Part 9Access dispute hearing procedure

Part 9—Access dispute hearing procedure 172—Part applies subject to any modifications prescribed by the Regulations This Part applies subject to any modifications prescribed by the Regulations. 173—Fast track resolution process—scheme pipeline access disputes A scheme pipeline access dispute may be dealt with in accordance with a fast track resolution process under the Rules in the circumstances provided for in the Rules. 174—Hearing to be in private (1) A dispute hearing is to be in private. (2) However, if the parties agree, a dispute hearing or part of a dispute hearing may be conducted in public. (3) The relevant adjudicator for an access dispute the subject of the dispute hearing may give written directions as to the persons who may be present at a dispute hearing that is conducted in private. (4) In giving directions under subsection (3), the relevant adjudicator must have regard to the wishes of the parties and the need for commercial confidentiality. 175—Right to representation In a dispute hearing, a party may appear in person or be represented by another person. 176—Procedure of relevant adjudicator (1) In a dispute hearing the relevant adjudicator for an access dispute— (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act as speedily as a proper consideration of the access dispute allows, having regard to the need to carefully and quickly inquire into and investigate the access dispute and all matters affecting the merits, and fair settlement, of the access dispute; and (c) may inform itself about any matter relevant to the access dispute in any way it thinks appropriate. (2) The relevant adjudicator may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties in the dispute hearing, and may require that the cases be presented within those periods. (3) The relevant adjudicator may require evidence or argument to be presented in writing, and may decide the matters on which the relevant adjudicator will hear oral evidence or argument. (4) The relevant adjudicator may determine that a dispute hearing is to be conducted by— (a) telephone; or (b) closed circuit television; or (c) any other means of communication. (5) The Rules may make further provision about the procedure for the conduct of dispute hearings. 177—Particular powers of relevant adjudicator in a hearing (1) The relevant adjudicator for an access dispute may do any of the following things for the purpose of determining the access dispute: (a) give a direction in the course of, or for the purpose of, a dispute hearing; (b) hear and determine the access dispute in the absence of a party who has been given notice of the dispute hearing; (c) sit at any place; (d) adjourn to any time and place; (e) refer any matter to an independent expert and accept the expert's report as evidence. (2) The relevant adjudicator may make an interim determination. 178—Role of a dispute resolution expert (1) This section applies if, for the purpose of determining an access dispute, a matter is referred to an independent expert under section 177(1)(e). (2) The expert is to be appointed on terms and conditions determined by the relevant adjudicator for the access dispute. (3) The expert must report to the relevant adjudicator in accordance with the requirements of the relevant adjudicator. (4) The independent expert must— (a) have knowledge and experience that is relevant to the matter; and (b) not have any material direct or indirect interest or association that compromises, or is likely to compromise, the impartiality of the expert; and (c) disclose to the relevant adjudicator any material or indirect interest or association that compromises, or would reasonably be seen to compromise, the impartiality of the expert. 179—Disclosure of information (1) The relevant adjudicator for an access dispute may give an oral or written order to a person not to divulge or communicate to anyone else specified information that was given to the person in the course of the access dispute unless the person has the relevant adjudicator's permission. (2) A person must not, without reasonable excuse, refuse or fail to comply with an order under subsection (1). 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. 180—Power to take evidence on oath or affirmation (1) The relevant adjudicator for an access dispute may take evidence on oath or affirmation and for that purpose the relevant adjudicator may administer an oath or affirmation. (2) The relevant adjudicator may summon a person to appear before the relevant adjudicator to— (a) give evidence; or (b) produce such documents (if any) as are referred to in the summons; or (c) give evidence and produce such documents (if any) as are referred to in the summons. (3) The powers in this section may be exercised only for the purposes of hearing and determining the access dispute. 181—Failing to attend as a witness A person who is served, as prescribed by the Regulations, with a summons to appear as a witness at a dispute hearing before the relevant adjudicator for an access dispute must not, without reasonable excuse— (a) fail to attend as required by the summons; or (b) fail to appear and report from day to day unless excused, or released from further attendance, by the relevant adjudicator. Maximum penalty: $6 300. 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. 182—Failing to answer questions etc (1) A person appearing at a dispute hearing as a witness before the relevant adjudicator for an access dispute the subject of the dispute hearing must not, without reasonable excuse— (a) refuse or fail to be sworn or to make an affirmation; or (b) refuse or fail to answer a question that the person is required to answer by the relevant adjudicator; or (c) refuse or fail to produce a document that the person is required to produce by a summons under this Chapter served on the person as prescribed by the Regulations. 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. (2) It is a reasonable excuse for the purposes of subsection (1) for a natural person to refuse or fail to answer a question or produce a document on the ground that the answer or the production of the document might— (a) tend to incriminate the person; or (b) expose the person to a criminal penalty. (3) Subsection (2) does not limit what is a reasonable excuse for the purposes of subsection (1). 183—Intimidation etc A person must not— (a) threaten, intimidate or coerce another person; or (b) cause or procure damage, loss or disadvantage to another person, because that other person— (c) proposes to produce, or has produced, documents to the relevant adjudicator for a dispute hearing; or (d) proposes to appear, or has appeared, as a witness before the relevant adjudicator for a dispute hearing. Maximum penalty: $6 300. 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. 184—Particular powers of a relevant adjudicator in a hearing (1) A party in a dispute hearing may— (a) inform the relevant adjudicator for an access dispute the subject of the dispute hearing that, in the party's opinion, a specified part of a document contains confidential information (the relevant part of the document); and (b) request the relevant adjudicator not to give a copy of the relevant part of the document to another party. (2) On receiving a request, the relevant adjudicator must— (a) inform the other party or parties that the request has been made and of the general nature of the matters to which the relevant part of the document relates; and (b) ask the other party or parties whether there is any objection to the relevant adjudicator complying with the request. (3) If there is an objection to the relevant adjudicator complying with the request, the party objecting may inform the relevant adjudicator of the objection and of the reasons for it. (4) The relevant adjudicator must consider— (a) a request; and (b) any objection; and (c) any further submissions that any party has made in relation to the request. (5) After considering the matters mentioned in subsection (4), the relevant adjudicator may decide— (a) not to give the other party or parties a copy of any part of the relevant part of the document that the relevant adjudicator thinks should not be given; or (b) to give the other party or another specified party a copy of the whole, or part, of the relevant part of the document subject to— (i) a condition that the party give an undertaking not to disclose the information contained in the relevant part of the document to another person except to the extent specified by the relevant adjudicator; and (ii) any other condition the relevant adjudicator considers appropriate.