Part 7Regulation of retail gas markets

Part 7—Regulation of retail gas markets Division 1—Registration 91L—Retail gas markets (1) A retail market for 1 or more covered gases in each participating jurisdiction constitutes a retail gas market. (2) A regulated retail gas market is a retail gas market the operation of which is governed under the Rules or Procedures (or both). 91LA—Retail market participation (1) A person participates in a regulated retail gas market in a registrable capacity if the person is classified under the Rules as a participant in the relevant market. (2) A person cannot be classified under the Rules as a participant in a regulated retail gas market unless the person falls within 1 or more of the following classes: (a) service providers; (b) users; (c) blend processing service providers; (d) producers; (e) storage providers; (f) traders; (g) a class prescribed under the Regulations. 91LB—Registration required for market participation (1) A person must not participate in a regulated retail gas market in a registrable capacity unless registered (or exempted from registration) in accordance with the Rules. (2) A person may also be exempted from registration by or under jurisdictional gas legislation. (3) A person who participates in a regulated retail gas market in 2 or more registrable capacities must be registered (or exempted from registration) in both or all those capacities. (4) For performing statutory functions, AEMO is not required to be registered. 91LC—Certificates of registration etc (1) A certificate signed by an authorised officer certifying that a person named in the certificate is registered, or exempted from registration, is evidence of the registration or exemption. (2) For this section, an authorised officer is AEMO's CEO or a person authorised by the CEO to issue certificates under this section. Division 2—Retail Market Procedures 91M—Retail Market Procedures AEMO may, in accordance with the Rules, make Retail Market Procedures. 91MA—Nature of Retail Market Procedures (1) Retail Market Procedures are a form of statutory instrument directed at the regulation of a retail gas market. (2) The Retail Market Procedures may deal with the following matters: (b) any other matter relevant to a regulated retail gas market on which this Law or the Rules contemplate the making of Procedures. (3) The Retail Market Procedures— (a) may apply to regulated retail gas markets generally or any 1 or more of the regulated retail gas markets; and (b) may vary according to the persons, times, places or circumstances to which they are expressed to apply; and (c) may confer functions or powers on, or leave any matter or thing to be decided by, AEMO; and (d) may confer rights or impose obligations on Registered participants, exempted participants, users, end users or other persons; and (e) may require a Registered participant or an exempted participant to give an indemnity against injury, damage or loss arising from the participant's failure to comply with requirements imposed by the Procedures; and (f) may confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and (g) may confer power on AEMO to require a person on whom a right is conferred, or an obligation imposed, under the Procedures— (h) may exempt, or confer a power of exemption, from the application of the Procedures or specified provisions of the Procedures; and (i) may contain provisions of a savings or transitional nature. (4) AEMO must not, without the consent of the MCE, make Retail Market Procedures that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction. (5) The Retail Market Procedures cannot— 91MB—Compliance with Retail Market Procedures (1) AEMO and each person to whom the Retail Market Procedures are applicable must comply with the Procedures. (3) If AEMO has reasonable grounds to suspect a breach of the Retail Market Procedures, it must, after making such inquiries and investigation as it considers appropriate, make a decision as to whether the breach is a material breach. (4) If AEMO decides the breach is material, AEMO— (b) may direct the person suspected of the breach to rectify it or to take specified measures to ensure future compliance (or both); and (5) A direction by AEMO under subsection (4)(b) must— (6) A person to whom a direction is given under subsection (4)(b) must comply with the direction. (7) AEMO must give a copy of its decision under subsection (3), its reasons for the decision and (if relevant) any direction under subsection (4)(b) to the AER. (8) If AEMO decides the breach is not material, AEMO must— AEMO may provide the AER with relevant information (including protected information) related to a suspected breach of the Procedures. (For disclosure of protected information, see section 91GC(2)(b).) Chapter 3—Regulatory framework for pipelines Part 1—Scheme pipeline determinations and scheme pipeline elections Division 1—Scheme pipeline determinations 92—AER may make scheme pipeline determination (1) The AER may, on its own initiative or on the application of any person, make a determination that a non‑scheme pipeline is a scheme pipeline (a scheme pipeline determination). (2) An application for a scheme pipeline determination must— 93—Requirements for making, or not making, a scheme pipeline determination (1) A scheme pipeline determination or a decision not to make a scheme pipeline determination must— (e) if a scheme pipeline determination is made—specify the date the determination takes effect. (2) For subsection (1)(e), the date specified must be at least 6 months, but not more than 12 months, after the determination is made. 94—Effect of scheme pipeline determination A pipeline the subject of a scheme pipeline determination— (a) becomes a scheme pipeline when the scheme pipeline determination takes effect; and (b) continues to be a scheme pipeline while the scheme pipeline determination remains in effect. Division 2—Scheme pipeline elections 95—Scheme pipeline elections (1) A service provider for a non‑scheme pipeline may elect for the pipeline to be dealt with under this Law as a scheme pipeline (a scheme pipeline election). (2) A scheme pipeline election must be made in accordance with the Rules. 96—Effect of scheme pipeline elections (1) A scheme pipeline election takes effect on a day, determined by the AER, that is at least 6 months, but not more than 12 months, after the AER receives the election. (2) However, if the AER does not make a determination under subsection (1), the scheme pipeline election takes effect on the day that is 12 months after the AER receives the election. (3) On the day a scheme pipeline election takes effect under this section, the non‑scheme pipeline the subject of the scheme pipeline election becomes a scheme pipeline. Part 2—Scheme pipeline revocation determinations 97—AER may make scheme pipeline revocation determination (1) The AER may, on its own initiative or on the application of any person, make a scheme pipeline revocation determination in relation to any scheme pipeline other than a designated pipeline. (2) An application for a scheme pipeline revocation determination must— 98—Requirements for making, or not making, a scheme pipeline revocation determination A scheme pipeline revocation determination or a decision not to make a scheme pipeline revocation determination must— (e) if a scheme pipeline revocation determination is made—specify the date the determination takes effect. 