Div 5ACompliance and performance

Division 5A—Compliance and performance 64A—References in this Division to service providers In this Division, a reference to a service provider includes a reference to a person, other than a service provider, to whom Chapter 4, or a provision of Chapter 4, applies under section 130. 64B—Compliance audits by AER For the purpose of assessing a service provider's compliance with the requirements of this Law, the Regulations and the Rules, the AER may— (a) carry out compliance audits of any or all activities of the service provider; or (b) arrange for the carrying out by contractors or other persons of compliance audits on behalf of the AER of any or all activities of the service provider. 64C—Compliance audits by service providers (1) A service provider must, if required by the AER, carry out a compliance audit in connection with specified aspects of the activities of the service provider in relation to the service provider's compliance with the requirements of this Law, the Regulations and the Rules. (2) If the AER requires a service provider to carry out a compliance audit under this section, the service provider may arrange for the audit to be carried out on its behalf by contractors or other persons, but the service provider remains responsible for the audit. (3) A service provider must, within a period specified by the AER, provide the AER with the results of a compliance audit carried out under this section. Subsections (1) and (3) are civil penalty provisions. 64D—Carrying out of compliance audits A compliance audit is to be carried out in accordance with the AER Compliance Procedures and Guidelines. 64E—Cost of compliance audits (1) The cost of conducting a compliance audit under section 64B is an amount to be determined in accordance with the AER Compliance Procedures and Guidelines and is recoverable by the AER from the service provider to whom the audit relates. (2) The cost of conducting a compliance audit under section 64C is to be borne by the service provider to whom the audit relates. 64F—AER Compliance Procedures and Guidelines (1) The AER must make procedures and guidelines (AER Compliance Procedures and Guidelines) in accordance with the Rules. (2) Without limiting subsection (1), the AER Compliance Procedures and Guidelines may provide guidance for service providers about the following matters: (a) compliance with the requirements of this Law, the Regulations and the Rules; (b) the carrying out of compliance audits, and the costs payable by service providers, under this Division. (3) The AER Compliance Procedures and Guidelines may include a statement of the AER's compliance priorities. (4) The AER may amend the AER Compliance Procedures and Guidelines in accordance with the Rules. (5) The AER Compliance Procedures and Guidelines may form part of similar guidelines under this Law, the National Electricity Law or the National Energy Retail Law. 65—Consideration by the AER of submissions or comments made to it under this Law or the Rules If, under this Law or the Rules, the AER publishes a notice inviting submissions in relation to the making of an AER economic regulatory decision, the AER, in making the decision— (a) must consider every submission it receives within the period specified in the notice; and (b) may, but need not, consider a submission it receives after the period specified in the notice expires. 66—Use of information provided under a notice under section 42 or a regulatory information instrument The AER may use information provided to it by a person in compliance with a notice under section 42 or a regulatory information instrument for any purposes connected with the performance or exercise of a function or power of the AER under— (a) this Law or the Rules; or (b) the National Electricity Law or the National Electricity Rules; or (c) the National Energy Retail Law or the National Energy Retail Rules. 67—AER to inform certain persons of decisions not to investigate breaches, institute proceedings or serve infringement notices (1) If the AER is given information by any person in relation to a breach or a possible breach of this Law, the Regulations or the Rules by a person but— (a) decides not to investigate that breach or possible breach; or (b) following an investigation, decides not to— (i) institute any proceedings under Chapter 8 in respect of that breach or possible breach; or (ii) serve an infringement notice in accordance with Chapter 8 Part 7 in respect of that breach or possible breach, the AER must notify that person of that decision in writing. (2) This section does not apply if the person gave the information to the AER anonymously. 68—AER Guidelines (a1) The AER must prepare guidelines about the exercise of its powers under section 42, including about— (a) the rights and obligations of persons who are served with a relevant notice under that section; and (b) the penalties applying under that section for non‑compliance with a notice; and (c) the purposes for which information obtained under that section may be used. (1) The AER may prepare guidelines about the matters it will have regard to before— (a) making an application under section 231; or (b) serving an infringement notice under section 277; or (c) accepting an enforceable undertaking under section 230A. (2) The AER must publish guidelines prepared under subsection (a1) or (1) on its website. 