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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to amend the National Gas (South Australia)
Act 2008.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of National Gas (South Australia)
Act 2008
4 Amendment of section 12—Specific
regulation-making power
5 Insertion of sections 20, 21 and
22
20 Freedom of information
21 Role
of AEMO
22 Ministerial power to suspend operation of
2009 Amendment Act
Part 3—Amendment of National Gas
Law
6 Amendment of section 2—Definitions
7 Amendment of
section 3—Meaning of civil penalty provision
8 Amendment of section
4—Meaning of conduct provision
9 Amendment of section 8—Meaning
of service provider
10 Amendment of section 22—Ministers of
participating jurisdictions
11 Amendment of section 27—Functions and
powers of the AER
12 Amendment of section 55—Further provision about
manner in which information must be provided to AER or kept
13 Amendment of
section 74—Subject matter for National Gas Rules
14 Insertion of
Chapter 2, Parts 6 and 7
Part 6—Role of AEMO under National Gas Law
Division 1—General
91A AEMO's statutory
functions
91AB AEMO’s power to carry out
statutory functions
91AC Delegation
Division 2—AEMO's declared system functions
Subdivision 1—Preliminary
91B Application of this
Division
91BA AEMO's declared system
functions
91BB AEMO to account to relevant Minister for
performance of declared system functions
Subdivision 2—Power of direction
91BC AEMO’s
power of direction
91BD Protection from
liability
Subdivision 3—AEMO’s relationship with transmission system
service providers and facility owners
91BE Service envelope
agreement between AEMO and transmission pipeline service
provider
91BF Interconnection with
facilities
91BG Operating agreement between AEMO and
facility owner
91BH General principles governing
determinations
Subdivision 4—Declared wholesale gas
market
91BI Market
participation
91BJ Registration required for market
participation
91BK Certificates of registration
etc
Subdivision 5—Wholesale Market
Procedures
91BL Wholesale Market
Procedures
91BM Nature of Wholesale Market
Procedures
91BN Compliance with Wholesale Market
Procedures
Subdivision 6—Ownership of gas in declared transmission
system
91BO Ownership of
gas
91BP Title to gas
Subdivision
7—Immunity
91BQ Immunity
91BR Immunity
in dealing with an emergency
Division 3—Information etc to be provided to
Ministers
91C Ministerial
request
91CA Compliance with
request
91CB Quarterly report
Division 4—Gas statement of
opportunities
91D Object and content of gas statement of
opportunities
91DA AEMO’s obligation in regard to
gas statement of opportunities
Division 5—Fees and charges
91E AEMO fees and
charges
Division 6—Information gathering
91F Information
gathering powers
91FA Making and publication of general
market information order
91FB Service of market
information notice
91FC Compliance with market
information instrument
91FD Use of
information
91FE Providing false or misleading
information
Division 7—Protected information
Subdivision 1—AEMO's obligation to protect
information
91G Protected information
Subdivision 2—Disclosure of protected information held by
AEMO
91GA Authorised disclosure of protected
information
91GB Disclosure with prior written
consent
91GC Disclosure required or permitted by law
etc
91GD Disclosure for purposes of court and tribunal
proceedings
91GE Disclosure of document with omission
of protected information
91GF Disclosure of
non-identifying information
91GG Disclosure of
protected information for safety, proper operation of the market
etc
91GH Disclosure of protected information authorised
if detriment does not outweigh public benefit
Division 8—Obligation to make
payments
91H Obligations under Rules or Procedures to make
payments
Division 9—AEMO's statutory
funds
91J Definitions
91JA AEMO's
Rule funds
91JB Payments into and out of Rule
funds
91JC Investment
Division 10—Immunity
91K Immunity from
liability
91KA Supply interruption or disconnection in
compliance with AEMO’s direction
91KB Immunity in
relation to use of computer software
91KC Immunity from
liability—dispute resolution
Part 7—Regulation of retail gas markets
Division 1—Registration
91L Retail gas
markets
91LA Retail market
participation
91LB Registration required for market
participation
91LC Certificates of registration
etc
Division 2—Retail Market Procedures
91M Retail
Market Procedures
91MA Nature of Retail Market
Procedures
91MB Compliance with Retail Market
Procedures
15 Amendment of section 98—Initial
classification decision to be made as part of recommendation
16 Substitution
of heading to Chapter 7, Part 1
17 Substitution of sections 217 and
218
217 AEMO to be Bulletin Board
operator
218 AEMO’s obligation to maintain
Bulletin Board
18 Amendment of section 219—AEMO’s other
functions as operator of Natural Gas Services Bulletin Board
19 Repeal of
section 220
