Subdiv 1Interpretation

Subdivision 1—Interpretation 43—Definitions contributing service has the meaning given by section 44; related provider means a person who supplies a contributing service to a service provider. 44—Meaning of contributing service (1) A contributing service is a service that the AER, in accordance with this section, decides is a service that contributes in a material way to the provision of a pipeline service by a service provider. (2) In deciding whether a service is a service that contributes in a material way to the provision of a pipeline service by a service provider, the AER must have regard to— (a) the nature and kind of the service; (b) when the service was first supplied; (c) the nature and extent of the contribution of the service relative to— (i) the pipeline service; and (ii) all other services supplied by the service provider; (d) whether the service was previously supplied— (i) by the service provider; or (ii) directly or indirectly by an associate of the service provider; (e) whether the service, together with other services, contributes in a material way to the provision of pipeline services; (f) any other matter specified under the Rules. 45—Meaning of general regulatory information order (1) A general regulatory information order is an order made by the AER in accordance with this Division that requires each service provider of a specified class, or each related provider of a specified class, to do either or both of the following: (a) provide to the AER the information specified in the order; (b) prepare, maintain or keep information specified in the notice in a manner and form specified in the order. (2) A general regulatory information order does not include an order that is made as a price information order. 46—Meaning of regulatory information notice (1) A regulatory information notice is a notice prepared and served by the AER in accordance with this Division that requires the service provider, or a related provider, named in the notice to do either or both of the following: (a) provide to the AER the information specified in the notice; (b) prepare, maintain or keep information specified in the notice in a manner and form specified in the notice. (2) A regulatory information notice does not include an order that is made as a price information order. 46A—Meaning of price information order (1) A price information order is an order made by the AER in accordance with this Division that requires a person of a specified class to provide to the AER information— (a) that relates to the AER gas price reporting functions; and (b) that is specified in the order. (2) The order may require a person to whom the order relates to prepare, maintain or keep information specified in the order in a manner and form specified in the order. 47—Division does not limit operation of information gathering powers under Division 3 This Division does not limit the operation of Division 3. Subdivision 2—Serving and making of regulatory information instruments 48—Service and making of regulatory information instruments (1) Subject to this Division, the AER, if it considers it reasonably necessary for the performance or exercise of its functions or powers under this Law or the Rules, may— (a) serve a regulatory information notice on a service provider or a related provider; or (b) make a general regulatory information order. (2) In considering whether it is reasonably necessary to serve a regulatory information notice, or make a general regulatory information order, the AER must have regard to— (a) the matter to be addressed by— (i) the service of the regulatory information notice; or (ii) the making of the general regulatory information order; and (b) the likely costs that may be incurred by an efficient service provider or efficient related provider in complying with the notice or order. The AER must also exercise its powers under this section in a manner that will or is likely to contribute to the achievement of the national gas objective: see section 28. (2a) Subject to this Division, the AER, if it considers it reasonably necessary for the performance of its AER gas price reporting functions, may make a price information order. (3) A regulatory information notice must not be served, or a general regulatory information order or a price information order must not be made, solely for the purpose of— (a) investigating breaches or possible breaches of provisions of this Law, the Regulations or the Rules, including offences against this Law; or (b) instituting and conducting proceedings in relation to breaches of provisions of this Law, the Regulations or the Rules, including offences against this Law; or (c) instituting and conducting appeals from decisions in proceedings referred to in paragraph (b); or (e) any application for review of a decision of the AER under Chapter 8 Part 5. 49—Additional matters to be considered for related provider regulatory information instruments (1) This section applies if the AER is intending to— (a) serve a regulatory information notice on a related provider; or (b) make a general regulatory information order that will apply to a class of related providers. (2) In addition to the matters set out in section 48(2), the AER, in considering whether it is reasonably necessary to serve the regulatory information notice, or make the general regulatory information order, must have regard to— (a) whether the service provider being supplied a contributing service by the related provider or related providers to which the intended regulatory information instrument will apply can— (i) provide the information to be specified in that instrument; or (ii) prepare, maintain or keep the information to be specified in the particular manner and form to be specified in that instrument; and (b) the extent to which the related provider or related providers to which the intended regulatory information instrument will apply is, or are, supplying a contributing service on a genuinely competitive basis; and (c) the nature of any ownership or control between— (i) the service provider being supplied a contributing service by a related provider to which the intended regulatory information instrument will apply; and (ii) that related provider; and (d) the nature of any ownership or control as between different related providers supplying the contributing service to the service provider; and (e) any other matter the AER considers relevant. (3) For the purposes of subsection (2)(b), in considering whether a contributing service is being supplied on a genuinely competitive basis, the AER may take into account— (a) whether there is effective competition in the market for the supply of the contributing service; and (b) whether the related provider supplies the contributing service to a service provider under a contract, arrangement or understanding entered into with that service provider following a competitive process for the awarding of the right to enter into that contract, arrangement or understanding involving persons who were not associates of the service provider. 