, within the meaning of the National Electricity Rules, that is powered by covered gas;

gas statement of opportunities means the statement published under Chapter 2 Part 6 Division 4;

gas trading exchange means a facility through which persons may elect to buy and sell covered gas or related goods or services, including a pipeline capacity right;

gas trading exchange agreement means an agreement that relates to participation in, and the operation and administration of, a gas trading exchange established by AEMO to which AEMO (or a person appointed by AEMO to operate the gas trading exchange), and a person who becomes a member of the exchange, are parties;

gas trading exchange functions—AEMO’s gas trading exchange functions are as set out in section 91BRK;

gas trading exchange member means a person who is (or who was at the relevant time) a member of a gas trading exchange under a gas trading exchange agreement;

general market information order means an order under section 91F(1)(a) requiring information from persons of a class specified in the order;

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

greenfields pipeline project means a project for the construction of—

(a) a pipeline that is to be structurally separate from any existing pipeline; or

(b) a major extension to an existing pipeline;

greenfields incentive determination has the meaning given by section 100;

greenfields price protection determination has the meaning given by section 109;

GSOO information means information that—

(a) a person gives to AEMO to comply with section 91DB; or

(b) a person gives to AEMO for the preparation of the gas statement of opportunities in circumstances expressly permitted by the Rules;

GSOO Procedures means Procedures directed at regulating the collection of information for the gas statement of opportunities;

GTE amendments means the amendments to this Law made by the National Gas (South Australia) (Gas Trading Exchanges) Amendment Act 2013;

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

initial National Gas Procedures means National Gas Procedures made under section 294A and includes Wholesale Market Procedures and BB Procedures in force immediately before the commencement of the National Gas (South Australia) (National Gas Law—Australian Energy Market Operator) Amendment Act 2009;

initial National Gas Rules means the Initial National Gas Rules made under Chapter 9 Part 2;

initial Operational Transportation Service Code means the Operational Transportation Service Code made under section 294DA;

innovative trial principles—see section 24A;

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

jurisdictional regulator means—

(a) for New South Wales—the Independent Pricing and Regulatory Tribunal of New South Wales established by section 5(1) of the Independent Pricing and Regulatory Tribunal Act 1992 of New South Wales;

(b) for Victoria—the Essential Services Commission established by section 7(1) of the Essential Services Commission Act 2001 of Victoria;

(c) for Queensland—the Queensland Competition Authority established by section 7 of the Queensland Competition Authority Act 1997 of Queensland;

(d) for South Australia—the Essential Services Commission established by section 4(1) of the Essential Services Commission Act 2002 of South Australia;

(e) for Tasmania—the Director of Gas appointed under section 7 of the Gas Act 2000 of Tasmania;

(f) for the Australian Capital Territory—the Independent Competition and Regulatory Commission for the Australian Capital Territory established by section 5(1) of the Independent Competition and Regulatory Commission Act 1997 of the Australian Capital Territory;

(g) any other person or body—

(i) to which the functions of the jurisdictional regulator for a participating jurisdiction are assigned by or under an Act of the participating jurisdiction; or

(ii) that is prescribed by the Regulations as jurisdictional regulator of a participating jurisdiction;

LNG facility means a facility for the processing of natural gas from a gaseous to a liquefied state or from a liquefied to a gaseous state;

LNG service provider means a person who owns, controls or operates an LNG facility;

local regulation means the regulations under the application Act of a participating jurisdiction;

listed corporation has the meaning given by section 9 of the Corporations Act 2001 of the Commonwealth;

market information instrument means a general market information order or a market information notice;

market information notice means a notice under section 91F(1)(b) requiring information from the person to whom the notice is addressed;

market operator service means a service classified under the Rules as a market operator service;

MCE means the group of Ministers (constituting or forming part of a Ministerial Council, Standing Council of Ministers or similar body (however described)) responsible for energy matters at a national level comprising 9 Ministers as follows—

(a) 1 Minister from the Commonwealth;

(b) 1 Minister from each State (totalling 6 Ministers);

(c) 1 Minister from each Territory (totalling 2 Ministers),

acting in accordance with its own procedures;

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

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

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

Ministerial Gazette notice means a notice in the South Australian Government Gazette published by the South Australian Minister on the recommendation of the MCE;

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

National Electricity Law means the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia;

National Electricity Rules has the same meaning as in the National Electricity Law;

National Energy Retail Law means the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia;

National Energy Retail Rules has the same meaning as in the National Electricity Law;

national gas legislation means—

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

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

(c) the National Gas Access (WA) Act 2009 of Western Australia; and

(d) the National Gas Access (Western Australia) Law within the meaning given in the National Gas Access (WA) Act 2009 of Western Australia; and

(e) Regulations made under the National Gas Access (WA) Act 2009 of Western Australia for the purposes of the National Gas Access (Western Australia) Law; and

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

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

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

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

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

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

National Gas Procedures or Procedures means—

(a) the initial National Gas Procedures; and

(b) Procedures made by AEMO under this Law, including Procedures that amend or revoke the initial National Gas Procedures or Procedures earlier made by AEMO;

National Gas Rules or Rules means—

(a) the initial National Gas Rules; and

(ab) Rules made under Chapter 9 Part 2 Division 2; and

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

(i) the initial National Gas Rules or Rules made under Chapter 9 Part 2 Division 2; or

(ii) Rules made by it;

natural gas means a substance that—

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

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

(c) is suitable for consumption;

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

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

(b) under this Law;

Note—

See also sections 18 and 19.

non-scheme pipeline means a pipeline other than a scheme pipeline;

non-scheme pipeline access dispute means an access dispute that involves a non-scheme pipeline;

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

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

old access law means Schedule 1 to the Gas Pipelines Access (South Australia) Act 1997 of South Australia as in force from time to time before the commencement of section 20 of the National Gas (South Australia) Act 2008 of South Australia;

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

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

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

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

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

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

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

operational transportation service means—

(a) a transportation service that is provided under an operational transportation service agreement using transferred transportation capacity; and

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

operational transportation service agreement means an agreement between a transportation service provider and a transportation facility user that provides for—

(a) the transportation facility user to receive a transfer of transportation capacity acquired through any of the following means—

(i) a capacity auction; or

(ii) a gas trading exchange; or

(iii) any other means provided for in the agreement; and

(b) the terms and conditions applicable to the use of that transportation capacity;

Operational Transportation Service Code has the meaning given by section 228H;

operative period, for a greenfields incentive determination, has the meaning given by section 102(2);

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

petroleum includes any naturally occurring hydrocarbon, mixture of hydrocarbons or mixture of hydrocarbons and non-hydrocarbons, whether in gaseous, liquid or solid state;

petroleum tenement means a right granted under law to explore for, extract, recover or process petroleum;

pipeline means—

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

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

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

but does not include—

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

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

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

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

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

(i) in relation to a blend processing facility—anything from the point on a pipeline from which covered gas is taken for blend processing to the point where the gas blend is injected into the pipeline or another pipeline;

Note—

See also sections 18 and 19.

pipeline capacity right means a right under a contract with a service provider to be provided with a pipeline service, by means of a pipeline, for a given quantity of covered gas over a given period of time;

pipeline classification criterion has the meaning given by section 13;

pipeline interconnection principles has the meaning given by section 136;

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

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

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

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

pipeline service means—

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

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

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

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

but does not include—

(c) the production of a primary gas, a processable gas or biogas; or

(d) the sale or purchase of a covered gas, a processable gas or biogas; or

(e) a blend processing service;

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

(a) by or under jurisdictional gas legislation; or

(b) by the AER—

(i) under an access arrangement decision; or

(ii) in accordance with the Rules;

price information order has the meaning given by section 46A;

primary gas means the following—

(a) natural gas;

(b) hydrogen;

(c) biomethane;

(d) synthetic methane;

(e) a substance prescribed by the Regulations for the purpose of this definition;

(f) a substance prescribed as a primary gas in a participating jurisdiction by a local regulation of the participating jurisdiction;

prescribed transparency information has the meaning given by section 136C;

processable gas means a substance that—

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

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

producer means a person who carries on a business of producing 1 or more primary gases;

prospective user has the meaning given by section 5;

protected information has the meaning given by section 91G;

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

rate of return instrument—see section 30D(2);

reclassification decision means a decision of the AER under Chapter 3 Part 6 Division 2;

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

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

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

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

Registered participant means a person registered as such by AEMO under this Law (section 91BJ, section 91BRD or section 91LB) and the Rules, but does not include a transportation service provider registered under section 91BRR;

regulated gas market means—

(a) a declared wholesale gas market; or

(ab) a short term trading market; or

(b) a regulated retail gas market;

regulated retail gas market has the meaning given by section 91L(2);

Regulations means the regulations made under Part 3 of the National Gas (South Australia) Act 2008 of South Australia that apply as a law of this jurisdiction;

regulatory information instrument means—

(a) a general regulatory information order; or

(b) a regulatory information notice;

(c) a price information order;

regulatory information notice has the meaning given by section 46;

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

regulatory payment has the meaning given by section 7;

relevant entity, for Part 6 Division 1A—see section 91AF(8);

relevant adjudicator means—

(a) for a scheme pipeline access dispute—the dispute resolution body; or

(b) for a non-scheme pipeline access dispute—the arbitrator for the dispute;

relevant agreement, for Chapter 2 Part 1 Division 1AA—see section 30AA;

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

REMCo means the Retail Energy Market Company Limited (ACN 103 318 556);

retail customer means a person to whom covered gas is sold for premises by a retailer.