20 Repeal of section 221
21 Amendment of section
222—Fees for services provided
22 Amendment of
section 223—Obligation to give information to AEMO
23 Amendment of
section 225—Giving AEMO false or misleading information
24 Amendment of
section 226—Immunity of persons giving information to
AEMO
25 Substitution of Chapter 7, Part 3
Part 3—BB Procedures
227 BB
Procedures
228 Nature of BB
Procedures
228A Compliance with BB
Procedures
26 Amendment of section 229—Instituting civil
proceedings under this Law
27 Amendment of section 230—Time limits
within which proceedings may be instituted
28 Amendment of heading to Chapter
8, Part 2
29 Amendment of section 231—AER proceedings for breaches of
this Law, Regulations or the Rules that are not offences
30 Substitution of
section 243
243 Applications for judicial review of
AEMO’s decisions
31 Amendment of section
244—Definitions
32 Amendment of heading to Chapter 8, Part 5, Division
3
33 Amendment of section 263—Application for review
34 Amendment of
section 265—Determination in the review
35 Amendment of section
266—Tribunal must be taken to have affirmed decision if decision not made
within time
36 Substitution of section 267
267 Assistance
from AER or AEMO
37 Insertion of Chapter 8, Part 5A
Part 5A—Dispute resolution under the
Rules
270A Interpretation
270B Commercial
Arbitration Acts to apply to proceedings before Dispute resolution
panels
270C Appeals on questions of law from decisions
or determinations of Dispute resolution panels
38 Amendment of section
290—Definitions
39 Insertion of section
294A
294A South Australian Minister to make initial Rules and
Procedures related to AEMO's functions under this Law
40 Amendment of
section 295—Initiation of making of a Rule
41 Amendment of section
308—Draft Rule determination
42 Amendment of section
310—Pre-final Rule determination hearing may be held
43 Substitution of
section 312
312 Proposal to make more preferable
Rule
44 Insertion of section 328A
328A Disclosure of
information that has entered the public domain
45 Amendment of section
329—Disclosure of confidential information authorised if detriment does
not outweigh public benefit
46 Amendment of section 332—Failure to
make a decision under this Law or the Rules within time does not invalidate the
decision
47 Amendment of Schedule 1—Subject matter for the National Gas
Rules
48 Amendment of Schedule 2—Miscellaneous provisions relating
to interpretation
49 Amendment of Schedule 3—Savings and
transitionals
Part 11—Transitional provisions related to AEMO’s new functions
and its assumption of role of former gas market operators
Division
1—Preliminary
54 Definitions
Division 2—General provisions
55 Saving operation
of superseded jurisdictional rules
56 Transitional
provisions governing accrued and accruing rights, liabilities
etc
57 Investigations
58 Proceedings
for breach of superseded jurisdictional
rules
59 Dispute
resolution
60 Registered
participants
61 Instruments made by former gas market
operators
62 Rule change
proposals
63 Incompatibility between request for the
making of Rule or Procedure and Minister-initiated Rule or
Procedure
64 Natural Gas Services Bulletin
Board
65 Publication of notices
etc
66 Rights under change of law provisions not to be
triggered by amendments to this Law etc
Division 3—Transfer of assets and liabilities of GMC and AEMO
T
67 Transfer of assets and
liabilities
68 Transfer of AEMO T’s assets and
liabilities
69 Effect of relevant transfer
order
70 Continued effect of certain acts by GMC or
AEMO T
71 Continuation of
proceedings
72 Validity and effect of things done under
this Division
73 Evidence of
transfer
74 Obsolete references
Division 4—Acceptance of transfer from former gas market operators
and AEMO T
75 Parties to transfer must do anything
necessary to perfect transfer
76 Corporations Act
displacement
Division 5—Fees and charges
77 AEMO's fees and
charges
78 Establishment
expenditure
79 Expenditure on gas statement of
opportunities
Division 6—Information
80 Transferred
information
81 Calculations
Division 7—Deferral of relevant legislative innovations in
Queensland
82 Queensland Minister’s power to defer
commencement of relevant legislative innovations
Division 8—Special transitional provisions for South
Australia
83 Definitions
84 Transitional
contracts
85 Contractual provisions for dispute
resolution
86 Risk allocation
The Parliament of South Australia enacts as
follows:
This Act may be cited as the National Gas (South Australia) (National
Gas Law—Australian Energy Market Operator) Amendment
Act 2009.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the Acts Interpretation Act 1915 does not
apply to this Act or to a provision of this Act.
In this Act—
(a) a provision in Part 2 amends the National Gas (South Australia)
Act 2008; and
(b) a provision in Part 3 amends the National Gas Law set out in
the Schedule to the National Gas (South Australia)
Act 2008.