50—AER must consult before publishing an order The AER must, in accordance with the Rules, consult with the public on the general regulatory information order or the price information order it intends to make before it makes that order. See also section 65 about what the AER must and may do after receiving submissions. 51—Publication requirements for orders As soon as practicable after making a general regulatory information order or a price information order, the AER must— (a) publish the order on the AER's website; and (b) arrange for notice of the making of the order to be published in the South Australian Government Gazette. 52—Opportunity to be heard before regulatory information notice is served (1) The AER, before serving a regulatory information notice, must— (a) notify, in writing, the service provider, or the related provider, on whom the AER intends to serve the regulatory information notice of its intention to do so; and (b) give the service provider, or the related provider, a draft of the regulatory information notice it intends to serve. (2) If the regulatory information notice to be served is an urgent notice, the AER must, in a notice under subsection (1)— (a) identify the regulatory information notice to be served as an urgent notice; and (b) give its reasons, in writing, why the regulatory information notice to be served is an urgent notice. (3) A regulatory information notice is an urgent notice if— (a) under the notice the AER will require the service provider or related provider to provide information to the AER; and (b) that requirement has arisen because the AER considers it must deal with or address a particular matter or thing in order for it to make an AER economic regulatory decision or a rate of return instrument; and (c) the AER considers that, having regard to the time within which it must make that AER economic regulatory decision or rate of return instrument, the time within which the AER requires the information is of the essence. (4) A notice under subsection (1) must— (a) invite the service provider, or the related provider, to make written representations to the AER as to whether the AER should serve the regulatory information notice on them; and (b) specify the period within which the service provider, or the related provider, may make the representations. (5) The period that must be specified in accordance with subsection (4) must be— (a) in the case of an urgent notice to be served—a period of not less than 5 business days and not more than 10 business days calculated from the date of the notice under subsection (1); (b) in all other cases—a period of at least 20 business days calculated from the date of the notice under subsection (1). (6) The AER must consider the written representations made in accordance with a notice under subsection (1) before making its decision in accordance with this Division to serve the regulatory information notice. Subdivision 3—Form and content of regulatory information instruments 53—Form and content of regulatory information instrument (1) A regulatory information instrument— (a) must specify the information required to be— (ii) prepared, maintained or kept in the particular manner and form specified in the instrument; and (b) may specify the manner and form in which the information described in the instrument is required to be— (ii) prepared, maintained or kept; and (c) except in the case of a price information order, must state the reasons of the AER for requiring the information described in the instrument to be— (ii) prepared, maintained or kept in the particular manner and form specified in the instrument; and (d) in the case of an instrument requiring information to be provided to the AER, must specify when the information must be provided. (2) In the case of a regulatory information notice, the notice must name the service provider or the related provider to whom it applies. (3) In the case of a general regulatory information order or a price information order, the order must specify the class of persons to whom the order applies. 54—Further provision about the information that may be described in a regulatory information instrument (1) Without limiting section 53(1)(a), the information that may be required to be provided to the AER, or to be prepared, maintained or kept, may include— (a) historic, current and forecast information (including financial information); (b) information that is or may be derived from other information in the possession or control of the person to whom the instrument applies; (c) information to enable the AER to verify whether the service provider to whom the instrument applies is or has been complying with Chapter 4; (d) information to enable the AER to verify compliance with any requirements for the allocation of costs between covered gas services under— (i) the Rules; or (ii) an applicable access arrangement. (2) Subsection (1)(c) and (d) do not apply in relation to a price information order. 55—Further provision about manner in which information must be provided to AER or kept Without limiting section 53(1)(b), a regulatory information instrument may require that the information specified in the instrument— (a) be provided to the AER, or prepared, maintained or kept, on an annual basis or some other basis, including on the occurrence of a specified event or state of affairs; (b) be provided to the AER, or prepared, maintained or kept, in accordance with specified Rules; (c) be provided to the AER, or prepared, maintained or kept, in accordance with any document, code, standard, rule, specification or method formulated, issued, prescribed or published by the AER or any person, authority or body whether— (i) wholly or partially or as amended by the instrument; or (ii) as formulated, issued, prescribed or published at the time the instrument is served or published or at any time before the instrument is served or published; or (iii) as amended from time to time; The AER may require a service provider to provide information in a form and manner that complies with relevant accounting standards. (d) be verified by way of statutory declaration by an officer of the person to whom the instrument applies; (e) be audited— (i) by a class of person specified in the instrument before it is provided to the AER; and (ii) at the expense of the person to whom the instrument applies. Subdivision 4—Compliance with regulatory information instruments 56—Compliance with regulatory information notice that is served On being served a regulatory information notice, a person named in the notice must comply with the notice. 