99—Effect of scheme pipeline revocation determination A pipeline the subject of a scheme pipeline revocation determination ceases to be a scheme pipeline when the scheme pipeline revocation determination takes effect. Part 3—Greenfields incentive determinations and greenfields price protection determinations Division 1—Greenfields incentive determinations 100—AER may make greenfields incentive determination (1) The AER may, on the application of the service provider for a greenfields pipeline project, make a determination that the pipeline the subject of the greenfields pipeline project cannot become a scheme pipeline during the operative period for the determination (a greenfields incentive determination). (2) An application for a greenfields incentive determination— (a) cannot be made after the pipeline is commissioned; and (b) must be made in accordance with the Rules; and (c) must include a description of the pipeline that meets the requirements specified by the Rules; and (d) must contain the information required by the Rules; and (e) need not describe, or include details of, excluded infrastructure; and (f) must be accompanied by the fee prescribed by the Regulations (if any); and (g) must be dealt with in accordance with the Rules. 101—Requirements for making, or not making, a greenfields incentive determination (1) A greenfields incentive determination or a decision not to make a greenfields incentive determination must— (e) if a greenfields incentive determination is made—specify the date the determination takes effect. (2) The AER may, in having regard to the matters mentioned in section 112, decide a period during which a greenfields incentive determination is to continue in operation that is less than 15 years. (3) If the AER decides a period under subsection (2), the greenfields incentive determination must also specify the period. 102—Effect of greenfields incentive determination (1) A greenfields incentive determination takes effect on and from the date specified in the determination. (2) The period during which a greenfields incentive determination continues in force (the operative period) is— (a) if the AER decides a period under section 101(2) that is less than 15 years—that period; or (b) otherwise—15 years from the commissioning of the pipeline. (3) During the operative period, the pipeline the subject of the greenfields incentive determination cannot become a scheme pipeline. (4) An application for a scheme pipeline determination in relation to a pipeline to which a greenfields incentive determination applies can be made— (a) before the end of the operative period for the greenfields incentive determination; but (b) only if the scheme pipeline determination is to commence from, or after, the end of the operative period. 103—Requirement for conformity between pipeline description and pipeline as constructed (1) Subject to this Part— (a) a greenfields incentive determination applies to the pipeline as described in the relevant pipeline description; and (b) if the pipeline, as constructed, materially differs from the pipeline as described in the relevant pipeline description, the determination does not apply to the pipeline and the service provider is not entitled to its benefit. (2) In determining whether a pipeline, as constructed, materially differs from the relevant pipeline description, excluded infrastructure is not to be taken into account. relevant pipeline description means a description of the pipeline required to be included in the application for the greenfields incentive determination made under section 100. 104—Power of AER to amend pipeline description (1) The AER may, on application by the service provider for a pipeline to which a greenfields incentive determination applies, amend the relevant pipeline description. (2) An amendment cannot, however, be made under this section after the pipeline has been commissioned. (3) In deciding whether to make the amendment sought, the AER must have regard to the criteria that were relevant to the making of the greenfields incentive determination. relevant pipeline description means a description of the pipeline required to be included in the application for the greenfields incentive determination made under section 100. Division 2—Early termination of greenfields incentive determination 105—Greenfields incentive determination may lapse (1) A greenfields incentive determination lapses if the pipeline to which it applies is not commissioned within 3 years after the determination takes effect. (2) The AER may, in a particular case, extend the 3 year period mentioned in subsection (1). 106—Revocation by consent The AER may, at the request of the service provider for the pipeline to which a greenfields incentive determination applies, revoke the determination. 107—Revocation for misrepresentation The AER may revoke a greenfields incentive determination on the ground that— (a) the applicant misrepresented a material fact on the basis of which the determination was made; or (b) the applicant failed to disclose material information that the applicant was required to disclose under this Chapter. 108—Exhaustive provision for termination of greenfields incentive determination A greenfields incentive determination does not terminate, and cannot be revoked, before the end of the operative period for the determination other than as provided for under this Part. Division 3—Greenfields price protection determinations 109—AER may make greenfields price protection determination (1) The AER may, on the application of the service provider for a greenfields pipeline project, make a determination that prices and non-price terms and conditions for particular pipeline services provided by means of a pipeline that are specified in the determination are protected, in the manner provided for in the Rules, in any arbitration of an access dispute involving the pipeline (a greenfields price protection determination). (2) An application for a greenfields price protection determination— (a) cannot be made after the pipeline is commissioned; and (b) must be made in accordance with the Rules; and (c) must contain the information required by the Rules; and (d) must be dealt with in accordance with the Rules. 110—Requirements for making, or not making, a greenfields price protection determination (1) The AER must not make a greenfields price protection determination unless— (a) the pipeline the subject of the determination is also the subject of a greenfields incentive determination; and (b) the AER is satisfied— (i) that— (A) the pipeline has been developed following a competitive process; and (B) the prices and non‑price terms and conditions for pipeline services that will be made available to prospective users during the operative period for the greenfields price protection determination have been set as a result of that process; or (ii) that— (A) one or more form of regulation factors effectively constrained the exercise of market power by the service provider when the prices and non‑price terms and conditions for pipeline services that will be made available to prospective users during the operative period for the greenfields price protection determination were determined; and (B) the making of the determination will, or is likely to, contribute to the achievement of the national gas objective. (2) For the purposes of subsection (1)(b)(i)(A), a pipeline is taken to have been developed following a competitive process if the AER is reasonably satisfied from the information provided to it by the applicant for the greenfields price protection