Part 2—Amendment
of National Gas (South Australia)
Act 2008
4—Amendment of
section 12—Specific regulation-making power
(1) Section 12(1)—delete subsection (1) and substitute:
(1) Without limiting the generality of section 11, the regulations may
deal with matters of a transitional nature—
(a) relating to the transition from the application of provisions of the
old access law or the Gas Code to the application of provisions of the
National Gas Law; or
(b) on account of any amendments made from time to time to the National
Gas Law.
(2) Section 12(2)—after "subsection (1)" insert:
(a)
(3) Section 12—after subsection (2) insert:
(2a) Any provision of the regulations that deals with a matter of a
transitional nature under subsection (1)(b) may be expressed to take effect from
a time that is earlier than the beginning of the day on which the regulations
containing the provision are made, not being a time earlier than the
commencement of the relevant amendment.
(4) Section 12(3)(a)—delete "or an entity" and substitute:
, an entity
(5) Section 12(3)(a)—after "National Gas Law" insert:
, a former gas market operator, or AEMO or AEMO T
(6) Section 12(3)(b)—delete "or an entity" and substitute:
, an entity
(7) Section 12(3)(b)—after "National Gas Law" insert:
, a former gas market operator, or AEMO or AEMO T
5—Insertion of
sections 20, 21 and 22
After section 19 insert:
20—Freedom of information
The following are exempt agencies for the purposes of the Freedom of
Information Act 1991:
(a) AEMO;
(b) an agent of AEMO with respect to functions performed under the Rules
or the Procedures.
21—Role of AEMO
(1) The Minister may, by notice in the Gazette—
(a) fix 2 dates for the purposes of the definition of changeover
date in section 2 of the National Gas (South Australia)
Law;
(b) specify which changeover date is the relevant changeover date for the
purposes of specified provisions of the National Gas (South Australia)
Law.
(2) In relation to the operation of section 91A(1) of the National
Gas (South Australia) Law—
(a) paragraphs (h) and (i) of subsection (1) will apply to, and in
relation to, South Australia from the first changeover date fixed by the
Minister; and
(b) paragraphs (b) and (g) of subsection (1) will also apply to, and in
relation to, South Australia from the first changeover date, but, until the
second changeover date, those paragraphs will only apply to the extent to which
the performance of the relevant functions by AEMO is not inconsistent with the
performance of functions by REMCo under a law of the State; and
(c) paragraphs (a), (c), (d), (e), (j), (k) and (l) of subsection (1) will
apply to, and in relation to, South Australia from the second changeover
date.
Note—
Subsection (2)(b), insofar as it applies to section 91A(1)(g) of the
National Gas (South Australia) Law, is intended to ensure that any
changes to the Procedures made by AEMO before the second changeover date that
relate to retail market procedures do not apply to, or in relation to, South
Australia until on or after the second changeover date.
(3) In this section—
REMCo means the Retail Energy Market Company Limited
(ACN 103 318 556).
22—Ministerial power to suspend operation of 2009
Amendment Act
(1) In this section—
2009 (AEMO) Amendment Act means the National Gas (South
Australia) (National Gas Law—Australian Energy Market Operator) Amendment
Act 2009.
(2) The Minister may, by notice in the Gazette, suspend the operation in
South Australia of a provision to be inserted into the National Gas Law
by the 2009 (AEMO) Amendment Act, as it applies as a law of South Australia
under section 7(a) of this Act—
(a) until a specified day; or
(b) until a day to be specified by the Minister by subsequent notice in
the Gazette.
(3) A notice under subsection (2)—
(a) will have effect in accordance with its terms; and
(b) will have effect for the purposes of the operation of the National
Gas (South Australia) Law but not as to affect the application, force or
effect of the National Gas Law in any other way.
(4) For the purposes of subsection (2), a reference to a provision to
be inserted into the National Gas Law extends to a part of a
provision.