retail gas market has the meaning given by section 91L(1);

Retail Market Procedures means Procedures directed at regulating a retail gas market;

retailer means a person who is the holder of a retailer authorisation issued under the National Energy Retail Law in respect of the sale of gas;

revenue and pricing principles, in relation to a pipeline service provided by means of a scheme pipeline, means the principles set out in section 24;

ring fencing decision means—

(a) an AER ring fencing determination; or

(b) a decision granting or not granting an exemption under Rules made under section 148A; or

(c) an associate contract decision;

rule dispute means a dispute for the resolution of which provision is made in the Rules;

scheme pipeline means—

(a) a pipeline to which a scheme pipeline determination applies; or

(b) a designated pipeline; or

(c) a pipeline in respect of which a scheme pipeline election takes effect;

Note—

However, see section 99 in relation to when a pipeline the subject of a scheme pipeline revocation determination ceases to be a scheme pipeline.

scheme pipeline access dispute means an access dispute that involves a scheme pipeline;

scheme pipeline determination has the meaning given by section 92(1);

scheme pipeline election has the meaning given by section 95;

scheme pipeline revocation determination means a determination made under section 97(1);

scheme pipeline service provider means a service provider who provides or intends to provide pipeline services by means of a scheme pipeline;

service provider has the meaning given by section 8;

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

short term trading market means a market for the supply of covered gas that—

(a) operates in an adoptive jurisdiction; and

(b) is defined in a Rule made for the purposes of Chapter 2 Part 6 Division 2A to be a short term trading market of that adoptive jurisdiction;

Note—

There may be more than 1 short term trading market of an adoptive jurisdiction.

small shipper has the meaning given by section 8AB;

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

spare capacity means unutilised capacity of a pipeline;

standard gas day means the 24 hour period starting at the time specified in the standard market timetable;

standard market timetable means the standard market timetable provided for in the Rules in accordance with section 83B;

standard OTSA means an operational transportation service agreement within the meaning of section 228B as amended from time to time;

statutory functions, in relation to AEMO, means functions or powers conferred under—

(a) this Law, the Rules or the Procedures; or

(b) the National Electricity Law or the National Electricity Rules;

storage facility means a facility for storing processable gas, biogas or covered gas (including liquefied natural gas) before or after processing, blending or separating;

storage provider means any person who owns, controls or operates a storage facility;

STTM amendments means—

(a) the amendments to this Law made by the National Gas (South Australia) (Short Term Trading Market) Amendment Act 2009 of South Australia; and

(b) the amendments to the Rules made under section 294B; and

(c) the STTM Procedures first made under this Law after the enactment of the amendments referred to in paragraph (a);

STTM functions—AEMO’s STTM functions are as set out in section 91BRB;

STTM hub means a point or points, situated in an adoptive jurisdiction, specified in the Rules or STTM Procedures, at which a short term trading market operates;

STTM information means information that—

(a) a person gives to AEMO, to comply with section 91FEA(1); or

(b) a person gives, in circumstances expressly required or permitted by the Procedures or Rules—

(i) to AEMO in its capacity as operator of a short term trading market in which the person participates;

(ii) to AEMO in its capacity as operator of another regulated gas market if that information is to be used for the purpose of a short term trading market in which the person participates;

STTM Procedures means Procedures directed at regulating a short term trading market;

STTM trading participant means a person referred to in section 91BRC;

superseded jurisdictional rules means—

(a) legislation (including subordinate legislation) of a participating jurisdiction regulating the gas industry in that jurisdiction that—

(i) was in force immediately before the relevant changeover date; and

(ii) is superseded by the AEMO amendments; and

(b) rules to which a member of a corporate former gas market operator was subject, immediately before the relevant changeover date, under the constitution of the former gas market operator; and

(c) a licence condition governing the activities of the licensee in, or in relation to, a regulated retail gas market in a participating jurisdiction—

(i) in force immediately before the relevant changeover date; and

(ii) superseded by the AEMO amendments; and

(d) a guideline, code, standard or other instrument governing the operation or regulation of a gas market in a participating jurisdiction—

(i) made or issued by the jurisdictional regulator; and

(ii) in force immediately before the relevant changeover date; and

(iii) superseded by the AEMO amendments;

Examples—

supply includes—

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

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

synthetic methane means a substance—

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

(b) the principal constituent of which is methane; and

(c) that is produced by the methanation of carbon dioxide; and

(d) that is suitable for consumption;

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

Territory means the Australian Capital Territory or the Northern Territory;

trader means a person who—

(a) buys or sells covered gas; and

(b) in doing so is not acting in some other registrable capacity; and

(c) where the person is the purchaser of covered gas, is not buying the covered gas for the purchaser’s own use;

transaction support arrangements means arrangements to facilitate transactions with respect to transportation capacity and related goods and services concluded or to be concluded through a gas trading exchange or a capacity auction;

transfer, in relation to transportation capacity, includes a reduction in a person’s right to the transportation capacity and a corresponding increase in another person’s right to transportation capacity, whether or not on the same terms and conditions;

transmission pipeline means a pipeline that—

(a) is classified as a transmission pipeline under a licence or authorisation granted in relation to the pipeline under jurisdictional gas legislation; or

(b) if the licence or authorisation mentioned in paragraph (a) does not include a classification of the pipeline—is classified by the AER as a transmission pipeline,

and includes a pipeline that is reclassified by the AER as a transmission pipeline;

Note—

See Chapter 3 Part 6 in relation to the classification and reclassification of pipelines. See also sections 18 and 19.

transportation capacity means a right under a contract with a transportation service provider to be provided with a transportation service by means of a transportation facility, for a given quantity of covered gas over a given period of time;

transportation facility means—

(a) a pipeline; or

(b) a compression service facility; or

(c) another facility of a type specified by the Regulations for the purposes of this paragraph;

transportation facility user means a person who is a party to a contract with a transportation service provider under which the transportation service provider provides, or intends to provide, a transportation service to that person by means of a transportation facility and includes a user;

transportation service means—

(a) a pipeline service; or

(b) a service provided by means of a compression service facility; or

(c) a service provided by means of any other facility of a type specified by the Regulations for the purposes of paragraph (c) of the definition of transportation facility;

transportation service provider means a person who owns, controls or operates a transportation facility;

trial project means a project—

(a) that—

(i) the AER is satisfied is genuinely innovative taking into account the innovative trial principles (in relation to a trial waiver for a trial project); or

(ii) the AEMC is satisfied is genuinely innovative taking into account the innovative trial principles (in relation to a trial Rule for the purposes of a trial project); and

(b) tests an approach in relation to covered gas services;

trial Rule—see section 290;

trial waiver—see section 30W;

Tribunal means the Australian Competition Tribunal referred to in the Competition and Consumer Act 2010 of the Commonwealth and includes a member of the Tribunal or a Division of the Tribunal performing functions of the Tribunal;

user means a person who—

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

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

user facility means a facility by means of which covered gas is consumed (including by transformation of the gas into a new form) and which is not any other form of covered gas industry facility;

VENCorp means the Victorian Energy Networks Corporation continued under Part 8 of the Gas Industry Act 2001 of Victoria until the AEMO amendments come into force;

wholesale gas market, for Chapter 2 Part 1 Division 1AA—see section 30AA;

wholesale gas market participant, for Chapter 2 Part 1 Division 1AA—see section 30AA;

wholesale market monitoring guidelines, for Chapter 2 Part 1 Division 1AA—see section 30AA;

Wholesale Market Procedures means Procedures directed at regulating the declared wholesale gas market of an adoptive jurisdiction.

(2) A reference in this Law to an end user includes a reference to a prospective end user.

(3) A reference in this Law to the east coast gas system includes a reference to part of the east coast gas system.

(4) The Minister responsible for the administration of an application Act under which a regulation is made for paragraph (f) of the definition of primary gas must publish notice of the making of the regulation in the South Australian Government Gazette.

s 2: Am 2009 No 30, sec 6; 2009 No 46, secs 4, 16; 2011 No 7, sec 50; 2013 No 54, sec 4; 2013 No 79, sec 19; 2014 No 21, sec 26; 2018 No 12, sec 21; 2018 No 23, sec 4; 2018 No 33, sec 13; 2020 No 37, sec 47; 2021 No 3, sec 33; 2022 No 3, sec 4; 2022 No 21, sec 12; 2022 No 22, sec 32; 2023 No 7, sec 4; 2023 No 36, sec 6; 2024 No 12, sec 13.

2A Additives and impurities

2A Additives and impurities

The nature of a substance as a primary gas or a gas blend is not changed by the presence in the substance of the following—

(a) an additive required for safety;

(b) an impurity.

s 2A: Ins 2023 No 36, sec 7.

3 Meaning of civil penalty provision

3 Meaning of civil penalty provision

A civil penalty provision is—

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

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

(c) a declared system provision that is prescribed by or under the application Act of the adoptive jurisdiction to be a civil penalty provision.

Table

| Item | Provision | | 1 | Section 56 | | 2 | Section 57 | | 2A | Section 91BE(1) | | 2B | Section 91BF(1) | | 2C | Section 91BJ(1) | | 2D | Section 91BN(5) | | 2DA | Section 91BRD(1) | | 2DB | Section 91BRJ(5) | | 2DC | Section 91FC(3) and (4) | | 2E | Section 91FEA | | 2F | Section 91LB(1) | | 2G | Section 91MB(6) | | 3 | Section 131 | | 4 | Section 133 | | 5 | (Repealed) | | 6 | Section 135 | | 7 | Section 136 | | 8 | Section 139 | | 9 | Section 140 | | 10 | Section 141 | | 11 | Section 143(6) | | 12 | Section 147 | | 13 | Section 148 | | 14 | (Repealed) | | 15 | (Repealed) | | 16 | (Repealed) | | 17 | (Repealed) | | 18 | Section 223 | | 19 | Section 225 |

s 3: Am 2009 No 30, sec 7; 2009 No 46, sec 5; 2022 No 21, sec 13.