determination that there was competition (whether formal or informal) to develop the pipeline between 2 or more prospective service providers that— (a) were not related bodies corporate of each other; and (b) did not include a related body corporate of the applicant. Competition between prospective service providers could involve the service providers competing on the basis of— (a) different pipeline routes; or (b) an expansion of an existing pipeline and the development of a new pipeline. (3) A greenfields price protection determination or a decision not to make a greenfields price protection determination must— (e) if a greenfields price protection determination is made, specify— (i) the date the determination takes effect; and (ii) the operative period for the determination. (4) For subsection (3)(e)(ii), the operative period for a greenfields price protection determination— (a) is the period during which the prices and non-price terms and conditions specified in the determination will be made available to prospective users; but (b) cannot be longer than the operative period for the greenfields incentive determination relating to the pipeline. 111—Effect of greenfields price protection determination (1) A greenfields price protection determination— (a) takes effect on and from the date specified in the determination; and (b) continues in operation for the operative period for the determination mentioned in section 110(4). (2) A greenfields price protection determination ends if the greenfields incentive determination to which the greenfields price protection determination relates ceases to apply to the pipeline. Part 4—Principles governing the making of particular determinations 112—Principles governing the making of particular determinations (1) This section sets out principles that apply for the making of the following determinations (each a relevant determination) by the AER— (a) a scheme pipeline determination under Part 1 Division 1; (b) a scheme pipeline revocation determination under Part 2; (c) a greenfields incentive determination under Part 3. (2) In deciding whether to make a relevant determination, the AER must consider the effect of regulating the pipeline, to which the determination would apply, as a scheme pipeline or non‑scheme pipeline on— (a) the promotion of access to pipeline services; and (b) the costs that are likely to be incurred by an efficient service provider; and (c) the costs that are likely to be incurred by efficient users and efficient prospective users; and (d) the likely costs of end users. (3) In doing so the AER— (a) must have regard to the national gas objective; and (b) must have regard to— (i) the form of regulation factors; and (ii) for a greenfields incentive determination—the extent to which the form of regulation factors or competition to develop the pipeline (whether formal or informal) between 2 or more unrelated prospective service providers will, or is likely to, pose an effective constraint on the exercise of market power in respect of services provided by means of the pipeline for the period the determination is in operation; and Competition between prospective service providers could involve the service providers competing on the basis of— (a) different pipeline routes; or (b) an expansion of an existing pipeline and the development of a new pipeline. (c) may have regard to any other matter it considers relevant, including, for example, any information it obtains in the course of performing its functions. Example for paragraph (c)— The AER may have regard to information contained in a report made by a mediator in relation to an access dispute. (4) For subsection (3)(b)(ii), prospective service providers are unrelated if the service providers— (a) are not related bodies corporate of each other; and (b) do not include a related body corporate of the applicant for the greenfields incentive determination. Part 5—Access arrangements for scheme pipelines Division 1—Submissions generally 113—Submission of access arrangement or revisions to applicable access arrangement A scheme pipeline service provider must submit to the AER, for approval by the AER under the Rules, an access arrangement or revisions to an applicable access arrangement, in relation to the pipeline services the service provider provides or intends to provide— (a) in the circumstances specified by the Rules; and (b) within the period of time specified by the Rules. Division 2—Provisions relating to applicable access arrangements 114—Protection of certain pre-existing contractual rights (1) An applicable access arrangement must not have the effect of depriving a person of a relevant protected contractual right. relevant exclusivity right means an express contractual right that arose on or after 30 March 1995 that— (a) prevents a service provider supplying pipeline services to persons who are not parties to the contract; or (b) limits or controls a service provider's ability to supply pipeline services to persons who are not parties to the contract, but does not include a user's contractual right to obtain a certain amount of pipeline services; relevant protected contractual right means— (a) in the case of an applicable access arrangement approved under an applicable access arrangement decision—a right under a contract (other than a relevant exclusivity right) in force immediately before that access arrangement was submitted for approval under this Law; or (b) in the case of an applicable access arrangement made under an applicable access arrangement decision because— (i) an access arrangement was not submitted for approval as required under section 113—a right under a contract (other than a relevant exclusivity right) in force immediately before the date on which an access arrangement was required to be submitted for approval; or (ii) an access arrangement was not approved under an applicable access arrangement decision—a right under a contract (other than a relevant exclusivity right) in force immediately before the date on which that access arrangement was submitted for approval. 115—Service provider may enter into agreement for access different from applicable access arrangement Subject to sections 83C and 135, nothing in this Law is to be taken as preventing a service provider from entering into an agreement with a user or a prospective user about access to a pipeline service provided by means of a scheme pipeline that is different from an applicable access arrangement that applies to that pipeline service. 116—Applicable access arrangements continue to apply regardless of who provides pipeline service An applicable access arrangement applies to a pipeline service provided, or to be provided, by means of a scheme pipeline regardless of who provides that pipeline service. Part 6—Classification and reclassification of pipelines Division 1—Classification of pipelines 117—Application for classification of pipeline (1) This section applies if a pipeline is not classified as a distribution or transmission pipeline under a licence or authorisation granted in relation to the pipeline under jurisdictional gas legislation. (2) Within 20 business days after the commissioning of the pipeline, the service provider for the pipeline must apply to the AER for the pipeline to be classified as a distribution pipeline or transmission pipeline. (3) An application for a classification decision must— Division 2—Reclassification of pipelines 118—Reclassification of pipelines (1) The AER may, on its own initiative or on the application of a service provider, make a decision for a pipeline to be reclassified as— (a) if the pipeline is a transmission pipeline—a distribution pipeline; or (b) if the pipeline is a distribution pipeline—a transmission pipeline. (2) An application for a reclassification decision must— Division 3—Provisions relating to classification and reclassification decisions 119—Requirements for making classification or reclassification decisions (1) In making a classification decision or reclassification decision, the AER must have regard to— (a) the national gas objective; and (b) the pipeline classification criterion. (2) A classification decision or reclassification decision must— (d) be made publicly available in accordance with the Rules. 