Part 3—Amendment
of National Gas Law
6—Amendment of
section 2—Definitions
(1) Section 2, definitions of Bulletin Board information,
Bulletin Board operator, designated pipeline,
gas market operator, initial National Gas Rules,
Natural Gas Services Bulletin Board and
VENCorp—delete the definitions
(2) Section 2—insert the following definitions in alphabetical
order:
adoptive jurisdiction means a participating jurisdiction for
which AEMO is authorised to exercise its declared system functions;
AEMO amendments means—
(a) the amendments to this Law made by the National Gas (South
Australia) (National Gas Law—Australian Energy Market Operator) Amendment
Act 2009; and
(b) the amendments to the Rules made by the National Gas (South
Australia) (National Gas Rules—Australian Energy Market Operator)
Amendment Rules 2009; and
(c) the Procedures first made under this Law after the enactment of the
amendments referred to in paragraph (a);
application Act means an Act of a participating jurisdiction
that applies, as a law of that jurisdiction, this Law or any part of this
Law;
Australian Energy Market Operator or AEMO means
Australian Energy Market Operator Limited
(ACN 072 010 327);
BB Procedures means Procedures directed at regulating the
Natural Gas Services Bulletin Board;
Bulletin Board information means information
that—
(a) a person gives to AEMO to comply with section 223(1);
or
(b) a person gives to AEMO in its capacity as operator of the Natural Gas
Services Bulletin Board in circumstances expressly permitted by the
Rules;
changeover date means—
(a) a date fixed by or under legislation of a participating jurisdiction
for AEMO’s assumption of responsibility for the operation of a gas market
in the relevant jurisdiction under this Law and the Rules; or
(b) a date fixed by Ministerial Gazette notice as the changeover
date;
Note—
The changeover date may vary from gas market to gas market,
from provision to provision and from jurisdiction to jurisdiction. In addition,
AEMO’s assumption of statutory functions in a particular participating
jurisdiction may occur in stages on different changeover dates.
civil monetary liability means a liability for damages,
compensation or any other monetary amount that can be recovered by way of civil
proceedings but does not include a liability for a civil penalty or an
infringement penalty under this Law or a liability for the costs of a
proceeding;
declared distribution system of an adoptive jurisdiction has
the meaning given by the application Act of that jurisdiction;
declared LNG storage provider of an adoptive jurisdiction has
the meaning given by the application Act of that jurisdiction;
declared system functions—AEMO's declared system
functions are as set out in section 91BA(1);
declared system provisions means—
(a) Chapter 2, Part 6, Division 2; and
(b) the Rules regulating the declared wholesale gas market of an adoptive
jurisdiction or otherwise relevant to Chapter 2, Part 6,
Division 2;
declared transmission system of an adoptive jurisdiction has
the meaning given by the application Act of that jurisdiction;
declared wholesale gas market means the wholesale market for
natural gas defined in the application Act of an adoptive
jurisdiction;
designated pipeline means a pipeline classified by the
Regulations, or designated in the application Act of a participating
jurisdiction, as a designated pipeline;
Note—
A light regulation determination cannot be made in respect of pipeline
services provided by means of a designated pipeline: see sections 109 and
111.
Dispute resolution panel means a person or panel of persons
appointed under the Rules to hear and determine a rule dispute;
exempted participant means a person exempted from
registration as a Registered participant;
former gas market operator means any of the
following:
(a) VENCorp;
(b) Gas Market Company Limited (ACN 095 400 258);
(c) in relation to South Australia (but not Western
Australia)—Retail Energy Market Company Limited
(ACN 103 318 556);
(d) the gas retail market operator appointed under section 257A of
the Gas Supply Act 2003 (Qld);
gas statement of opportunities means the statement published
under Chapter 2, Part 6, Division 4;
general market information order means an order under
section 91F(1)(a) requiring information from persons of a class specified
in the order;
initial National Gas Procedures means National Gas Procedures
made under section 294A and includes Wholesale Market Procedures and BB
Procedures in force immediately before the commencement of the National Gas
(South Australia) (National Gas Law—Australian Energy Market Operator)
Amendment Act 2009;
initial National Gas Rules means the National Gas Rules made
under section 294 or 294A;
jurisdictional regulator means—
(a) for New South Wales—the Independent Pricing and Regulatory
Tribunal of New South Wales established by section 5(1) of the
Independent Pricing and Regulatory Tribunal Act 1992 of New South
Wales;
(b) for Victoria—the Essential Services Commission established by
section 7(1) of the Essential Services Commission Act 2001 of
Victoria;
(c) for Queensland—the Queensland Competition Authority established
by section 7 of the Queensland Competition Authority Act 1997 of
Queensland;
(d) for South Australia—the Essential Services Commission
established by section 4(1) of the Essential Services Commission