3A Civil penalty amounts for breaches of civil penalty provisions

3A Civil penalty amounts for breaches of civil penalty provisions

(1) Subject to this section, the civil penalty for a breach of a civil penalty provision is—

(a) in the case of a breach of a civil penalty provision, other than a provision prescribed under paragraph (b) or (c)—

(i) if the breach is by a natural person—

(A) an amount not exceeding $33 900; plus

(B) an amount not exceeding $3 390 for every day during which the breach continues;

(ii) if the breach is by a body corporate—

(A) an amount not exceeding $170 000; plus

(B) an amount not exceeding $17 000 for every day during which the breach continues; or

(b) in the case of a breach of a civil penalty provision prescribed by the Regulations for the purposes of this paragraph—

(i) if the breach is by a natural person—

(A) an amount not exceeding $287 000; plus

(B) an amount not exceeding $14 400 for every day during which the breach continues;

(ii) if the breach is by a body corporate—

(A) an amount not exceeding $1 435 000; plus

(B) an amount not exceeding $71 800 for every day during which the breach continues; or

(c) in the case a breach of a civil penalty provision prescribed by the Regulations for the purposes of this paragraph—

(i) if the breach is by a natural person—an amount not exceeding $500 000;

(ii) if the breach is by a body corporate—an amount not exceeding the greater of the following—

(A) $10 000 000;

(B) if the Court can determine the value of any benefit reasonably attributable to the breach of the civil penalty provision that the body corporate, and any body corporate related to the body corporate, has obtained, directly or indirectly—3 times the value of that benefit;

(C) if the Court cannot determine the value of the benefit—10% of the annual turnover of the body corporate during the 12-month period ending at the end of the month in which the body corporate breached, or began breaching, the civil penalty provision.

Note—

See Schedule 2 clause 47A, which provides for the amounts specified in this subsection to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

(2) Subsection (1)(c)(ii)(B) or (C) will only apply in a particular case if the AER, in applying for an order under section 231(2)(a), requests that those provisions be applied in that particular case.

s 3A: Ins 2020 No 37, sec 48.

4 Meaning of conduct provision

4 Meaning of conduct provision

A conduct provision is—

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

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

(c) a declared system provision that is prescribed by or under the application Act of the adoptive jurisdiction to be a conduct provision.

Table

| Item | Provision | | A1 | Section 91BP | | A2 | Section 91BRF | | A3 | Section 91BRG | | 1 | Section 133 | | 2 | (Repealed) | | 3 | Section 135 | | 4 | Section 136 | | 5 | Section 147 | | 6 | Section 148 | | 7 | (Repealed) |

s 4: Am 2009 No 30, sec 8; 2009 No 46, sec 6; 2022 No 21, sec 14.

5 Meaning of prospective user

5 Meaning of prospective user

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

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

(a) a contract; or

(b) an access determination.

s 5: Am 2022 No 21, sec 15.

6 Meaning of regulatory obligation or requirement

6 Meaning of regulatory obligation or requirement

(1) A regulatory obligation or requirement is—

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

(i) a pipeline safety duty; or

(ii) a pipeline reliability standard; or

(iii) a pipeline service standard; or

(b) an obligation or requirement under—

(i) this Law or the Rules; or

(ia) the National Energy Retail Law or the National Energy Retail Rules; or

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

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

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

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

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

(a) for a breach of—

(i) a pipeline safety duty; or

(ii) a pipeline reliability standard; or

(iii) a pipeline service standard; or

(b) under this Law or the Rules, the National Energy Retail Law or the National Energy Retail Rules1 or an Act or an instrument referred to in subsection (1)(b)(ii) to (v).

Notes—

s 6: Am 2011 No 7, sec 51.

7 Meaning of regulatory payment

7 Meaning of regulatory payment

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

(a) a pipeline reliability standard; or

(b) a pipeline service standard,

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

Note—

See also section 24(2)(b).

8 Meaning of service provider

8 Meaning of service provider

(1) A service provider is a person who—

(a) owns, controls or operates; or

(b) intends to own, control or operate,

a pipeline or any part of a pipeline.

Note—

A service provider must not provide a pipeline service by means of a pipeline unless the service provider is a legal entity of a specified kind: see section 131.

(2) If AEMO controls or operates (without at the same time owning) a pipeline or any part of a pipeline, AEMO is not for that reason to be taken to be a service provider for the purposes of this Law.

s 8: Am 2009 No 30, sec 9; 2022 No 21, sec 16.

8AA Meaning of transportation service provider

8AA Meaning of transportation service provider

If AEMO controls or operates (without at the same time owning) a compression service facility or another facility of a type prescribed by the Regulations for the purposes of paragraph (c) of the definition of transportation facility in section 2, AEMO is not for that reason to be taken to be a transportation service provider for the purposes of this Law.

s 8AA: Ins 2018 No 23, sec 5.

8AB Meaning of small shipper

8AB Meaning of small shipper

(1) A small shipper is a user or prospective user—

(a) who is, or seeks to be, a party to a contract with a service provider for the provision of a pipeline service by means of a pipeline; and

(b) for whom the total daily pipeline capacity right provided, or sought to be provided, under 1 or more contracts with the same service provider and by means of the same pipeline is not more than—

(i) the daily pipeline capacity right prescribed for this definition by the Regulations; or

(ii) if no daily pipeline capacity right is prescribed by the Regulations, the lesser of the following amounts—

(A) 5 terajoules per day;

(B) 20% of the pipeline’s nameplate rating.

(2) However, a small shipper does not include a corporation with a market capitalisation of more than $500 000 000 or a related body corporate of the corporation.

Note—

See also section 19A in relation to related bodies corporate.

(3) In this section—

nameplate rating, in relation to a pipeline, means the maximum daily capacity of the pipeline under normal operating conditions.

s 8AB: Ins 2022 No 21, sec 17.

8A Nominated distributors

8A Nominated distributors

(1) A local regulation may—

(a) nominate an entity, being an entity that is licensed or otherwise authorised under the jurisdictional gas legislation of that jurisdiction to operate a distribution pipeline that is not a scheme pipeline, as an entity to which this section applies (the nominated distributor); and

(b) apply to the nominated distributor specified provisions of the Rules that relate to the following matters—

(i) the connection of premises of retail customers;

(ii) retail support obligations between distributors and retailers;

(iii) credit support arrangements between distributors and retailers.

(2) The application of any such specified provisions of the Rules to the nominated distributor is subject to such modifications as may be specified in the local regulation.

(3) The nominated distributor—

(a) must comply with the Rules to the extent that the Rules are applied by the local regulation to the nominated distributor; and

(b) may, to the extent that the Rules apply to the nominated distributor, be proceeded against under this Law for any breach of those Rules.

(4) A nomination of an entity by a local regulation may be made for—

(a) the whole or a specified part of the geographical area of a jurisdiction; or

(b) the whole or a specified part of the distribution pipeline that is operated by the entity,

or for both.

(5) The Minister responsible for administering the application Act (other than the application Act of South Australia) under which a local regulation referred to in this section is made is to make arrangements for notice of the making and publication of the regulation to be published for information in the South Australian Government Gazette.

s 8A: Ins 2011 No 7, sec 52. Am 2022 No 21, sec 18; 2023 No 36, sec 8.

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

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

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

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

s 9: Am 2022 No 21, sec 19.

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

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

(1) This section applies if—

(a) more than 1 person (a group) carries out a controlling facility activity in respect of a covered gas industry facility (or part of a covered gas industry facility); and

(b) under this Law or the Rules a person who carries out a controlling facility activity in respect of the facility (or part of the facility) mentioned in paragraph (a) is required or allowed to do a thing.

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

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

(4) This section does not apply to a thing required or allowed to be done under section 131, Chapter 4 Part 2 or section 201, 202, 204, 228K or 228L.

(5) In this section—

controlling facility activity means—

(a) in relation to a pipeline—own, control or operate, or intend to own, control or operate, the pipeline (or part of the pipeline); or

(b) in relation to any other covered gas industry facility—own, control or operate the covered gas industry facility (or part of the facility).

s 10: Am 2018 No 23, sec 6; 2022 No 3, sec 5; 2023 No 36, sec 9.

11 Local agents of foreign service providers

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

12 Commissioning of a pipeline

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

s 12: Am 2023 No 36, sec 10.

13 Pipeline classification criterion

13 Pipeline classification criterion

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

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

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

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

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

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

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

(d) the diameter of the pipeline;

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

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

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

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

(i) the type of pipeline licence or authorisation that has been obtained in respect of the pipeline under jurisdictional gas legislation.

s 13: Am 2022 No 21, sec 20.

14 Local regulations may exempt pipeline

14 Local regulations may exempt pipeline

(1) A local regulation may declare a pipeline, or a proposed pipeline, to be a remote pipeline if the pipeline—

(a) is, or will be, hauling covered gas other than natural gas or a natural gas equivalent, as defined in the National Energy Retail Law; and

(b) is, or will be, wholly within the jurisdiction for which the regulation is made; and

(c) is not, or will not be, interconnected in any way with the system of transmission pipelines and distribution pipelines used to convey gas within and between participating jurisdictions.