120—Effect of classification decision or reclassification decision On the making of a classification decision or reclassification decision, a pipeline is— (a) if the pipeline is classified or reclassified as a distribution pipeline—a distribution pipeline; or (b) if the pipeline is classified or reclassified as a transmission pipeline—a transmission pipeline. Part 7—AER reviews into designated pipelines 121—AER reviews (1) The MCE may request the AER to conduct a review into, and report to it as to, whether a pipeline should continue to be a designated pipeline. (2) A service provider that provides pipeline services by means of a designated pipeline may request the AER to conduct a review into, and report to the MCE as to, whether that pipeline should continue to be a designated pipeline. (3) A request under subsection (1) or (2) must be in writing. (4) On receiving a request under this section, the AER must conduct a review as to whether the pipeline the subject of the request should continue to be a designated pipeline. (5) In conducting a review under this section, the AER must— (a) have regard to— (i) the national gas objective; and (ii) whether there has been a material change in competition in a market served by the designated pipeline; and (b) consult, in accordance with the Rules, with the public. (6) On the completion of a review under this section, the AER must prepare a report and— (a) give the report to the MCE; and (b) publish the report on its website. (7) The AER must also give a copy of the report to the service provider that has requested the review. Chapter 4—General requirements for provision of pipeline services Part A1—Preliminary 130—Application of this Chapter (1) This Chapter applies in relation to scheme pipelines and non‑scheme pipelines. (2) Also, this Chapter, or a provision of this Chapter, applies to a person other than a service provider as if a reference in the Chapter or provision to a service provider were a reference to the person— (a) if— (i) this Chapter, or the provision, is prescribed by the Regulations for the purposes of this subsection; and (ii) the person— (A) is prescribed by the Regulations for the purposes of this subsection; or (B) is a member of a class of persons prescribed by the Regulations for the purposes of this subsection; and (b) subject to any modifications prescribed by the Regulations for the purposes of this subsection. Part 1—General duties for provision of pipeline services by pipelines 131—Service provider must be legal entity of a specified kind to provide pipeline services A service provider must not provide a pipeline service by means of a pipeline unless the service provider is— (a) a legal entity registered under the Corporations Act 2001 of the Commonwealth; or (b) a foreign company; or (c) a corporation established by or under a law of this jurisdiction or another participating jurisdiction, whether or not that corporation has been established for a public purpose; or (d) the Crown in right of this jurisdiction or another participating jurisdiction; or (e) a person referred to in paragraph (a) to (d) and that person provides a pipeline service by means of a pipeline together with another person referred to in paragraph (a) to (d). 133—Preventing or hindering access (1) A person who is— (a) a service provider; or (b) a person who— (i) is a party to an agreement with a service provider relating to a pipeline service provided by means of a pipeline; or (ii) as a result of an access determination is entitled to a pipeline service provided by means of a pipeline; or (c) an associate of a service provider or a person referred to in paragraph (b), must not engage in conduct for the purpose of preventing or hindering the access of another person to a pipeline service provided by means of the pipeline. (2) For the purposes of subsection (1), a person is deemed to engage in conduct for a particular purpose if— (a) the conduct is or was engaged in for that purpose or for a purpose that includes, or included, that purpose; and (b) that purpose is or was a substantial purpose. (3) A person may be taken to have engaged in conduct for the purpose referred to in subsection (1) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or of any other person or from other relevant circumstances. (4) Subsection (3) does not limit the manner in which the purpose of a person may be established for the purpose of subsection (1). (a) a reference to engaging in conduct is a reference to doing or refusing to do any act, including the following— (i) refusing to supply a pipeline service; (ii) without reasonable grounds, limiting or disrupting a pipeline service; (iii) making, or giving effect to a provision of a contract or arrangement, arriving at, or giving effect to, a provision of an understanding, or requiring the giving of, or giving, a covenant; and (i) refraining (otherwise than inadvertently) from doing that act; or (ii) making it known that that act will not be done. (6) Subsection (1) does not apply to conduct engaged in in accordance with an agreement, if the agreement was in force on 30 March 1995. An example of conduct which may be prohibited if the requisite purpose is established is refusing to supply, or limiting or disrupting the supply of, a pipeline service to a user or prospective user for technical or safety reasons without reasonable grounds. 135—Service provider must comply with queuing requirements A service provider must comply with the queuing requirements of an applicable access arrangement or the Rules. 136—Compliance with pipeline interconnection principles Subject to section 91BF, a service provider must comply with the principles relating to the interconnection of pipelines and facilities (the pipeline interconnection principles) specified in the Rules. 136A—Prohibition against increasing charges to subsidise particular development (1) This section applies to a service provider for a transmission pipeline, other than a pipeline within a declared transmission system. (2) The service provider must not increase a charge for a pipeline service payable by an existing user to the service provider to subsidise the development of an extension, or expansion of the capacity, of the pipeline. (3) However, subsection (2) does not apply to a service provider if the service provider is exempt from complying with subsection (2) under the Rules. (4) Nothing in this section prevents a service provider from charging an existing user of the service provider for pipeline services provided by means of an extension, or expansion of the capacity, of a pipeline. 136B—Prohibition on bundling of services A service provider must not make it a condition of the provision of a particular pipeline service to a prospective user that the prospective user accept another service from the service provider unless the bundling of the services is reasonably necessary. 