Act 2002 of South Australia;
(e) for Tasmania—the Director of Gas appointed under section 7
of the Gas Act 2000 of Tasmania;
(f) for the Australian Capital Territory—the Independent Competition
and Regulatory Commission for the Australian Capital Territory established by
section 5(1) of the Independent Competition and Regulatory Commission
Act 1997 of the Australian Capital Territory;
(g) any other person or body—
(i) to which the functions of the jurisdictional regulator for a
participating jurisdiction are assigned by or under an Act of the participating
jurisdiction; or
(ii) that is prescribed by the Regulations as jurisdictional regulator of
a participating jurisdiction;
market information instrument means a general market
information order or a market information notice;
market information notice means a notice under
section 91F(1)(b) requiring information from the person to whom the notice
is addressed;
Ministerial Gazette notice means a notice in the South
Australian Government Gazette published by the South Australian Minister on the
recommendation of the MCE;
National Gas Procedures or Procedures
means—
(a) the initial National Gas Procedures; and
(b) Procedures made by AEMO under this Law, including Procedures that
amend or revoke the initial National Gas Procedures or Procedures earlier made
by AEMO;
Natural Gas Services Bulletin Board means the website
maintained by AEMO that contains information of the kind specified in the Rules
in relation to natural gas services;
protected information has the meaning given by
section 91G;
recognised energy industry ombudsman means a body or person
classified by Regulation as a recognised energy industry ombudsman;
Registered participant means a person registered as such by
AEMO under this Law (section 91BJ or section 91LB) and the
Rules;
regulated gas market means—
(a) a declared wholesale gas market; or
(b) a regulated retail gas market;
regulated retail gas market has the meaning given by
section 91L(2);
REMCo means the Retail Energy Market Company Limited
(ACN 103 318 556);
retail gas market has the meaning given by
section 91L(1);
Retail Market Procedures means Procedures directed at
regulating a retail gas market;
rule dispute means a dispute for the resolution of which
provision is made in the Rules;
statutory functions, in relation to AEMO, means functions or
powers conferred under—
(a) this Law, the Rules or the Procedures; or
(b) the National Electricity Law or the National Electricity
Rules;
superseded jurisdictional rules means—
(a) legislation (including subordinate legislation) of a participating
jurisdiction regulating the gas industry in that jurisdiction
that—
(i) was in force immediately before the relevant changeover date;
and
(ii) is superseded by the AEMO amendments; and
(b) rules to which a member of a corporate former gas market operator was
subject, immediately before the relevant changeover date, under the constitution
of the former gas market operator; and
(c) a licence condition governing the activities of the licensee in, or in
relation to, a regulated retail gas market in a participating
jurisdiction—
(i) in force immediately before the relevant changeover date;
and
(ii) superseded by the AEMO amendments; and
(d) a guideline, code, standard or other instrument governing the
operation or regulation of a gas market in a participating
jurisdiction—
(i) made or issued by the jurisdictional regulator; and
(ii) in force immediately before the relevant changeover date;
and
(iii) superseded by the AEMO amendments;
Examples—
1 The Gas Market Retail Rules (Vic) and the Gas
Industry Market and System Operation Rules (Vic).
2 The Gas Retail Market Business Rules to Support
Retail Competition in Gas (NSW).
3 The Gas Market Retail Rules (Qld).
4 The Retail Market Rules (SA).
trader means a person who—
(a) buys or sells natural gas; and
(b) in doing so is not acting in some other registrable capacity;
and
(c) where the person is the purchaser of natural gas, is not buying the
natural gas for the purchaser’s own use;
VENCorp means the Victorian Energy Networks Corporation
continued under Part 8 of the Gas Industry Act 2001 of Victoria
until the AEMO amendments come into force;
Wholesale Market Procedures means Procedures directed at
regulating the declared wholesale gas market of an adoptive
jurisdiction;
(3) Section 2, definition of national gas legislation, (c),
(d) and (e)—delete “National Gas Access (Western Australia) Act
2008” wherever occurring and substitute in each case:
National Gas Access (WA) Act 2009
7—Amendment of
section 3—Meaning of civil penalty provision
(1) Section 3—after paragraph (b) insert:
or
(c) a declared system provision that is prescribed by or under the
application Act of the adoptive jurisdiction to be a civil penalty
provision.
(2) Section 3, Table—after item 2 insert:
2A |
Section 91BE(1) |
2B |
Section 91BF(1) |
2C |
Section 91BJ(1) |
2D |
Section 91BN(5) |
2E |
Section 91FC(3) and (4) |
2F |
Section 91LB(1) |
2G |
Section 91MB(6) |
(3) Section 3, Table, items 20 and 21—delete items 20 and
21
8—Amendment of
section 4—Meaning of conduct provision
(1) Section 4—after paragraph (b) insert:
or
(c) a declared system provision that is prescribed by or under the
application Act of the adoptive jurisdiction to be a conduct
provision.