(2) A remote pipeline, and the service provider for the pipeline (but only in respect of the remote pipeline) is exempt from the following—

(a) section 91DB;

(b) Chapter 3;

(c) Chapter 4;

(d) Chapter 5;

(e) section 223;

(f) Chapter 7A.

(3) Before recommending the making of a local regulation declaring a pipeline or a proposed pipeline to be a remote pipeline, the responsible Minister of the participating jurisdiction must have regard to the national gas objective.

(4) A pipeline or a proposed pipeline ceases, with immediate effect, to be a remote pipeline if—

(a) 1 or more of the requirements in subsection (1) ceases to apply to the pipeline; or

(b) the local regulation declaring the pipeline to be a remote pipeline is repealed.

s 14: Rep 2022 No 21, sec 21. Ins 2023 No 36, sec 11.

15

15 (Repealed)

16 Form of regulation factors

16 Form of regulation factors

The form of regulation factors are—

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

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

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

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

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

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

(g) (Repealed)

s 16: Am 2022 No 21, sec 22; 2023 No 36, sec 12.

17 Effect of separate and consolidated access arrangements in certain cases

17 Effect of separate and consolidated access arrangements in certain cases

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

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

(a) by which pipeline services are provided; and

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

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

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

s 17: Am 2022 No 21, sec 23.

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

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

(1) Subsection (2) applies in relation to an extension to a scheme pipeline if, by operation of the extension and expansion requirements under an applicable access arrangement, the applicable access arrangement will apply to pipeline services provided by means of the scheme pipeline as extended.

(2) For the purposes of this Law—

(a) the extension to the scheme pipeline must be taken to be part of the scheme pipeline; and

(b) the pipeline as extended must be taken to be a scheme pipeline.

(3) Also, for the purposes of this Law—

(a) an expansion of the capacity of a scheme pipeline must be taken to be part of the scheme pipeline; and

(b) the pipeline as expanded must be taken to be a scheme pipeline.

s 18: Subst 2022 No 21, sec 24.

19 Expansions of the capacity of non-scheme pipelines to be taken to be part of non-scheme pipeline

19 Expansions of the capacity of non-scheme pipelines to be taken to be part of non-scheme pipeline

For the purposes of this Law—

(a) an expansion of the capacity of a non-scheme pipeline must be taken to be part of the non-scheme pipeline; and

(b) the pipeline as expanded must be taken to be a non-scheme pipeline.

s 19: Subst 2022 No 21, sec 24.

19A Related bodies corporate

19A Related bodies corporate

For the purposes of this Law, 2 or more bodies corporate are related to each other if they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth.

s 19A: Ins 2020 No 37, sec 49.

20 Interpretation generally

20 Interpretation generally

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

Part 2 Participating jurisdictions

Part 2 Participating jurisdictions

21 Participating jurisdictions

21 Participating jurisdictions

(1) The following jurisdictions are participating jurisdictions for the purposes of this Law—

(a) the State of South Australia; and

(b) the Commonwealth, a Territory or a State (other than South Australia) if there is in force, as part of the law of that jurisdiction, a law that applies this Law or any part of this Law (whether by a law that corresponds to Part 2 of the National Gas (South Australia) Act 2008 of South Australia or by some other law).

(2) If a law of a participating jurisdiction referred to in subsection (1)(b) ceases to be in force, the jurisdiction ceases to be a participating jurisdiction.

s 21: Subst 2021 No 3, sec 34.

22 Ministers of participating jurisdictions

22 Ministers of participating jurisdictions

The Ministers of the participating jurisdictions are—

(a) the South Australian Minister; and

(b) the Ministers of the Crown in right of the other participating jurisdictions administering the laws of those jurisdictions that apply this Law or any part of this Law (whether by a law that corresponds to Part 2 of the National Gas (South Australia) Act 2008 of South Australia or by some other law).

(c), (d) (Repealed)

s 22: Am 2009 No 30, sec 10; 2021 No 3, sec 35; 2022 No 21, sec 25.

Part 3 National gas objective and principles

Part 3 National gas objective and principles

Division 1 National gas objective

Division 1 National gas objective

23 National gas objective

23 National gas objective

The objective of this Law is to promote efficient investment in, and efficient operation and use of, covered gas services for the long term interests of consumers of covered gas with respect to—

(a) price, quality, safety, reliability and security of supply of covered gas; and

(b) the achievement of targets set by a participating jurisdiction—

(i) for reducing Australia’s greenhouse gas emissions; or

(ii) that are likely to contribute to reducing Australia’s greenhouse gas emissions.

Note—

The AEMC must publish targets in a targets statement: see section 72A.

s 23: Am 2023 No 26, sec 14; 2023 No 36, sec 13.

23A Regulations may prescribe matters for national gas objective

23A Regulations may prescribe matters for national gas objective

Without limiting Part 3 of the National Gas (South Australia) Act 2008 of South Australia, the Regulations may make provision about a matter relating to the achievement of targets mentioned in section 23(b) of this Law.

s 23A: Am 2023 No 26, sec 15.

Division 2 Revenue and pricing principles relating to scheme pipelines

Division 2 Revenue and pricing principles relating to scheme pipelines

ch 1, pt 3, div 2, hdg: Am 2022 No 21, sec 26.

24 Revenue and pricing principles relating to scheme pipelines

24 Revenue and pricing principles relating to scheme pipelines

(1) The revenue and pricing principles that apply in relation to a pipeline service provided by means of a scheme pipeline are the principles set out in subsections (2) to (7).

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

(a) providing reference services; and

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

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

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

(b) the efficient provision of pipeline services; and

(c) the efficient use of the pipeline.

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

(a) in any previous—

(i) access arrangement decision; or

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

(b) in the Rules.

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

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

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

s 24: Am 2022 No 21, sec 27.

Division 2A Innovative trial principles

Division 2A Innovative trial principles

ch 1, pt 3, div 2A: Ins 2022 No 22, sec 33.

24A Innovative trial principles

24A Innovative trial principles

The following principles (the innovative trial principles) must be taken into account in determining whether a trial project is genuinely innovative in connection with granting a trial waiver or making a trial Rule relating to a trial project—

(a) whether the trial project is focused on developing new or materially improved covered gas services;

(b) whether the trial project is likely to contribute to the achievement of the national gas objective;

(c) whether the trial project is able to demonstrate a reasonable prospect of giving rise to materially improved services and outcomes for consumers of covered gas;

(d) whether the trial project maintains adequate consumer protections, including whether the trial project may involve risks to consumers and (if so), how those risks might be mitigated;

(e) whether the trial project is unable to proceed under the existing regulatory framework;

(f) whether the trial project has moved beyond research and development stages but is not yet established, or of sufficient maturity, size or otherwise commercially ready, to attract investment;

(g) whether the trial project may negatively impact AEMO's operation of systems relating to covered gas (including AEMO's performance of its declared system functions), and markets and auctions for covered gas and, if there are impacts, how those impacts can be mitigated;

(h) whether the trial project may impact on competition in a competitive sector of a market for covered gas;

(ha) whether the licences, authorisations and consents required for the trial project under jurisdictional gas legislation have been obtained or will be obtained;

(i) any other principle prescribed by the Regulations.

s 24A: Ins 2022 No 22, sec 33. Am 2023 No 36, sec 14.

pt 5 (s 26A): Ins 2011 No 7, sec 53.

Division 3 MCE policy principles

Division 3 MCE policy principles

25 MCE statements of 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

Part 4 Operation and effect of National Gas Rules

26 National Gas Rules to have force of law

26 National Gas Rules to have force of law

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

Part 5 Corporations Act displacement

Part 5 Corporations Act displacement

26A Corporations Act displacement

26A Corporations Act displacement

(1) The Regulations may declare a relevant provision to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of Chapter 5 of that Act.

(2) In this section—

relevant provision means a provision of the Rules that relates to any of the following—

(a) the functions of the AEMO under procedures relating to defaults by retailers;

(b) the application (or drawing on) of credit support held by a distributor in respect of a retailer who is the subject of a RoLR event within the meaning of Part 6 of the National Energy Retail Law.

pt 5 (s 26A): Ins 2011 No 7, sec 53.

27 Functions and powers of the AER

27 Functions and powers of the AER

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

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

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

(ba) without limiting paragraphs (a) and (b), in relation to a person undertaking a trial project under a trial Rule or trial waiver, to monitor the conduct and outcomes of the trial project and investigate breaches or possible breaches by the person of—

(i) this Law, the Regulations and the Rules; and

(ii) in particular—

(A) in the case of a person undertaking a trial project under a trial Rule—the trial Rule and any requirements imposed by the AEMC under section 314B; and

(B) in the case of a person undertaking a trial project under a trial waiver—the trial waiver and any conditions to which the trial waiver is subject; and

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

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

(daa) to make—

(i) scheme pipeline determinations; and

(ii) scheme pipeline revocation determinations; and

(iii) greenfields incentive determinations; and

(iv) greenfields price protection determinations; and

(dab) to monitor service providers’ behaviour in relation to particular matters, including, for example, the prices charged by service providers for pipeline services; and

(da) to make a rate of return instrument; and

(e) AER economic regulatory functions or powers; and

(ea) to make and amend the Operational Transportation Service Code in accordance with this Law and the Rules; and

(eb) the AER trial waiver functions; and

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

(fa) in relation to goods or services in the covered gas industry—

(i) to prepare and publish, in accordance with the Rules, aggregated and anonymised information or data about prices for those goods or services; and

(ii) other monitoring, analysing or reporting functions that relate to prices for those goods or services conferred on the AER by this Law or the Rules; and

(iii) for the purposes of subparagraph (i) or (ii)—to collect and analyse information or data about prices from sources determined by the AER or specified in the Rules; and

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

(ga) AER wholesale market monitoring functions and AER wholesale market reporting functions; and

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

(1a) The AER has the following functions and powers in relation to the Procedures—

(a) to investigate breaches or possible breaches of the Procedures referred to the AER by AEMO; and

(b) to institute and conduct proceedings in relation to breaches of the Procedures referred to the AER by AEMO; and

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

(d) to approve, in consultation with AEMO, compliance programs relating to compliance by Registered participants with the Procedures.