136C—Service providers must publish prescribed transparency information (1) A service provider must— (a) publish the information relating to pipelines and pipeline services specified in the Rules made for the purposes of this paragraph (the prescribed transparency information); and (b) ensure the prescribed transparency information is published in accordance with the Rules. (2) However, subsection (1) does not apply to a service provider if the service provider is exempt from complying with subsection (1) under the Rules. Part 2—Structural and operational separation requirements (ring fencing) 137—Definitions additional ring fencing requirement has the meaning given by section 143(1); marketing staff has the meaning given by section 138; related business means the following: (a) the provision of a blend processing service; (b) the business of producing primary gas, processable gas or biogas; (c) the business of purchasing or selling covered gas, processable gas or biogas, but does not include purchasing or selling covered gas, processable gas or biogas to the extent necessary— (i) for the safe and reliable operation of a pipeline; or (ii) to enable a service provider to provide balancing services in connection with a pipeline. 138—Meaning of marketing staff (1) A person is marketing staff of— (a) a service provider, if the person— (i) is an officer, employee, consultant or independent contractor or agent of the service provider; and (ii) is directly involved in the sale, marketing or advertising of pipeline services (whether or not the person is also involved in other activities); (b) an associate of a service provider, if the person— (i) is an officer, employee, consultant or independent contractor or agent of the associate; and (ii) is directly involved in the sale, marketing or advertising of pipeline services (whether or not the person is also involved in other activities). (2) A person is not marketing staff of a service provider, or an associate of a service provider, if— (a) the person's function or role (as an officer, employee, consultant or independent contractor or agent of a service provider, or an associate of a service provider) is only to provide technical, administrative, legal and accounting services to that provider or associate; or (b) the sale, marketing or advertising of pipeline services is only an incidental part of the person's function or role (as an officer, employee, consultant or independent contractor or agent of a service provider, or an associate of a service provider). A person in the position of general manager of marketing of a service provider or an associate of a service provider would be marketing staff whereas a person in the position of chief executive officer, or chief financial officer, of a service provider or an associate of a service provider would not be marketing staff. Division 2—Minimum ring fencing requirements 139—Carrying on of related businesses prohibited A service provider must not carry on a related business. 140—Marketing staff and the taking part in related businesses (1) A service provider must ensure that none of its marketing staff are officers, employees, consultants, independent contractors or agents of an associate of the service provider that takes part in a related business. (2) A service provider must ensure that none of its officers, employees, consultants, independent contractors or agents are marketing staff of an associate of the service provider that takes part in a related business. 141—Accounts that must be prepared, maintained and kept A service provider must prepare, maintain and keep— (a) separate accounts in respect of pipeline services provided by means of every pipeline owned, operated or controlled by the service provider; and (b) a consolidated set of accounts in respect of the whole of the business of the service provider. Division 3—Additional ring fencing requirements 142—Division does not limit operation of Division 2 This Division does not limit Division 2. 143—AER ring fencing determinations (1) Subject to this Division and subject to and in accordance with the Rules, the AER may make a determination requiring a service provider or associate of a service provider named in the determination to do, or refrain from doing, a thing specified in the determination (an additional ring fencing requirement). (2) In specifying an additional ring fencing requirement the AER must have regard to the following principles: (a) in the case where 1 part of the business of a service provider (business unit A) is providing pipeline services to another part of the business of the service provider (business unit B), the service provider must ensure that business unit A provides the pipeline services to business unit B as if business unit B were a separate unrelated entity; (b) in the case where a service provider is providing pipeline services to an associate of the service provider, the service provider must ensure that those services are provided as if the associate of the service provider were a separate unrelated entity; (c) users and prospective users should have sufficient information in order to understand whether a service provider is complying with paragraph (a) or (b). (3) The AER must— (a) notify, in writing, the service provider or associate named in the AER ring fencing determination of the making of that determination; and (b) give the service provider or associate a copy of the AER ring fencing determination. (4) An AER ring fencing determination must specify the date on and after which the service provider or associate of a service provider must do, or refrain from doing, a thing specified in the determination (a notified compliance date). (5) A notified compliance date must not be a date that is earlier than 10 business days after the date the service provider or associate of a service provider is given a copy of the AER ring fencing determination. (6) A service provider or associate of a service provider must comply with every additional ring fencing requirement specified in an AER ring fencing determination on and after the notified compliance date. 144—AER to have regard to likely compliance costs of additional ring fencing requirements In making an AER ring fencing determination the AER must have regard to the likely costs that may be incurred by, as the case requires— (a) an efficient service provider; or (b) an efficient associate of a service provider, in complying with an additional ring fencing requirement specified in the determination. 