(2) Section 4, Table—before item 1 insert:
A1 |
Section 91BP |
9—Amendment of
section 8—Meaning of service provider
Section 8(2)—delete subsection (2) and substitute:
(2) If AEMO controls or operates (without at the same time owning) a
pipeline or scheme pipeline, or any part of a pipeline or scheme pipeline, AEMO
is not for that reason to be taken to be a service provider for the purposes of
this Law.
10—Amendment of
section 22—Ministers of participating jurisdictions
Section 22(b)—delete "National Gas Access (Western Australia) Act
2008" and substitute:
National Gas Access (WA) Act 2009
11—Amendment of
section 27—Functions and powers of the AER
(1) Section 27(1)(a)—after “persons” insert:
(including AEMO)
(2) Section 27—after subsection (1) insert:
(1A) The AER has the following functions and powers in relation to the
Procedures:
(a) to investigate breaches or possible breaches of the Procedures
referred to the AER by AEMO; and
(b) to institute and conduct proceedings in relation to breaches of the
Procedures referred to the AER by AEMO; and
(c) to institute and conduct appeals from decisions in proceedings
referred to in paragraph (b); and
(d) to approve, in consultation with AEMO, compliance programs relating to
compliance by Registered participants with the Procedures.
12—Amendment of
section 55—Further provision about manner in which information must be
provided to AER or kept
Section 55—delete “specify the information specified in the
instrument” and substitute:
require that the information specified in the instrument
13—Amendment of
section 74—Subject matter for National Gas Rules
(1) Section 74(1)(a) and (b)—delete paragraphs (a) and (b) and
substitute:
(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 natural gas services; 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
(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
(b) any matter or thing contemplated by this Law, or necessary or
expedient for the purposes of this Law.
(2) Section 74(3)(c)(i)—delete subparagraph (i) and
substitute:
(i) the AER, the AEMC or AEMO; or
(3) Section 74(3)(d)—delete “(other than the AER or the
AEMC)” and substitute:
(other than AEMO, the AER or the AEMC)
(4) Section 74(3)(e)—delete “the AER, the AEMC or the Bulletin
Board operator” wherever occurring and substitute in each case:
the AER, the AEMC or AEMO
(5) Section 74(3)—after paragraph (f) insert:
(fa) provide for Procedures governing the operation of regulated gas
markets;
(6) Section 74(3)(h)—delete “the AER, the AEMC or the Bulletin
Board operator” and substitute:
the AER, the AEMC or AEMO
(7) Section 74(3)(l) and (m)—delete paragraphs (l) and (m) and
substitute:
(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;
(8) Section 74(3)—after paragraph (n) insert:
(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;
14—Insertion of
Chapter 2, Parts 6 and 7
Chapter 2—after Part 5 insert:
Part 6—Role of AEMO under National Gas
Law
Division 1—General
91A—AEMO's statutory functions
(1) AEMO has the following functions:
(a) to operate and administer markets for natural gas 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;
(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);
(f) for an adoptive jurisdiction—the declared system
functions;
(g) to make, amend or revoke Procedures;
(h) to operate and maintain the Natural Gas Services 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.
(2) AEMO must, in carrying out functions referred to in this section have
regard to the national gas objective.
91AB—AEMO’s power to carry out statutory
functions
AEMO has the power to do all things necessary or convenient for or in
connection with its statutory functions.
91AC—Delegation
(1) Subject to subsection (2) and the Rules, AEMO may delegate any of
its functions or powers under this Law, the Rules or the Procedures
to—
(a) a director, officer or employee of AEMO; or
(b) a member of a committee established by AEMO.
(2) However, a function or power classified by the Regulations as
non-delegable cannot be delegated.
(3) A delegate may, subject to AEMO’s directions, subdelegate a
delegated function or power to a director, officer or employee of
AEMO.
(4) A delegate (or subdelegate) must comply with any direction given by
AEMO that is relevant to the exercise of the delegated functions or
powers.
Division 2—AEMO's declared system
functions
Subdivision 1—Preliminary
91B—Application of this
Division
(1) This Division applies to, and in relation to, a participating
jurisdiction if (and only if) the application Act of that jurisdiction, or an
instrument made under that Act, declares that it does so apply.
(2) In this Division—
(a) a reference to a storage provider extends to a declared LNG storage
provider; and
(b) a reference to natural gas extends to liquefied natural gas stored by
the declared LNG storage provider.
(3) A rule or other form of subordinate legislation made for the purposes
of this Division applies to and in relation to a participating jurisdiction if
(and only if) this Division applies to and in relation to that
jurisdiction.