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

s 27: Am 2009 No 30, sec 11; 2018 No 23, sec 7; 2018 No 33, sec 14; 2022 No 3, sec 6; 2022 No 21, sec 28; 2022 No 22, sec 34; 2023 No 36, sec 15; 2024 No 12, sec 14.

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

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

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

(a) perform or exercise that function or power in a manner that will or is likely to contribute to the achievement of the national gas objective; and

(b) if the AER is making a designated regulatory decision—

(i) ensure that—

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

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

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

are, in accordance with the Rules—

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

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

(ii) specify—

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

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

(iii) (Repealed)

(2) In addition, the AER—

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

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

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

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

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

(4) In this section—

user or consumer association means an association or body (whether incorporated or unincorporated)—

(a) the members of which include more than 1 user, prospective user or end user; and

(b) that represents and promotes the interests of those members in relation to the provision of covered gas services;

user or consumer interest group means an association or body (whether incorporated or unincorporated)—

(a) that has, as an object or purpose, the object or purpose of representing and promoting the interests of users, prospective users or end users of covered gas services; but

(b) the members of which need not include a user, prospective user or end user.

s 28: Am 2013 No 79, sec 20; 2021 No 3, sec 36; 2022 No 21, sec 29; 2023 No 36, sec 16.

29 Delegations

29 Delegations

Any delegation by the AER under section 44AAH of the Competition and Consumer Act 2010 of the Commonwealth extends to, and has effect for the purposes of, this Law, the Regulations and the Rules.

30 Confidentiality

30 Confidentiality

Section 44AAF of the Competition and Consumer Act 2010 of the Commonwealth has effect for the purposes of this Law, the Regulations and the Rules as if it formed part of this Law.

Note—

See also Chapter 10 Part 2 Division 1.

Division 1AA Wholesale gas markets—AER monitoring and reporting functions

Division 1AA Wholesale gas markets—AER monitoring and reporting functions

ch 2, pt 1, div 1AA: Ins 2024 No 12, sec 15.

ch.2-pt.1-div.1AA-sdiv.1 Preliminary

Subdivision 1 Preliminary

ch 2, pt 1, div 1AA, sdiv 1: Ins 2024 No 12, sec 15.

30AA Definitions

30AA Definitions

In this Division—

bilateral trading agreement means an agreement, entered into outside a wholesale gas market, to supply covered gas—

(a) to a wholesale gas market participant; or

(b) to an end user—

(i) other than by a retailer; or

(ii) by a retailer in a quantity exceeding the amount prescribed by the wholesale market monitoring guidelines;

effective competition has the meaning given by section 30AB;

financial risk management product means a contract or other arrangement, entered into by a wholesale gas market participant, to manage financial risk including, without limitation, risks associated with the following—

(a) volatility in the price for 1 or more covered gases in a wholesale gas market;

(b) volatility in supply and demand in a wholesale gas market;

(c) volatility in the price of services involved in the extraction, refinement or processing, transportation or storage of 1 or more covered gases;

gas contract means an agreement, entered into by a wholesale gas market participant, however described and whether coming into existence before or after the commencement of this section that relates to 1 or more of the following—

(a) the supply of covered gas;

(b) the purchase of covered gas;

(c) the transportation of covered gas;

(d) the storage of covered gas;

(e) the refining or processing, including compression and blending, of covered gas;

(f) relating to emissions produced or avoided in the extraction, refining or processing, supply or use of covered gas;

(g) a function or process prescribed by the Regulations or the Rules;

relevant agreement means the following—

(a) a bilateral trading agreement;

(b) a financial risk management product;

(c) a gas contract;

wholesale gas market means—

(a) a wholesale market for covered gas, regulated under this Law and the Rules, including the following—

(i) a declared wholesale gas market;

(ii) a short term trading market;

(iii) a gas trading exchange; or

(b) a wholesale market for the transportation or storage of covered gas including a capacity auction; or

(c) a wholesale market prescribed by the Regulations;

wholesale gas market participant means person who is 1 or more of the following—

(a) a person who is registered on the Gas Bulletin Board;

(b) a person who supplies covered gas to or withdraws covered gas from a gas trading exchange administered by AEMO;

(c) a Registered participant;

(d) a member of a class of persons prescribed by the Regulations or the Rules;

wholesale market monitoring guidelines means the guidelines prepared under section 30AT.

s 30AA: Ins 2024 No 12, sec 15.

30AB Meaning of effective competition

30AB Meaning of effective competition

For the purposes of this Division, the AER must, in assessing whether there is effective competition within a wholesale gas market, have regard to—

(a) whether—

(i) there are active competitors in the market and whether those competitors hold a reasonably sustainable position in the market; or

(ii) there is merely the threat of competition in the market; and

(b) whether prices are determined on a long term basis by underlying costs rather than the existence of market power, even though a wholesale gas market participant may hold a substantial degree of market power from time to time; and

(c) whether barriers to entry into the market are sufficiently low so that a substantial degree of market power may only be held by a wholesale gas market participant on a temporary basis; and

(d) whether there is independent rivalry in all dimensions of the price, product or service offered in the market; and

(e) other matters the AER considers relevant.

s 30AB: Ins 2024 No 12, sec 15.

30AC AER wholesale market monitoring and reporting functions

30AC AER wholesale market monitoring and reporting functions

(1) The AER wholesale market monitoring functions are as follows—

(a) to, in accordance with this Law and the Rules, regularly and systematically monitor and review—

(i) the performance of wholesale gas markets; and

(ii) the operation and effect on wholesale gas markets of financial risk management products; and

(iii) whether the availability of financial risk management products has an effect on competition within, and the efficient functioning of, wholesale gas markets; and

(iv) bilateral trading agreements, including their effect on wholesale gas markets;

(b) in connection with paragraph (a)—to identify and analyse whether, for a particular wholesale gas market—

(i) there is effective competition within the market; and

(ii) there are features of the market that may be detrimental to effective competition within the market; and

(iii) there are features of the market that may be impacting detrimentally on the efficient functioning of the market and, if so, the extent of the inefficiency; and

(iv) there are features of the market that may be impacting detrimentally on the achievement of the national gas objective; and

(v) bilateral trading agreements have an impact on the efficient functioning of the market;

(c) other monitoring or analysing functions, conferred on the AER by the Rules, relating to the following matters within a wholesale gas market—

(i) offers;

(ii) prices, including forecast and actual prices and bidding.

(2) The AER wholesale market reporting functions are as follows—

(a) to prepare, at least once every 2 years, a report on the performance of the AER wholesale market monitoring functions (a monitoring report);

(b) to provide, as the AER thinks fit, advice to the MCE on the results of the performance of the AER wholesale market monitoring functions, including advice as to—

(i) whether the results identify a need for a legislative, regulatory or other response to address systemic or other features of a wholesale gas market that may—

(A) be detrimental to effective competition within the market; or

(B) detrimentally impact on the efficient functioning of the market; and

(ii) limitations on the AER’s ability to communicate with relevant persons about the performance of the AER wholesale market monitoring functions;

(c) other reporting requirements, conferred on the AER by the Rules, relating to the AER wholesale market monitoring functions.

(3) A monitoring report must, for a wholesale gas market monitored during the period to which the report relates—

(a) be for a monitoring period of at least 5 years; and

(b) contain a discussion and analysis of—

(i) the results of the performance of the AER wholesale market monitoring functions for the relevant period; and

(ii) features of the market with a detrimental impact on the efficient functioning of the market and the achievement of the national gas objective, including, but not limited to, significant barriers to entry; and

(iii) the effect of bilateral trading agreements on the efficient functioning of the market; and

(iv) structural features of the covered gas industry that generate concerns that there may not be effective competition within the market; and

(v) inefficiencies in the market, their causes and whether conditions in the market are such that the inefficiencies are likely to impact detrimentally, in the long term, on the efficient functioning of the market; and

(vi) the monitoring methodology applied and the results of indicators, tests and calculations performed; and

(vii) other matters of a long term nature relevant to effective competition within the market, including, for example—

(A) observations relating to planned increases in pipeline capacity; and

(B) trends in demand for covered gases; and

(C) trends in the uptake of alternative sources of energy.

(4) The AER must publish a monitoring report on its website.

(5) Before publishing a monitoring report the AER must consult with relevant stakeholders.

(6) Despite subsection (3)(a), a report prepared within the 5 years after the commencement of this section must relate to the period commencing on the day this section commences.

s 30AC: Ins 2024 No 12, sec 15.

30AD Information to be treated as confidential

30AD Information to be treated as confidential

Information obtained by the AER under this Division is taken to have been given to the AER in confidence, whether or not a claim of confidentiality is made.

s 30AD: Ins 2024 No 12, sec 15.