145—Types of ring fencing requirements that may be specified in an AER ring fencing determination Without limiting what may be specified as an additional ring fencing requirement, the AER, in an AER ring fencing determination, may require a service provider to— (a) ensure that its business and business activities are conducted, structured and arranged in the particular manner specified; Example 1— An AER ring fencing determination may require the service provider to ensure that persons employed or engaged by the service provider in relation to the provision of pipeline services are not also associates, or employed by associates, of the service provider that take part in a related business and how this must be effected. Example 2— An AER ring fencing determination may require the service provider to put in place electronic, physical and procedural security measures in respect of the offices and computer systems of the service provider, and of the offices and computer systems of its associates, so that certain specified employees or persons engaged by the service provider do not have access to certain specified information. (b) in a specified manner, disclose, to the AER and to the public, specified information in a specified manner about its business operations, structure and arrangements, and its business activities. Division 4—Associate contracts 147—Service provider must not enter into or give effect to associate contracts that have anti-competitive effect A service provider must not— (a) enter into an associate contract that has; or (b) vary an associate contract so that contract, as varied, has; or (c) give effect to a provision of an associate contract that has, the purpose, or would have or be likely to have the effect, of substantially lessening competition in a market for covered gas services unless— (d) that associate contract is an approved associate contract; or (e) that provision is contained in an approved associate contract. 148—Service provider must not enter into or give effect to associate contracts inconsistent with competitive parity rule (1) A service provider must not— (a) enter into an associate contract that is; or (b) vary an associate contract so that contract, as varied, is; or (c) give effect to a provision of an associate contract that is, inconsistent with the competitive parity rule unless— (d) that associate contract is an approved associated contract; or (e) that provision is contained in an approved associate contract. (2) For the purposes of subsection (1), and any Rules made for the purposes of that subsection, the competitive parity rule is the rule that a service provider must ensure that any pipeline services that the service provider provides to an associate of the service provider are provided to that associate as if that associate were a separate unrelated entity. Division 5—Exemptions from particular requirements 148AA—Exemptions from section 147(c) (1) Section 147(c) does not prevent a service provider from giving effect to a provision of an associate contract if the contract is for an associate pipeline service, and— (a) if the associate pipeline service relates to 1 or more types of relevant covered gas—the provision was entered into before the commencement of the Statutes Amendment (National Energy Laws) (Other Gases) Act 2023; or (b) if the associate pipeline service relates to 1 or more types of prescribed primary gas—the provision was entered into before the gas became a prescribed primary gas; or (c) if the associate pipeline service relates to a blend of prescribed primary gases—the provision was entered into before any of the gases became a prescribed primary gas. prescribed primary gas means a gas— (a) prescribed by the Regulations for the purpose of paragraph (e) of the definition of primary gas; or (b) prescribed by a local regulation for the purpose of paragraph (f) of the definition of primary gas; relevant covered gas means the following: (a) biomethane; (b) hydrogen; (c) synthetic methane; (d) a gas blend. 148A—Exemptions from particular requirements (1) The Rules may provide for exemptions from the requirements under section 139, 140, 141, 147 or 148. (2) An exemption may be given subject to conditions. (3) Without limiting the conditions that may be imposed under subsection (2), an exemption may be given subject to conditions requiring a service provider to— (a) ensure that its business and business activities are conducted, structured and arranged in the particular manner specified in the exemption; or (b) disclose, in the manner specified in the exemption, to the AER and to the public, specified information about its business activities, operations, structure and arrangements. Part 3—Negotiation of access 148B—Definition relevant pipeline service means a pipeline service provided, or to be provided, by means of a pipeline and includes a pipeline service provided, or to be provided, by an extension to, or expansion of the capacity of, a pipeline. 148C—Access proposals A service provider must comply with the Rules relating to access to a relevant pipeline service made for the purposes of this section. 148D—Duty to negotiate in good faith A user or prospective user seeking access to a relevant pipeline service and the service provider for the service must negotiate in good faith with each other about— (a) whether access can be granted to the user or prospective user; and (b) if access is to be granted—the terms and conditions for the provision of access to the user or prospective user. Part 4—AER reviews about application of this Chapter 148E—AER reviews about application of this Chapter (1) The MCE may request the AER to conduct a review into, and report to it as to, whether this Chapter, or a provision of this Chapter, should apply to any person or class of persons to whom the Chapter or provision does not currently apply. (2) A request under subsection (1) must be in writing. (3) On receiving a request under this section, the AER must conduct the review. (4) In conducting a review under this section, the AER must— (a) have regard to— (i) the national gas objective; and (ii) the effect the application of this Chapter, or a provision of this Chapter, to another person or class of persons would have on— (A) the promotion of access to pipeline services and any other benefits that may be associated with the application; and (B) the costs that are likely to be incurred by the person or class of persons if they were operating efficiently; and (b) consult, in accordance with the Rules, with the public. (5) On the completion of a review under this section, the AER must prepare a report and— (a) give the report to the MCE; and (b) publish the report on its website. Chapter 5—Access disputes Part 1—Interpretation and application 149—Definitions In this Chapter— access dispute pipeline, in relation to an access dispute, means the pipeline the subject of the dispute; dispute hearing means a hearing conducted by the relevant adjudicator for an access dispute for the purpose of making an access determination in relation to the dispute; party, in relation to an access dispute, has the meaning given by section 154. 150—Application of this Chapter to disputes arising under the Rules (1) The provisions of this Chapter applicable to the determination of an access dispute apply to the determination of any dispute arising under any provision of the Rules specified in the Rules for the purposes of this section. (2) This section applies subject to any modification of the provisions of this Chapter specified in the Rules. 151—Chapter does not limit how disputes about access may be raised or dealt with This Chapter does not limit how a dispute about access to a pipeline service may be raised or dealt with. Part 2—Notice of access dispute and other provisions Division 1—Notice of access dispute 152—Notice of access dispute (1) This section applies if there is an access dispute between a user or prospective user and a service provider. (2) The user, prospective user or service provider may give a notice in writing to the following entity that the access dispute exists— (a) for a scheme pipeline access dispute—the dispute resolution body; (b) for a non‑scheme pipeline access dispute—the AER. (3) A notice given under subsection (2) must— (a) include information about— (i) the matters (if any) on which agreement has been reached; and (ii) the matters that are in dispute; and (iii) any other matter specified by the Rules; and (b) be accompanied by— (i) if an access dispute is a scheme pipeline access dispute—the fee prescribed by the Regulations (if any); or (ii) if an access dispute is a non‑scheme pipeline access dispute—the fee set by the AER from time to time and specified on the AER's website; and (c) be given to any other party to any negotiations that gave rise to the dispute as soon as practicable after it is given to the dispute resolution body or AER; and (4) The user, prospective user, or service provider may not give a notice under subsection (2) if the dispute relates to a matter excluded from the operation of this Chapter by the Rules. 