91BA—AEMO's declared system
functions
(1) AEMO's declared system functions are as follows:
(a) to determine security standards for the declared transmission
system;
(b) to control the operation and security of the declared transmission
system;
(c) to monitor and review the capacity of the declared transmission system
and the trends in demand for the injection of gas into, and the withdrawal of
gas from, that system;
(d) to provide information and other services to facilitate decisions for
economically efficient investment in markets for natural gas;
(e) to coordinate the interaction of producers, storage providers and
service providers for ensuring a safe, secure, reliable and efficient declared
transmission system;
(f) to operate and administer the declared wholesale gas market;
(g) to make, amend or revoke Procedures governing the operation and
administration of the declared wholesale gas market.
(2) AEMO may trade in natural gas—
(a) to the extent necessary or desirable for the safety, security or
reliability of a declared transmission system; or
(b) in an emergency.
(3) AEMO may, subject to the Rules, suspend a declared wholesale gas
market.
91BB—AEMO to account to relevant Minister for
performance of declared system functions
(1) AEMO must, at the written request of the Minister of an adoptive
jurisdiction, provide information about the performance of its declared system
functions with respect to that jurisdiction.
(2) Protected information provided in response to a request under
subsection (1) must be identified as such by AEMO at the time of providing
the information.
(3) No fee is to be charged for the provision of information under this
section.
Subdivision 2—Power of
direction
91BC—AEMO’s power of
direction
(1) AEMO may give written directions to a Registered participant (or an
exempted participant) with respect to the declared transmission system or a
declared distribution system for 1 or more of the following purposes:
(a) to maintain and improve the reliability of the supply of natural
gas;
(b) to maintain and improve the security of the declared transmission
system or a declared distribution system;
(c) in the interests of public safety.
(2) A direction under this section—
(a) may relate to—
(i) the operation or use of any equipment or installation; or
(ii) the control of the flow of natural gas; or
(iii) any other matter that may affect the safety, security or reliability
of the declared transmission system or a declared distribution system;
but
(b) must be consistent with other legislation (including subordinate
legislation) relevant to safety in the adoptive jurisdiction but may be contrary
to a provision of the Rules or the Procedures.
(3) A direction under this section may apply, adopt or incorporate (with
or without modification) a relevant code of practice or standard (made in or
outside Australia) as in force or existing when the direction is made or as in
force or existing from time to time.
(4) A prohibition imposed by a direction under this section may be either
unconditional or subject to conditions stated in the direction.
(5) A person to whom a direction under this section applies must comply
with the direction.
Maximum penalty:
(a) for a natural person—$25 000;
(b) for a body corporate—$100 000.
(6) A person who fails to comply with a direction under this section
within the period allowed in the direction commits a further offence for every
day the non-compliance continues after the end of that period and is liable to a
further penalty of $10 000 for each such offence.
91BD—Protection from liability
A person incurs no civil monetary liability for damage, loss or injury
resulting from an act or omission done or made in good faith and in compliance
or purported compliance with a direction under this Subdivision.
Subdivision 3—AEMO’s relationship with
transmission system service providers and facility owners
91BE—Service envelope agreement between AEMO and
transmission pipeline service provider
(1) The service provider for the declared transmission system must have an
agreement (a service envelope agreement) with AEMO for the
control, operation, safety, security and reliability of the declared
transmission system.
(2) Under the service envelope agreement, the service provider makes the
declared transmission system available to AEMO (and, in doing so, provides a
pipeline service).
(3) The service envelope agreement must—
(a) state the capacity of the declared transmission system to be available
to AEMO (or how that capacity is to be calculated) at points of injection or
withdrawal under the various operating conditions that are likely to prevail
from time to time; and
(b) deal with any other matters required by the Rules.
(4) The AER may, on application by AEMO or a service provider for the
declared transmission system, make a determination to resolve a dispute arising
from an attempt to negotiate a service envelope agreement or an amendment to a
service envelope agreement.
(5) The AER may only make a determination under this section
if—
(a) the AER is satisfied that the applicant has made a reasonable, but
unsuccessful, attempt to negotiate the agreement or amendment; and
(b) the AER has given AEMO and all service providers for the declared
transmission system that are to be affected by the determination an opportunity
to make representations about the terms of the proposed determination.
(6) A determination under this section may determine the terms and
conditions of the service envelope agreement or the amendment.
(7) If the AER determines the terms and conditions of a service envelope
agreement or an amendment to a service envelope agreement, a service envelope
agreement is taken to arise, or the service envelope agreement is taken to be
amended, in accordance with the AER’s determination.
(8) A determination under this section takes effect on a date specified in
the determination.
(9) A determination under this section must be published on AEMO’s
website.
91BF—Interconnection with
facilities
(1) A person must not connect a facility to the declared transmission
system unless the person—
(a) has AEMO’s permission to do so; or
(b) is authorised to do so by an access determination.