30AE Redaction of information

30AE Redaction of information

(1) When obtaining a relevant agreement or information about a relevant agreement for the purposes of a function under this Division, the AER must consider a request to omit information that would identify a party to the agreement who is not a wholesale gas market participant.

(2) The AER must grant the request unless satisfied that omitting the information is likely to materially affect the AER’s ability to undertake 1 or more functions under this Division.

s 30AE: Ins 2024 No 12, sec 15.

ch.2-pt.1-div.1AA-sdiv.2 Use of general information gathering powers

Subdivision 2 Use of general information gathering powers

ch 2, pt 1, div 1AA, sdiv 2: Ins 2024 No 12, sec 15.

30AF Limits on use of section 42 information gathering powers

30AF Limits on use of section 42 information gathering powers

(1) In undertaking a function under this Division the AER must not use the powers under section 42 in respect of a relevant agreement that ceased to have effect more than 5 years before the commencement of this section.

(2) The Regulations or the Rules may provide that the powers under section 42 must not be used for a function under this Division for 1 or more classes of relevant agreement.

s 30AF: Ins 2024 No 12, sec 15.

30AG Matters to be considered before using section 42 information gathering powers

30AG Matters to be considered before using section 42 information gathering powers

Before using the powers under section 42 for a function under this Division, the AER must—

(a) be satisfied the information is reasonably required for the AER to carry out the function; and

(b) consider whether the information—

(i) is publicly available; or

(ii) can be obtained by the AER in another way.

s 30AG: Ins 2024 No 12, sec 15.

ch.2-pt.1-div.1AA-sdiv.3 Market monitoring information notices and market monitoring information orders

Subdivision 3 Market monitoring information notices and market monitoring information orders

ch 2, pt 1, div 1AA, sdiv 3: Ins 2024 No 12, sec 15.

30AH Definitions

30AH Definitions

In this Subdivision—

market monitoring information notice means a notice prepared and served by the AER in accordance with this Subdivision requiring the person named in the notice to do 1 or more of the following—

(a) give the AER the information or a relevant agreement specified in the notice;

(b) prepare, maintain and keep information specified in the notice in a manner and form specified in the notice;

market monitoring information order means an order made by the AER in accordance with this Subdivision requiring each person of a class specified in the order to do 1 or more of the following—

(a) give the AER the information or a relevant agreement specified in the order;

(b) prepare, maintain and keep information specified in the order in a manner and form specified in the order.

s 30AH: Ins 2024 No 12, sec 15.

30AI Urgent notices and urgent orders

30AI Urgent notices and urgent orders

The AER may specify a market monitoring information notice or a market monitoring information order as urgent if the AER reasonably believes that access to the relevant information is time critical.

s 30AI: Ins 2024 No 12, sec 15.

30AJ Content of notices and orders

30AJ Content of notices and orders

(1) A market monitoring information notice or a market monitoring information order must specify the following—

(a) the information that must be prepared, maintained and kept;

(b) the information or agreement that must be given to the AER;

(c) if the notice or order requires information to be prepared, maintained and kept—the AER’s reasons for requiring information to be prepared, maintained and kept;

(d) if the notice or order requires information or an agreement to be given to the AER—

(i) the reasons the AER requires the information or agreement; and

(ii) the date by which the information or agreement must be given to the AER;

(e) the period in which the notice or order operates.

(2) A market monitoring information notice or a market monitoring information order may specify the following—

(a) the form in which information or an agreement is to be given to the AER;

(b) the way the information or agreement is to be given to the AER.

s 30AJ: Ins 2024 No 12, sec 15.

30AK Notices and orders may be made for both past and future information

30AK Notices and orders may be made for both past and future information

(1) A market monitoring information notice or a market monitoring information order may apply to 1 or more of the following—

(a) a period before the notice was served or the order was made;

(b) a period after the notice was served or the order was made.

(2) A market monitoring information notice or a market monitoring information order must not be used to obtain a relevant agreement, or information about a relevant agreement, that ceased to have effect more than 5 years before the commencement of this section.

s 30AK: Ins 2024 No 12, sec 15.

30AL Making and serving notices and orders

30AL Making and serving notices and orders

(1) The AER may, if it considers it reasonably necessary for the performance of its functions under this Division—

(a) serve a market monitoring information notice on a person named in the notice; and

(b) make a market monitoring information order.

(2) The AER must, when considering if it is reasonably necessary to serve a market monitoring information notice or make a market monitoring information order—

(a) be satisfied the AER requires the information or agreement to carry out a wholesale market monitoring function; and

(b) consider the costs that are likely to be incurred by a person responding to the notice or order; and

(c) consider whether the information—

(i) is publicly available; or

(ii) can be obtained by the AER in another way.

(3) A market monitoring information notice or a market monitoring information order must not be used for the purpose of—

(a) investigating a breach or possible breach of this Law, the Regulations or the Rules; or

(b) commencing or conducting proceedings for a breach or possible breach of this Law, the Regulations or the Rules; or

(c) commencing or conducting an appeal from a decision in proceedings for a breach or possible breach of this Law, the Regulations or the Rules; or

(d) responding to an application for review of a decision of the AER under Chapter 8 Part 5.

(4) A market monitoring information order must be made in accordance with the Rules.

(5) The Regulations or the Rules may provide that a market monitoring information notice or a market monitoring information order must not be used to obtain the following—

(a) 1 or more classes of relevant agreement;

(b) information about 1 or more classes of relevant agreement.

s 30AL: Ins 2024 No 12, sec 15.

30AM AER must consult before making order

30AM AER must consult before making order

(1) Before making a market monitoring information order, the AER must consult the public.

(2) Consultation must be undertaken in accordance with the Rules.

s 30AM: Ins 2024 No 12, sec 15.

30AN Publication of orders

30AN Publication of orders

The AER must publish a market monitoring information order on the AER’s website as soon as practicable after the order is made.

s 30AN: Ins 2024 No 12, sec 15.

30AO Opportunity to be heard before notice served

30AO Opportunity to be heard before notice served

(1) Before serving a market monitoring information notice, the AER must give the person on whom the AER intends to serve the notice a draft of the notice and an opportunity to make a submission on the draft notice.

(2) A draft notice must state—

(a) whether the notice is to be issued as a standard notice or an urgent notice; and

(b) for an urgent notice—the reasons the AER believes access to the relevant information is time critical.

(3) A submission must be made—

(a) for a standard notice—within the longer of the following—

(i) 20 business days after the draft notice is given to the person;

(ii) the period stated in the notice; or

(b) for an urgent notice—within the period stated in the draft notice, being at least 5 business days and not more than 10 business days after the draft notice is given to the person.

(4) A submission made within the time periods provided for in subsection (3) must be considered by the AER before serving a market monitoring information notice on a person.

s 30AO: Ins 2024 No 12, sec 15.

30AP Compliance with notice

30AP Compliance with notice

(1) A person who is named in and served with a market monitoring information notice must comply with the notice.

Note—

This section is a civil penalty provision.

(2) If a market monitoring information notice names 2 or more related bodies corporate, a notice served on the holding company is taken to have been served on each of the named related bodies corporate.

s 30AP: Ins 2024 No 12, sec 15.

30AQ Compliance with order

30AQ Compliance with order

(1) A person who is a member of a class of persons specified in a market monitoring information order must comply with the order.

Note—

This section is a civil penalty provision.

(2) The AER may, by written notice, exempt a person from compliance with an order—

(a) in whole or part; and

(b) conditionally or unconditionally.

s 30AQ: Ins 2024 No 12, sec 15.

30AR Certification of compliance by statutory declaration

30AR Certification of compliance by statutory declaration

(1) The AER may direct the recipient of a market monitoring information notice or market monitoring information order to verify that the recipient’s response to the notice or order is accurate and comprehensive by way of a statutory declaration.

(2) A direction may require the statutory declaration to be given by a named officer of the recipient or the holder of a specified office for the recipient.

(3) A direction must be given in the relevant market monitoring information notice or market monitoring information order.

(4) A failure to comply with a direction given under this section is taken to be a failure to comply with the relevant market monitoring information notice or market monitoring information order.

s 30AR: Ins 2024 No 12, sec 15.

30AS Subdivision does not limit powers under Division 3

30AS Subdivision does not limit powers under Division 3

This Subdivision does not limit the operation of Division 3.

s 30AS: Ins 2024 No 12, sec 15.

ch.2-pt.1-div.1AA-sdiv.4 Miscellaneous

Subdivision 4 Miscellaneous

ch 2, pt 1, div 1AA, sdiv 4: Ins 2024 No 12, sec 15.

30AT Wholesale market monitoring guidelines

30AT Wholesale market monitoring guidelines

(1) The AER must prepare guidelines about the following—

(a) the scope of the AER wholesale market monitoring functions;

(b) the collection of information for the purposes of this Division;

(c) the publication and reporting of information under this Division.

(2) Without limiting what may be included in wholesale market monitoring guidelines, the guidelines must include the following—

(a) information about the things the AER proposes to consider in assessing—

(i) effective competition in wholesale gas markets; and

(ii) the effective functioning of wholesale gas markets;

(b) a summary of the compliance obligations of persons who hold information;

(c) the processes the AER proposes to adopt in requesting information, including processes designed to minimise the time and resources wholesale gas market participants will devote to responding to a request;

(d) the type of information the AER expects to routinely request and how frequently it will request that information;

(e) the type of information the AER does not expect to request;

(f) classes of relevant agreements the AER does not expect to request;

(g) the formats in which the AER expects information to be submitted;

(h) a general outline of the way the AER will ensure that commercially sensitive information obtained for wholesale market monitoring functions is kept securely;

(i) other matters prescribed by the Regulations or the Rules.