57—Compliance with order (1) On publication of a general regulatory information order or a price information order in accordance with section 51, a person who is a member of the class of persons to which the order applies must comply with the order. (2) Subsection (1) does not apply to a person who has been given an exemption under section 58. 57A—Confidentiality issues (1) If a person wishes, in complying with a regulatory information instrument, to give information to the AER in confidence, the person must, when the information is given to the AER— (a) make a claim of confidentiality; and (b) provide reasons in support of the claim, which must include— (i) information about any detriment that might be caused to the person if the information were to be disclosed by the AER; and (ii) information— (A) that is reasonably within the person's knowledge and capacity to give; and (B) that may be relevant to the AER's consideration under section 329 of whether such detriment may be considered as outweighing the public benefit in disclosing the information. (2) A person may, in providing reasons in support of a claim under subsection (1) in respect of information received from another person (a third party), include information— (a) that is reasonably within the person's knowledge and capacity to give; and (b) that— (i) is about any detriment that might be caused to the third party if the information were to be disclosed by the AER; and (ii) may be relevant to the AER's consideration under section 329 of whether such detriment may be considered as outweighing the public benefit in disclosing the information. (3) A person must, in acting under subsection (1), specifically identify the information in relation to which the claim is made. (4) Information given to the AER in compliance with a regulatory information instrument is not to be regarded as being given to the AER in confidence (or to be confidential in any other respect) unless it is subject to an express claim of confidentiality made in accordance with this section. (5) This section does not apply in relation to a price information order. 57B—Disclosure of information given to AER in compliance with regulatory information instrument (1) The AER, in relation to information given to the AER in compliance with a regulatory information instrument, other than a price information order, is authorised to— (a) if no claim of confidentiality has been made in accordance with section 57A in relation to the information, disclose the information; (b) if a claim of confidentiality has been made in accordance with section 57A in relation to the information, disclose the information in accordance with Chapter 10 Part 2 Division 1. (2) The AER, in relation to information given to the AER in compliance with a price information order, is to treat the information as having been given to it in confidence and is authorised to disclose the information in accordance with Chapter 10 Part 2 Division 1. 58—Exemption from compliance with general regulatory information order or price information order (1) The AER may exempt a person, or a class of person, from complying with section 57— (a) unconditionally or on specified conditions; or (b) wholly or to the extent as is specified in the exemption. (2) An exemption under this section must be in writing. 59—Assumptions where there is non-compliance with regulatory information instrument (a) under a regulatory information instrument the AER— (i) requires a service provider to provide information to the AER for the purpose of enabling the AER to make an AER economic regulatory decision relating to the service provider or to make a rate of return instrument; or (ii) requires a related provider to provide information to the AER that is relevant to the making of an AER economic regulatory decision relating to a service provider or the making of a rate of return instrument; and (b) the service provider or related provider— (i) does not provide the information to the AER in accordance with the applicable regulatory information instrument; or (ii) provides information that is insufficient (when compared to what was requested under the applicable regulatory information instrument). (2) Without limiting sections 56 and 57 and despite anything to the contrary in this Law or the Rules, the AER— (a) may make the AER economic regulatory decision or the rate of return instrument on the basis of the information the AER has at the time it makes that decision or instrument; and (b) in making that decision or instrument, may make reasonable assumptions (including assumptions adverse to the interests of the service provider) in respect of the matters the information required under the regulatory information instrument would have addressed had that information been provided as required. (3) This section does not apply in relation to a price information order. Subdivision 5—General 60—Providing to AER false and misleading information A person must not, in purported compliance with a regulatory information instrument requiring the person to provide information to the AER, provide information to the AER that the person knows is false or misleading in a material particular. 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. 61—Person cannot rely on duty of confidence to avoid compliance with regulatory information instrument (1) A person must not refuse to comply with a regulatory information instrument on the ground of any duty of confidence. (2) A person incurs, by complying with a regulatory information instrument, no liability for breach of contract, breach of confidence or any other civil wrong. 62—Legal professional privilege not affected A regulatory information instrument, and sections 56 and 57, are not to be taken as requiring a person to— (a) provide to the AER information that is the subject of legal professional privilege; or (b) produce a document to the AER the production of which would disclose information that is the subject of legal professional privilege. 63—Protection against self-incrimination (1) It is a reasonable excuse for a natural person to whom section 56 applies not to comply with a regulatory information notice served on the person requiring the person to provide information to the AER if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another participating jurisdiction. (2) It is a reasonable excuse for a natural person to whom section 57 applies not to comply with a general regulatory information order or a price information order made requiring the person to provide information to the AER if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another participating jurisdiction.