68A—Single documentation (1) This section applies if the AER is authorised to prepare a document under this Law or the Rules for a purpose and is also authorised to prepare a document or documents under any of the following: (a) the National Electricity Law; (b) the National Electricity Rules; (c) the National Energy Retail Law; (d) the National Energy Retail Rules, for the same or a similar, related or corresponding purpose. (2) The AER may satisfy the requirements of this Law or the Rules regarding the document under this Law or the Rules by preparing and making (and where relevant publishing) a single document. See also section 28ZH of the National Electricity Law and section 219 of the National Energy Retail Law. 68B—Use of information (1) The AER may use the information obtained under this Law or the Rules for a purpose connected with the performance or exercise of a function or power of the AER under any of the following: (a) the National Electricity Law; (b) the National Electricity Rules; (c) the National Energy Retail Law; (d) the National Energy Retail Rules. (2) The AER may use the information obtained under any such Law or Rules for a purpose connected with the performance or exercise of a function or power of the AER under this Law or the Rules. (3) This section does not limit any other provision of this Law that provides for the use of information obtained under this Law or the Rules. See also section 28ZI of the National Electricity Law and section 220 of the National Energy Retail Law. Part 2—Functions and powers of the Australian Energy Market Commission 69—Functions and powers of the AEMC (1) The AEMC has the following functions and powers: (a) the Rule making functions and powers conferred on it under this Law and the Regulations; (b) the market development functions conferred on it under this Law and the Rules; (c) any other functions and powers conferred on it under this Law and the Rules. (2) The AEMC has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. 70—Delegations Any delegation by the AEMC under section 20 of the Australian Energy Market Commission Establishment Act 2004 of South Australia extends to, and has effect for the purposes of, this Law, the Regulations and the Rules. 71—Confidentiality Section 24 of the Australian Energy Market Commission Establishment Act 2004 of South Australia has effect for the purposes of this Law, the Regulations and the Rules as if it formed part of this Law. See also Chapter 10 Part 2 Division 2. 72—AEMC must have regard to national gas objective In performing or exercising any function or power under this Law, the Regulations or the Rules, the AEMC must have regard to the national gas objective. 72A—Targets statement for greenhouse gas emissions targets (1) The AEMC must prepare and maintain a document (the targets statement) stating the targets set by a participating jurisdiction mentioned in section 23(b). (2) If the MCE or a Minister of a participating jurisdiction gives a written direction to the AEMC to include a target in, or remove a target from, the targets statement, the AEMC must comply with the direction. (3) A Minister may give a written direction under subsection (2) only in relation to a target set by the Minister's participating jurisdiction. (4) The AEMC must publish on its website— (a) the targets statement; and (b) each direction given under subsection (2). (5) In having regard to the national gas objective under this Law, the Regulations or the Rules with respect to the matters mentioned in section 23(b), a person or body must consider, as a minimum, the targets stated in the targets statement. 73—AEMC must have regard to MCE statements of policy principles in relation to Rule making and reviews The AEMC must have regard to any relevant MCE statement of policy principles— (a) in making a Rule; or (b) in conducting a review under section 83. Division 2—Rule making functions and powers of the AEMC 74—Subject matter for National Gas Rules (1) Subject to this Division, the AEMC, in accordance with this Law and the Regulations, may make Rules, to be known, collectively, as the "National Gas Rules", for or with respect to— (a) regulating— (i) access to pipeline services; and (ii) the provision of pipeline services; and (iii) the collection, use, disclosure, copying, recording, management and publication of information in relation to the covered gas industry; and (iv) the operation of a regulated retail gas market; and (v) AEMO's declared system functions and the operation of a declared wholesale gas market; and (va) AEMO's STTM functions and the operation of a short term trading market of an adoptive jurisdiction; and (vi) the activities of Registered participants, users, end users and other persons in a regulated gas market; and (vii) the safety, security and reliability of pipelines; and (viia) the reliability or adequacy of the supply of covered gas within the east coast gas system; and (viii) the connection of premises of retail customers; and (aaa) AEMO's gas trading exchange functions and the operation of a gas trading exchange; and (aab) the capacity auction functions of AEMO, the operation of a capacity auction and the activities of transportation service providers and transportation facility users in connection with a capacity auction; and (aac) transaction support arrangements; and (aad) access to and the provision of operational transportation services; and (aa) facilitating and supporting the provision of services to retail customers; and (ab) any matter or thing related to, or necessary or expedient for, the purposes of a trial Rule, trial project or trial waiver; and (aba) the AER gas price