153—Withdrawal of notice Subject to the Rules, a notice given under section 152 may be withdrawn— (a) in accordance with the Rules; and (b) at any time before an access determination is made in relation to the dispute. Division 2—Parties to an access dispute 154—Parties to an access dispute (1) The parties to an access dispute are— (a) the parties to any negotiations that gave rise to the access dispute; and (b) if the dispute resolution body or AER (as the case requires) is of the opinion that the resolution of the access dispute may involve requiring another person to do something and that it is appropriate that the person be joined as a party—that other person; and (c) if a small shipper is a party and has elected, in accordance with the Rules, for a user association to be joined as a party—the user association; and (d) if the access dispute is a scheme pipeline access dispute—any other person who applies in writing, in accordance with the Rules, to be made a party and is accepted by the dispute resolution body as having a sufficient interest. user association means an association or body, whether incorporated or not— (a) the members of which include more than 1 user or prospective user; and (b) that represents and promotes the interests of those members in relation to the provision of pipeline services. Part 3—Alternative dispute resolution for access disputes Division 1—Alternative dispute resolution for scheme pipeline access disputes 155—Dispute resolution body may require parties to engage in alternative dispute resolution (1) This section applies if the dispute resolution body receives a notice of a scheme pipeline access dispute under section 152. (2) The dispute resolution body may require the parties to the dispute, in accordance with the Rules, to mediate, conciliate or engage in another alternative dispute resolution process for the purpose of resolving the dispute. (3) A party must comply with a requirement under subsection (2). Division 2—Mediation of access disputes involving small shippers 156—Small shipper may elect to have access dispute mediated A small shipper who is a party to an access dispute may, in accordance with the Rules, elect for the dispute to be resolved by mediation. 157—Appointment of mediator (1) This section applies if a small shipper makes an election under section 156. (2) The parties to the access dispute may agree to appoint, in accordance with the Rules, a mediator to resolve the dispute. (3) If the parties do not agree to the appointment of a mediator within a period specified by the Rules, the AER must— (a) consult with the parties to the dispute about the appointment of a mediator; and (b) after consultation, appoint a mediator the AER considers appropriate for the dispute. (4) A mediator must be a person who— (a) is independent of the parties to the dispute; and (b) is properly qualified to act in the resolution of the dispute; and (c) has no direct or indirect interest in the outcome of the dispute. (5) If a mediator does not, for any reason, complete a mediation of a dispute, the parties to the dispute may agree to appoint, in accordance with the Rules, an alternative mediator to resolve the dispute. (6) However, if the parties do not agree to the appointment of an alternative mediator within a period specified by the Rules, the AER must appoint another mediator in the way set out under subsection (3). (7) If an alternative mediator does not, for any reason, complete a mediation of the dispute, the dispute must be determined by the relevant adjudicator for the dispute under Part 5. 158—Party's lawyer may be present at mediation A party to a mediation may have a lawyer present at the mediation. Part 4—Arbitration of non‑scheme pipeline access disputes 159—Reference of non‑scheme pipeline access dispute to arbitration (1) This section applies if the AER receives a notice of a non‑scheme pipeline access dispute under section 152. (2) The AER must refer the dispute to arbitration. (3) The AER must give notice of the referral of an access dispute to arbitration to— (a) the parties to the access dispute; and (b) if relevant, any other person who will be a party to the access dispute. (4) However, this section applies subject to section 156. 160—Appointment of arbitrator (1) This section applies if a non‑scheme pipeline access dispute is referred to arbitration under section 159. (2) The parties to the access dispute may agree to appoint, in accordance with the Rules, an arbitrator to resolve the dispute. (3) If the parties do not agree to the appointment of an arbitrator within a period specified by the Rules, the AER must— (a) consult with the parties to the dispute about the appointment of an arbitrator; and (b) after consultation, appoint an arbitrator the AER considers appropriate for the dispute. (4) An arbitrator must be a person who— (a) is independent of the parties to the dispute; and (b) is properly qualified to act in the resolution of the dispute; and (c) has no direct or indirect interest in the outcome of the dispute. (5) If an arbitrator does not, for any reason, complete an arbitration of a dispute, the parties to the dispute may agree to appoint, in accordance with the Rules, an alternative arbitrator to resolve the dispute. (6) However, if the parties do not agree to the appointment of an alternative arbitrator within a period specified by the Rules, the AER must appoint another arbitrator in the way set out under subsection (3). Part 5—Access determination Division 1—Determination of access disputes generally 161—Determination of access dispute (1) Unless the relevant adjudicator for an access dispute terminates the access dispute under Part 7, the relevant adjudicator must make a determination on access by the user or prospective user (as the case requires) (including a determination that does not require a service provider to provide access to any pipeline services). (2) In making an access determination, the relevant adjudicator must comply with this Chapter and the Rules. (3) An access determination may deal with any matter relating to access by the user or prospective user to the pipeline services specified by the Rules for the purposes of this subsection. (4) The Rules may also, in connection with the making of an access determination, contain provisions for or with respect to such things as— (a) the form of any determination; and (b) the content of any determination, including as to the giving of reasons; and (c) the time within which a determination must be made; and (d) the process for making a determination; and (e) when a determination takes effect; and (f) the giving of notice of the making of a determination; and (g) the publication of an access determination and other information related to the determination, including a statement of reasons for making the access determination, relevant financial calculations and any reports. 