(3) Before making wholesale market monitoring guidelines the AER must consult in accordance with the Rules.

(4) Wholesale market monitoring guidelines must be—

(a) made in accordance with the Rules; and

(b) published on the AER website within 6 months after commencement of this section.

s 30AT: Ins 2024 No 12, sec 15.

30AU Review of wholesale market monitoring powers

30AU Review of wholesale market monitoring powers

The MCE is to review the operation of this Division as soon as possible after the period of 4 years and 6 months after the commencement of this section.

s 30AU: Ins 2024 No 12, sec 15.

Division 1A Rate of return instrument

Division 1A Rate of return instrument

ch 2, pt 1, div 1A: Ins 2018 No 33, sec 15.

ch.2-pt.1-div.1A-sdiv.1 Preliminary

Subdivision 1 Preliminary

ch 2, pt 1, div 1A, sdiv 1: Ins 2018 No 33, sec 15.

30A Definitions

30A Definitions

In this Division—

consumer reference group, for making a rate of return instrument, see section 30H(1)(a);

explanatory information, for a rate of return instrument, means information about the content of the instrument, including (but not limited to) information explaining—

(a) the reasons for the rate of return on capital or the value of imputation credits under the instrument; and

(b) how the stated value, or the way to calculate the rate or value, was decided; and

(c) if the instrument replaces another instrument—

(i) the differences (if any) between the instrument and the replaced instrument; and

(ii) the reasons for any differences; and,

(d) why the AER is satisfied the instrument will, or is most likely to, contribute to the achievement of the national gas objective to the greatest degree; and

(e) how the AER had regard to the following in making the instrument—

(i) the revenue and pricing principles;

(ii) the matters mentioned in section 30G;

(iii) estimation methods, financial models, market data and other evidence relevant to making the instrument;

(iv) prevailing conditions in the market for equity funds;

(v) the interrelationships between financial parameters used, or to be used, in relation to deciding the rate or value.

s 30A: Ins 2018 No 33, sec 15.

30B Rate of return instrument has force of law

30B Rate of return instrument has force of law

(1) A rate of return instrument has the force of law in this jurisdiction.

(2) An Act of this jurisdiction regulating the making of subordinate legislation does not apply to a rate of return instrument.

s 30B: Ins 2018 No 33, sec 15.

30C Rate of return instrument is binding on AER and scheme pipeline service providers

30C Rate of return instrument is binding on AER and scheme pipeline service providers

A rate of return instrument is binding on—

(a) the AER in relation to the performance or exercise of an AER economic regulatory function or power; and

(b) each scheme pipeline service provider in relation to a matter relevant to the performance or exercise of an AER economic regulatory function or power.

s 30C: Ins 2018 No 33, sec 15. Am 2022 No 21, sec 30.

ch.2-pt.1-div.1A-sdiv.2 Requirement to make rate of return instrument

Subdivision 2 Requirement to make rate of return instrument

ch 2, pt 1, div 1A, sdiv 2: Ins 2018 No 33, sec 15.

30D AER to make rate of return instrument

30D AER to make rate of return instrument

(1) This section applies if a rate of return on capital or the value of imputation credits is required for performing or exercising an AER economic regulatory function or power.

(2) The AER must make an instrument (a rate of return instrument) stating—

(a) for a rate of return on capital—the way to calculate the rate; and

(b) for the value of imputation credits—the value or the way to calculate the value.

(3) The AER may make an instrument only if satisfied the instrument will, or is most likely to, contribute to the achievement of the national gas objective to the greatest degree.

(4) Subject to subsection (3), the way to calculate a rate of return on capital must include a weighted average of an allowed return on equity and an allowed return on debt.

(5) In making an instrument, the AER must have regard to—

(a) the revenue and pricing principles; and

(b) other information the AER considers appropriate.

s 30D: Ins 2018 No 33, sec 15.

30E Content of rate of return instrument

30E Content of rate of return instrument

(1) If a rate of return instrument states the value of imputation credits, the instrument must state a single value to apply in relation to all scheme pipeline service providers.

(2) If a rate of return instrument states a way to calculate the rate of return on capital or the value of imputation credits, the instrument must—

(a) provide for the same methodology to apply in relation to all scheme pipeline service providers in calculating the rate or value; and

(b) provide for the methodology to apply automatically without the exercise of any discretion by the AER.

Example for paragraph (b)—

The instrument can not include different methodologies or a band of values from which the AER could choose in applying the instrument.

(3) Subject to subsections (1) and (2), the instrument may include other matters the AER considers appropriate.

Example—

Matters to help a scheme pipeline service provider calculate a rate of return or the value of imputation credits.

s 30E: Ins 2018 No 33, sec 15. Am 2022 No 21, sec 31.

ch.2-pt.1-div.1A-sdiv.3 Consultation requirements

Subdivision 3 Consultation requirements

ch 2, pt 1, div 1A, sdiv 3: Ins 2018 No 33, sec 15.

30F Process for making rate of return instrument

30F Process for making rate of return instrument

Subject to this Division, the AER may make a rate of return instrument in the way it considers appropriate.

s 30F: Ins 2018 No 33, sec 15.

30G Other matters AER must have regard to in making instrument

30G Other matters AER must have regard to in making instrument

In making a rate of return instrument, the AER must also have regard to the following—

(a) advice, recommendations or submissions given by a consumer reference group;

(b) submissions made, and the report published, under section 30H;

(c) submissions made under section 30J;

(d) the report given by the independent panel under section 30K.

s 30G: Ins 2018 No 33, sec 15.

30H Requirements before publishing draft instrument

30H Requirements before publishing draft instrument

(1) Before publishing a draft rate of return instrument under this Subdivision, the AER must—

(a) establish a reference group to help the AER implement an effective consumer consultation process for making the proposed instrument (a consumer reference group); and

(b) publish a notice on its website—

(i) inviting persons to make a written submission to the AER about the proposed instrument; and

(ii) stating the period, not less than 28 days, within which a submission must be made; and

(c) seek concurrent expert opinions or evidence about the proposed instrument.

(2) A person may make a submission after the stated period only with the written approval of the AER.

(3) Subject to subsections (4) and (5), the AER may seek the expert opinions or evidence in the way it considers appropriate.

Example—

The AER might convene a conference of experts to identify key issues, and areas of dispute and agreement among the experts, about the content of the proposed instrument.

(4) The AER must call for nominations of eligible experts but may seek the expert opinions or evidence from any eligible expert.

(5) If practicable, the AER must seek the expert opinions or evidence from at least 3 eligible experts.

(6) The AER must publish on its website—

(a) submissions made under this section; and

(b) a report on the outcomes of seeking the expert opinions or evidence.

(7) In this section—

eligible expert means a person with qualifications or experience in a field the AER considers relevant to making a rate of return instrument.

Examples of relevant fields—

Finance, economics, law, consumer affairs, institutional investment.

s 30H: Ins 2018 No 33, sec 15.

30I Consumer reference group

30I Consumer reference group

(1) A consumer reference group for making a rate of return instrument—

(a) is to consist of the members appointed by the AER; and

(b) may carry out its activities, including giving advice or recommendations to the AER about the instrument, in the way it considers appropriate.

(2) Without limiting subsection (1)(b), the consumer reference group may—

(a) consult with consumers of covered gas; and

(b) facilitate consumer engagement in the process for making the instrument; and

(c) make written submissions to the AER about the content of the instrument and the process for making it.

(3) The AER must publish on its website any written advice, recommendations or submissions given to it by the consumer reference group.

s 30I: Ins 2018 No 33, sec 15. Am 2023 No 36, sec 17.

30J Publication of draft instrument and other information

30J Publication of draft instrument and other information

(1) The AER must, at least 6 months before making a rate of return instrument, publish on its website—

(a) a draft of the proposed instrument and the explanatory information for the instrument; and

(b) a notice—

(i) inviting persons to make a written submission to the AER about the proposed instrument; and

(ii) stating the period, not less than 28 days, within which a submission must be made.

(2) A person may make a submission after the stated period only with the written approval of the AER.

(3) The AER must publish submissions made under this section on its website.

s 30J: Ins 2018 No 33, sec 15.

30K Report about draft instrument by independent panel

30K Report about draft instrument by independent panel

(1) The AER must, as soon as practicable after publishing the draft instrument, establish an independent panel to give the AER a written report about the instrument.

(2) The panel—

(a) may carry out its activities, including giving the report, in the way it considers appropriate; but

(b) must seek to give the report by consensus.

(3) The panel must—

(a) consist of at least 3 members, appointed by the AER, who have qualifications or experience in a field the AER considers relevant to making a rate of return instrument; and

Examples of relevant fields—

Finance, economics, law, consumer affairs, institutional investment.

(b) give the report to the AER before the AER makes the instrument.

(4) The AER must take reasonable steps to minimise and manage any conflicts of interest a panel member may have in relation to making the instrument.

(5) The report must—

(a) include the panel’s assessment of the evidence and reasons supporting the rate of return on capital or the value of imputation credits under the instrument; and

(b) state whether the report is given by consensus.

(6) The AER must publish the report on its website.

s 30K: Ins 2018 No 33, sec 15.

30L Publication of explanatory information

30L Publication of explanatory information

The AER must publish explanatory information for a rate of return instrument on its website when the instrument is published under section 30N.

s 30L: Ins 2018 No 33, sec 15.