reporting functions; and (ac) AEMO′s east coast gas system reliability and supply adequacy functions; and (b) any matter or thing contemplated by this Law, or necessary or expedient for the purposes of this Law. The procedure for the making of a Rule by the AEMC is set out in Chapter 9 Part 3. (2) Without limiting subsection (1), the AEMC, in accordance with this Law and the Regulations, may make Rules for or with respect to any matter or thing specified in Schedule 1 to this Law. (3) Rules made by the AEMC in accordance with this Law and the Regulations may— (b) vary according to the persons, times, places or circumstances to which they are expressed to apply; (c) confer functions or powers on, or leave any matter or thing to be decided or determined by— (i) the AER, the AEMC or AEMO; or (ii) any panel or committee established by the AEMC; or (iii) any other body established, or person appointed, in accordance with the Rules; (d) confer rights or impose obligations on any person or a class of person (other than AEMO, the AER or the AEMC); (e) confer a function on the AER, the AEMC or AEMO to make or issue guidelines, tests, standards, procedures or any other document (however described) in accordance with the Rules, including guidelines, tests, standards, procedures or any other document (however described) that leave any matter or thing to be determined by the AER, the AEMC or AEMO; (f) empower or require any person (other than a person referred to in paragraph (e)) or body to make or issue guidelines, tests, standards, procedures or any other document (however described) in accordance with the Rules; (fa) provide for Procedures governing the operation of regulated gas markets; (fb) provide for Procedures governing the operation and administration of capacity auctions and transaction support arrangements; (g) apply, adopt or incorporate wholly or partially, or as amended by the Rules, the provisions of any standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body whether— (i) as formulated, issued, prescribed or published at the time the Rules are made or at any time before the Rules are made; or (ii) as amended from time to time; (h) confer a power of direction on the AER, the AEMC or AEMO to require a person conferred a right, or on whom an obligation is imposed, under the Rules to comply with— (i) a guideline, test, standard, procedure or other document (however described) referred to in paragraph (e) or (f); or (ii) a standard, rule, specification, method or document (however described) referred to in paragraph (g); (i) if this section authorises or requires Rules that regulate any matter or thing, prohibit that matter or thing or any aspect of that matter of thing; (j) provide for the review of, or a right of appeal against, a decision or determination made under the Rules and for that purpose, confer jurisdiction on the Court; (k) require a form prescribed by or under the Rules, or information or documents included in, attached to or given with the form, to be verified by statutory declaration; (l) in a specified case or class of case, exempt— (i) AEMO; or (ii) a Registered participant or class of Registered participant; or (iii) any other person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules or a class of any such person or body, from complying with a provision, or part of a provision, of the Rules; (m) provide for the modification or variation of a provision of the Rules (with or without substitution of a provision of the Rules or part of a provision of the Rules) as it applies to— (i) AEMO; or (ii) a Registered participant or class of Registered participant; or (iii) any other person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules or a class of any such person or body; (n) confer an immunity on, or limit the liability of, any person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed under the Rules; (na) require a person or body performing or exercising a function or power, or on whom a right is conferred or an obligation is imposed under the Rules, to indemnify another such person or body; (o) contain provisions of a savings or transitional nature consequent on the amendment or revocation of a Rule. 75—Rules relating to MCE or Ministers of participating jurisdictions require MCE consent The AEMC must not, without the consent of the MCE, make a Rule that confers a right or function, or imposes an obligation, on the MCE or a Minister of a participating jurisdiction. The term function is defined in clause 10 of Schedule 2 to this Law to include "duty". 76—AEMC must not make Rules that create criminal offences or impose civil penalties for breaches The AEMC must not make a Rule that— (a) creates an offence for a breach of a provision of the Rules; or (b) provides for a criminal penalty or civil penalty for a breach of a provision of the Rules. 