162—Matters to be taken into account for access disputes In making an access determination, the relevant adjudicator for an access dispute the subject of the determination must take into account any matters specified in the Rules for the purposes of this section. 163—Restrictions on access determinations (1) An access determination must not have any of the following effects: (a) preventing a user from obtaining a sufficient amount of a pipeline service under a contract or previous access determination to be able to meet the user's reasonably anticipated requirements, measured at the time the access dispute was notified; (b) preventing a user or prospective user from obtaining, by the exercise of a pre‑notification right, a sufficient amount of a pipeline service to be able to meet the user's or prospective user's actual requirements; (c) depriving a person of a relevant protected contractual right. pre-notification right means a right under a contract, or under an access determination, that was in force at the time when the access dispute was notified under section 152; relevant exclusivity right means an express contractual right that arose on or after 30 March 1995 that— (a) prevents a service provider supplying pipeline services to persons who are not parties to the contract; or (b) limits or controls a service provider's ability to supply pipeline services to persons who are not parties to the contract, but does not include a user's contractual right to obtain a certain amount of pipeline services; relevant protected contractual right means a right under a contract (other than a relevant exclusivity right) that was in force immediately before the notification of an access dispute under section 152. 164—Access determinations and part contributions of capital to fund installations or the construction of new facilities (1) In making an access determination, the relevant adjudicator for an access dispute the subject of the determination may take into account past contributions of capital to fund installations or the construction of new facilities for the access dispute pipeline. (2) Without limiting section 74, the Rules may— (a) specify the matters that the relevant adjudicator must address in making that access determination; and (b) specify the content of that access determination. Division 2—Particular provisions relating to scheme pipeline access disputes 165—Access determination must give effect to applicable access arrangement (1) This section applies subject to sections 161, 164 and 166 and any Rules made for the purposes of this Part. (2) In making an access determination for a scheme pipeline access dispute, the dispute resolution body must give effect to the applicable access arrangement (the relevant applicable access arrangement)— (a) applying to the pipeline services provided, or to be provided, by means of the access dispute pipeline; and (b) in effect at the time the determination is made. (3) Subsection (2) applies even though the relevant applicable access arrangement may not have been in force when notice of the access dispute was given. 166—Rules may allow determination that varies applicable access arrangement for installation of a new facility (1) This section applies in relation to an access determination for a scheme pipeline access dispute that requires— (a) a service provider to install or construct a new facility to expand the capacity of the access dispute pipeline; and (b) the user or prospective user who is a party to the access dispute to contribute some or all of the capital to fund the installation or construction of the new facility. (2) Without limiting section 74, the Rules may— (a) confer a function or power on the dispute resolution body, when making the access determination, to vary the applicable access arrangement; and (b) specify the matters that the dispute resolution body must address in making the access determination; and (c) specify the kinds of variations that may be made to the applicable access arrangement; and (d) specify the content of the access determination. Part 6—Variation of access determinations 167—Variation of access determination—scheme pipeline disputes (1) This section applies in relation to an access determination for a scheme pipeline access dispute. (2) The dispute resolution body may vary the access determination on the application of any party to the determination, but cannot vary the final determination if any other party objects. If the parties cannot agree on a variation, a new access dispute can be notified under section 152. (3) Section 163 applies to a variation under this section as if— (a) an access dispute arising out of the access determination had been notified when the application was made to the dispute resolution body for the variation of the determination; and (b) the variation were the making of an access determination in the terms of the varied determination. 168—Variation of access determination—non‑scheme pipeline disputes (1) This section applies in relation to an access determination for a non‑scheme pipeline access dispute. (2) The access determination may be varied by agreement between all parties to the access determination. (3) The Rules may also contain provisions with respect to seeking variations to an access determination. (4) The provisions of this Chapter about the arbitration of an access dispute apply with necessary modifications to a proposal under the Rules to vary an access determination or to a dispute arising out of such a proposal. Part 7—Termination of access dispute 169—Relevant adjudicator may terminate access dispute in particular circumstances (1) The relevant adjudicator for an access dispute may at any time terminate the access dispute (without making an access determination) if— (a) the notice of dispute given under section 152 is withdrawn; or (b) the relevant adjudicator considers that— (i) the pipeline service the subject of the access dispute could be provided on a genuinely competitive basis by a person other than the service provider or an associate of the service provider; or (ii) the notice of the access dispute was vexatious; or (iii) the subject matter of the dispute is trivial, misconceived or lacking in substance; or (iv) the party who notified the access dispute did not negotiate in good faith; or (v) a specified dispute termination circumstance has occurred; or (vi) there is some other good reason why the dispute should be terminated. (2) Subject to section 163, the relevant adjudicator for an access dispute may also terminate the access dispute (without making an access determination) if the relevant adjudicator considers that the aspect of access about which there is a dispute is expressly or impliedly dealt with under a contract between the user or prospective user and the service provider. (3) Furthermore, a relevant adjudicator who is an arbitrator for a non‑scheme pipeline access dispute may terminate an arbitration (without making an access determination) if the arbitrator considers that the user or prospective user seeking access is not engaging in the arbitration in good faith. specified dispute termination circumstance means a circumstance specified by the Rules as being a circumstance, the occurrence of which, entitles the relevant adjudicator for an access dispute to terminate the access dispute (without making an access determination).