30M Failure to comply does not affect validity

30M Failure to comply does not affect validity

Failure to comply with this Subdivision does not invalidate or otherwise affect a rate of return instrument.

s 30M: Ins 2018 No 33, sec 15.

ch.2-pt.1-div.1A-sdiv.4 Publication, review and other matters

Subdivision 4 Publication, review and other matters

ch 2, pt 1, div 1A, sdiv 4: Ins 2018 No 33, sec 15.

30N Publication of rate of return instrument

30N Publication of rate of return instrument

After making a rate of return instrument, the AER must publish the instrument on its website.

Note—

See section 30L for the requirement to publish explanatory information for the instrument.

s 30N: Ins 2018 No 33, sec 15.

30O Commencement and duration of instrument

30O Commencement and duration of instrument

A rate of return instrument—

(a) commences on the day after it is published on the AER’s website; and

(b) remains in force until the end of the day it is replaced under section 30P.

s 30O: Ins 2018 No 33, sec 15.

30P Review and replacement of instrument

30P Review and replacement of instrument

(1) The AER must—

(a) review each rate of return instrument; and

(b) make a new rate of return instrument under this Division to replace the reviewed instrument.

(2) The AER must replace the reviewed instrument by publishing the new instrument on its website on the day that is—

(a) the fourth anniversary of the day the reviewed instrument was published; or

(b) if the day mentioned in paragraph (a) is not a business day—the first business day after that day.

s 30P: Ins 2018 No 33, sec 15.

30Q Application of instrument

30Q Application of instrument

(1) A rate of return instrument—

(a) applies for the purposes of an AER economic regulatory decision made after the commencement of the instrument; and

(b) does not affect an AER economic regulatory decision made before the commencement of the instrument.

(2) To remove any doubt, it is declared that the application of the instrument under this Law, including, for example, in making an access arrangement decision, is an AER economic regulatory function or power.

s 30Q: Ins 2018 No 33, sec 15. Am 2022 No 21, sec 32.

30R Rate of return instrument may apply for this Law and the National Electricity Law

30R Rate of return instrument may apply for this Law and the National Electricity Law

(1) The AER may make 1 rate of return instrument for the purposes of this Law and the National Electricity Law.

(2) If the AER acts under subsection (1)—

(a) the process for making the instrument under Part 3 Division 1B of the National Electricity Law is taken to have been complied with for the instrument; and

(b) the instrument is taken to be the rate of return instrument for the purposes of the National Electricity Law.

Note—

See also section 18W of the National Electricity Law.

(3) To remove any doubt, it is declared that the instrument may include different ways to calculate the rate of return on capital and the value of imputation credits for the purposes of this Law and the National Electricity Law.

s 30R: Ins 2018 No 33, sec 15.

ch.2-pt.1-div.1A-sdiv.5 Confidentiality of information

Subdivision 5 Confidentiality of information

ch 2, pt 1, div 1A, sdiv 5: Ins 2018 No 33, sec 15.

30S Confidentiality

30S Confidentiality

(1) If a person wishes to give information to the AER for the purposes of this Division in confidence—

(a) the person must give the AER written notice that the person claims the information is confidential; and

(b) give reasons to support the claim, including—

(i) information about the detriment that might be caused to the person if the information were disclosed by the AER; and

(ii) information that—

(A) is reasonably within the person’s knowledge and capacity to give; and

(B) may be relevant to the AER’s consideration under section 329 about whether the public benefit in disclosing the information outweighs the detriment.

(2) In giving reasons to support a claim under subsection (1) about information received from another person (a third party), a person may include information that—

(a) is reasonably within the person’s knowledge and capacity to give; and

(b) is about the detriment that might be caused to the third party if the information were disclosed by the AER; and

(c) may be relevant to the AER’s consideration under section 329 about whether the public benefit in disclosing the information outweighs the detriment.

(3) In acting under subsection (1), a person must specifically identify the information in relation to which the claim is made.

(4) Information given to the AER for the purposes of this Division is not to be regarded as being given in confidence, or to be confidential in any way, unless the information is subject to an express claim of confidentiality made under this section.

s 30S: Ins 2018 No 33, sec 15.

30T Disclosure of information given in confidence

30T Disclosure of information given in confidence

(1) Chapter 10 Part 2 Division 1 applies in relation to publishing information given to the AER in confidence under this Division.

(2) In this section—

information includes advice, recommendations, submissions and reports.

s 30T: Ins 2018 No 33, sec 15.

Division 1B AER trial waiver functions

Division 1B AER trial waiver functions

ch 2, pt 1, div 1B: Ins 2022 No 22, sec 35.

30U Definitions

30U Definitions

In this Division—

proponent—see section 30W(1).

s 30U: Ins 2022 No 22, sec 35. Am 2023 No 36, sec 18.

30V Interpretative matters

30V Interpretative matters

(1) The functions of the AER under this Division are the AER trial waiver functions.

(2) This Division does not limit any other provision of this Law or the Rules that provides for an exemption from, or for the waiver of, compliance with this Law or the Rules.

s 30V: Ins 2022 No 22, sec 35.

30W Trial waiver

30W Trial waiver

(1) Subject to this section, the AER may, on application by a person or body that proposes to undertake a trial project (a proponent), make a determination to grant the proponent an exemption (a trial waiver) from 1 or more of the following—

(a) section 91BJ;

(b) section 91BRD;

(c) section 91BRR;

(d) section 91LB;

(e) the Rules, or a provision of the Rules.

(2) Before making a determination to grant a trial waiver, the AER must have regard to the innovative trial principles and any matter required by the Rules.

(3) An application for a trial waiver must be made in accordance with the Rules.

(4) Nothing in this section operates to prevent the granting of an exemption in accordance with a rule made under section 148A.

s 30W: Ins 2022 No 22, sec 35. Am 2023 No 36, sec 19.

30X Conditions of trial waiver

30X Conditions of trial waiver

(1) A trial waiver must be in writing and—

(a) must be subject to any conditions required by the Rules; and

(b) may be subject to any conditions the AER considers appropriate.

(2) The AER may vary or revoke a condition of a trial waiver in accordance with the Rules.

s 30X: Ins 2022 No 22, sec 35.

30Y Consultation on trial waiver

30Y Consultation on trial waiver

Before granting a trial waiver, the AER must—

(a) comply with any requirements specified by the Rules; and

(b) undertake consultation (including with the proponent) in accordance with the Rules.

s 30Y: Ins 2022 No 22, sec 35.

30Z Publication etc of trial waiver

30Z Publication etc of trial waiver

As soon as practicable after a trial waiver is made, a copy of the trial waiver must be published on the AER's website.

s 30Z: Ins 2022 No 22, sec 35.

30ZA Duration of trial waiver

30ZA Duration of trial waiver

Subject to this Division, a trial waiver has effect from the day specified in the trial waiver and for the period (not exceeding 5 years) specified in the trial waiver.

s 30ZA: Ins 2022 No 22, sec 35.

30ZB Extension of trial waiver

30ZB Extension of trial waiver

(1) The AER may, in accordance with the Rules, extend the period for which a trial waiver granted under this Division has effect by a period determined by the AER (which cannot exceed the period prescribed by the Regulations).

(2) Before granting an extension under subsection (1), the AER must have regard to the innovative trial principles and any matter required by the Rules.

(3) An extension under subsection (1) must be in writing and must be published on the AER's website.

(4) An extension under subsection (1) may only be granted once in respect of a trial waiver granted under this Division.

s 30ZB: Ins 2022 No 22, sec 35.

30ZC Compliance with trial waiver

30ZC Compliance with trial waiver

(1) A proponent granted a trial waiver must comply with any conditions to which the trial waiver is subject.

(2) If a proponent breaches subsection (1), the AER may—

(a) revoke the trial waiver; or

(b) vary or revoke a condition of, or impose further conditions on, the trial waiver.

(3) Nothing in this section limits section 30ZD.

s 30ZC: Ins 2022 No 22, sec 35.

30ZD Revocation of trial waiver

30ZD Revocation of trial waiver

The AER may, in accordance with the Rules, revoke a trial waiver granted under this Division.

s 30ZD: Ins 2022 No 22, sec 35.

30ZE Other matters

30ZE Other matters

(1) The AER must not grant a trial waiver if the AER reasonably considers—

(a) that the trial project for which the trial waiver is sought is materially similar to a trial project—

(i) for which a trial Rule has been made; or

(ii) that is the subject of a request under section 295(1) for the making of a trial Rule; or

(b) that the trial project is unlikely to be carried out.

(2) The AER cannot grant itself a trial waiver.

s 30ZE: Ins 2022 No 22, sec 35.

31 Definitions

31 Definitions

In this Division—

authorised person means a person authorised under section 32;

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

32 Authorised person

32 Authorised person

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

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

33 Identity cards

33 Identity cards

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

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

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

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

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

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

34 Return of identity cards

34 Return of identity cards

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

Maximum penalty—$620.

Note—

See Schedule 2 clause 47B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

s 34: Am 2020 No 37, sec 50.

35 Search warrant

35 Search warrant

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

(a) believes on reasonable grounds that—

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

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

(b) reasonably suspects that—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

37 Immediate entry permitted in certain cases

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

(a) the safety of any person; or

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

38 Copies of seized documents

38 Copies of seized documents

(1) If an authorised person executing a warrant retains possession of a document seized from a person in accordance with the warrant, the authorised person must give that other person, within 21 days of the seizure, a copy of the document certified as correct by the authorised person executing the warrant.

(2) A copy of a document certified under subsection (1) shall be received in all courts and all tribunals as evidence of equal validity to the original.

39 Retention and return of seized documents or things

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.