77—Documents etc applied, adopted and incorporated by Rules to be publicly available (1) The AEMC must make publicly available— (a) every standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body that is applied, adopted or incorporated by a Rule; and (b) if a standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body is applied, adopted or incorporated by a Rule as amended from time to time—any amendment to that standard, rule, specification, method or document. (2) For the purposes of subsection (1), the AEMC makes a standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body applied, adopted or incorporated by any Rule publicly available if the AEMC— (a) publishes the standard, rule, specification, method or document on the AEMC's website; or (b) specifies a place from which the standard, rule, specification, method or document may be obtained or purchased (as the case requires). Division 3—Committees, panels and working groups of the AEMC 78—Establishment of committees, panels and working groups The AEMC may establish committees, panels and working groups to— (a) provide advice on specified aspects of the AEMC's functions; or (b) undertake any other activity in relation to the AEMC's functions as is specified by the AEMC. Division 4—MCE directed reviews 79—MCE directions (1) The MCE may give a written direction to the AEMC that the AEMC conduct a review into— (a) any matter relating to a market for gas (including services provided in a market for gas); or (b) any matter relating to access to pipelines or to pipeline services provided by means of pipelines; or (c) the operation and effectiveness of the Rules; or (d) any matter relating to the Rules; or (e) the effectiveness of competition in a market for gas for the purpose of giving advice about whether to retain, remove or reintroduce price controls on prices for retail gas services. (2) A direction given to the AEMC under this section is binding on the AEMC and must be complied with despite anything to the contrary in the Rules. (3) A direction given under this section must be published in the South Australian Government Gazette. (4) The AEMC must cause a direction given under this section to be published on its website. 80—Terms of reference (1) The terms of reference of a MCE directed review will be as specified in the direction given by the MCE. The terms of reference may require a MCE directed review to be conducted— (a) about a specific matter within a specified time; or (b) whenever a specified event occurs; or (c) on an annual basis. (2) Without limiting subsection (1), the MCE may in its direction to the AEMC do 1 or more of the following: (a) require the AEMC to give a report on a MCE directed review to the MCE within a specified period; (b) require the AEMC to make the report on a MCE directed review publicly available or available to specified persons or bodies; (c) require the AEMC to make a draft report publicly available or available to specified persons or bodies during a MCE directed review; (d) require the AEMC to consider specified matters in the conduct of a MCE directed review; (e) require the AEMC to have specified objectives in the conduct of a MCE directed review which need not be limited by the national gas objective; (f) require the AEMC to assess a particular matter in relation to services provided in a market for gas against specified criteria or a specified methodology; (g) require the AEMC— (i) to assess a particular matter in relation to services provided in a market for gas; and (ii) to develop appropriate and relevant criteria, or an appropriate and relevant methodology, for the purpose of the required assessment; (h) give the AEMC other specific directions in respect of the conduct of a MCE directed review. 81—Notice of MCE directed review (1) The AEMC must publish notice of a MCE directed review on its website. (2) The AEMC must publish a further such notice if a term of reference or a requirement or direction relating to the MCE directed review is varied. 82—Conduct of MCE directed review Subject to any requirement or direction of the MCE, a MCE directed review— (a) may be conducted in such manner as the AEMC considers appropriate; and (b) may (but need not) involve public hearings. Division 5—Other reviews 83—Rule reviews by the AEMC (1) The AEMC may conduct a review into— (a) the operation and effectiveness of the Rules; or (b) any matter relating to the Rules. (2) A review— (a) may be conducted in such manner as the AEMC considers appropriate; and (b) may (but need not) involve public hearings. (3) During the course of a review, the AEMC may— (a) consult with any person or body that it considers appropriate; (b) establish working groups to assist it in relation to any aspect, or any matter or thing that is the subject of, the review; (c) commission reports by other persons on its behalf on any aspect, or matter or thing that is the subject of, the review; (d) publish discussion papers or draft reports. (4) At the completion of a review, the AEMC must— (a) give a copy of the report to the MCE; and (b) publish a report or a version of a report from which confidential information has been omitted in accordance with section 331. 83B—Standard market timetable (1) Without limiting any other provision, the Rules may provide for a standard market timetable. (2) The standard market timetable may do the following: (a) specify the start time of a standard gas day; (b) provide for the times for nominations and renominations for the use of transportation services and deliveries or receipts of covered gas; (c) provide for the circumstances in which the standard market timetable must be used, which may include provision in relation to any of the following: (i) transportation services; (ii) the supply, production, blending or storage of covered gas; (iii) the measurement and allocation of deliveries or receipts of covered gas; (iv) a regulated gas market, a gas trading exchange and a capacity auction. (3) Without limiting any other provision, the Rules may require a person of the following kind to use the standard market timetable in accordance with the Rules: (a) a transportation service provider; (b) a transportation facility user; (c) a person who measures, or determines the allocation of, deliveries or receipts of covered gas; (e) a storage provider; (f) any other person of a kind prescribed by the Regulations for the purposes of this subsection. 83C—Use of the standard market timetable A person required by the Rules to use the standard market timetable must do so in accordance with the Rules. 83D—False or misleading statements A person of the following kind must not, in connection with the supply or possible supply of goods and services, make a false or misleading representation concerning the effect of a requirement for the person to use the standard market timetable on the price for the supply of the goods or services: (a) a transportation service provider; (b) a transportation facility user; (c) a person who measures, or determines the allocation of, deliveries or receipts of covered gas; (e) a storage provider; (f) any other person of a kind prescribed by the Regulations for the purposes of section 83B(3)(f). 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. 84—AEMC must publish and make available up to date versions of Rules The AEMC must, at all times— (a) maintain, on its website, a copy of the National Gas Rules, as in force from time to time; and (b) make copies of the National Gas Rules, as in force from time to time, available to the public for inspection at its offices during business hours. 85—Fees (1) The AEMC may charge a fee specified, or a fee calculated in accordance with a formula or methodology specified, in the Regulations for services provided by it in performing or exercising any of its functions or powers under this Law, the Regulations or the Rules. (2) The fee must not be such as to amount to taxation. 86—Immunity from personal liability of AEMC officials (1) No personal liability attaches to an AEMC official for an act or omission in good faith in the performance or exercise, or purported performance or exercise of a function or power under this Law, the Regulations or the Rules. (2) A liability that would, but for subsection (1), lie against an AEMC official lies instead against the AEMC. AEMC official means— (a) a member of the AEMC; (b) the chief executive of the AEMC; (c) a member of staff appointed by the AEMC. Part 3—Functions and powers of Ministers of participating jurisdictions 87—Functions and powers of Minister of this participating jurisdiction under this Law (1) The Minister of this participating jurisdiction has the functions and powers conferred on him or her under this Law, the Regulations or the Rules. (2) The Minister of this participating jurisdiction has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions. Minister of this participating jurisdiction means the Minister that administers the Act of this jurisdiction that applies this Law or a part of this Law as a law of this jurisdiction—see section 22(b). Part 5—Functions and powers of Tribunal 91—Functions and powers of Tribunal under this Law (1) The Tribunal has the functions and powers conferred on it under Chapter 8 Part 5 and any Regulations made for the purposes of that Division. (2) The Tribunal has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. Part 6—Role of AEMO under National Gas Law 91A—AEMO's statutory functions (1) AEMO has the following functions: (a) to operate and administer gas markets in accordance with this Law, the Rules and the Procedures; (b) to promote the development, and improve the effectiveness of the operation and administration of, gas markets; (ba) conduct trials relating to the operation and administration of markets, or parts of markets, capacity auctions and transaction support arrangements that are or will be governed by this Law, the Rules and the Procedures; (c) to register persons as Registered participants; (d) to exempt certain persons from being registered as Registered participants; (e) to facilitate retail customer transfer, metering and retail competition (including balancing, allocation and reconciliation of gas deliveries and withdrawals to and from subnetworks); (ea) the east coast gas system reliability and supply adequacy functions; (eb) to disclose information held by AEMO to other persons or bodies in accordance with this Law, the Rules, the Procedures and the Regulations; (ec) to provide advisory and support services related to information held by, or otherwise available to, AEMO; (f) for an adoptive jurisdiction—the declared system functions or STTM functions (as the case requires); (g) to make, amend or revoke Procedures; (ga) the gas trading exchange functions; (gb) the capacity auction functions; (gc) to establish, operate and administer transaction support arrangements; (h) to operate and maintain the Gas Bulletin Board; (i) to prepare, periodically review, revise, and publish the gas statement of opportunities; (j) to investigate breaches or possible breaches of the Procedures; (k) any functions conferred by jurisdictional gas legislation or an application Act; (l) any other functions conferred under this Law, the Rules or the Procedures. Notes— 1 AEMO has additional functions under its Constitution. 2 It should be noted that AEMO's statutory functions include its functions under the National Electricity Law and the National Electricity Rules: see definition of statutory functions in section 2. 3 AEMO also has responsibilities, under Part 4 of the Australian Energy Market Commission Establishment Act 2004 of South Australia, related to administrative costs associated with the work of the Consumer Advocacy Panel.