(2) A facility includes—
(a) a pipeline;
(b) a facility for storing natural gas, processable gas or LNG;
(c) a gas fired electricity generator;
(d) any other plant or equipment that could have a material impact on the
operation of the declared transmission system.
91BG—Operating agreement between AEMO and facility
owner
(1) AEMO may require, as a condition of permitting the connection of a
facility to the declared transmission system, that the facility owner enter into
an agreement (an operating agreement) with AEMO relating to the
operation of that facility.
(2) An operating agreement may deal (amongst other things) with the
following:
(a) the balancing, monitoring and regulation of gas flows between the
declared transmission system and the facility;
(b) the scheduling of gas flows;
(c) the maintenance of a balancing account;
(d) the provision of operational information;
(e) operating pressures;
(f) the safety, security and reliability of the declared transmission
system and the facility;
(g) emergency arrangements.
(3) The AER may make a determination under this section (an
operating agreement determination)—
(a) on application by AEMO or a facility owner to resolve a dispute
arising from an attempt to negotiate an operating agreement or an amendment to
an operating agreement; or
(b) in the course of proceedings to resolve an access dispute.
(4) The AER may only make an operating agreement determination on an
application under subsection (3)(a) if—
(a) the AER is satisfied that the applicant has made a reasonable, but
unsuccessful, attempt to negotiate the agreement or amendment; and
(b) the AER has given AEMO and all service providers for the declared
transmission system that are to be affected by the determination an opportunity
to make representations about the terms of the proposed determination.
(5) An operating agreement determination may determine the terms and
conditions of the operating agreement or the amendment.
(6) If the AER determines the terms and conditions of an operating
agreement or an amendment to an operating agreement, an operating agreement is
taken to arise, or the operating agreement is taken to be amended, in accordance
with the AER’s determination.
(7) An operating agreement determination takes effect on a date specified
in the determination.
(8) An operating agreement determination must be published on AEMO’s
website.
91BH—General principles governing
determinations
(1) A determination under this Division must be compatible with the proper
performance of AEMO’s declared system functions.
(2) In determining a dispute about a service envelope agreement, an
operating agreement, or an amendment to a service envelope agreement or
operating agreement, the AER must have regard to the allocation of powers and
functions between AEMO and the relevant declared transmission system operator
and to the Rules so far as they are relevant to—
(a) the allocation of risk under such an agreement; or
(b) the provision of services by means of, or in connection with, the
declared transmission system; or
(c) any other matter that has a bearing on the subject matter of the
agreement.
(3) A determination cannot alter the allocation of risk under an existing
service envelope agreement or an existing operating agreement unless AEMO
agrees.
(4) The provisions applicable to the determination of an access dispute
apply to a determination by the AER under this Division with the following
changes:
(a) section 186(1)(c), section 186(2) and sections 187 to
191 do not apply; and
(b) any further changes necessary to adapt those provisions to the
determination of a dispute under this Division.
Subdivision 4—Declared wholesale gas
market
91BI—Market participation
A person participates in a declared wholesale gas market in a registrable
capacity if the person is—
(a) a service provider for the declared transmission system or for a
declared distribution system; or
(b) a producer that injects natural gas into the declared transmission
system; or
(c) a storage provider whose storage facility is connected to the declared
transmission system; or
(d) a person who buys or sells natural gas in the declared wholesale gas
market; or
(e) a person classified by the Rules as a participant in the declared
wholesale gas market.
91BJ—Registration required for market
participation
(1) A person must not participate in a declared wholesale 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 declared wholesale 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.
91BK—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.
Subdivision 5—Wholesale Market
Procedures
91BL—Wholesale Market
Procedures
AEMO may, in accordance with the Rules, make Wholesale Market
Procedures.
91BM—Nature of Wholesale Market
Procedures
(1) Wholesale Market Procedures are a form of statutory instrument
directed at the regulation of a declared wholesale gas market.
(2) The Wholesale Market Procedures may deal with the following
matters:
(a) the matters specified by the Rules;
(b) any other matter relevant to a declared wholesale gas market on which
this Law or the Rules contemplate the making of Procedures.
(3) The Wholesale Market Procedures—
(a) may vary according to the persons, times, places or circumstances to
which they are expressed to apply; and
(b) may confer functions or powers on, or leave any matter or thing to be
decided by, AEMO; and
(c) may confer rights or impose obligations on Registered participants,
exempted participants, or other persons; and
(d) 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
(e) may confer power on AEMO to make or issue guidelines, tests, standards
and other documents of an administrative nature; and
(f) may confer power on AEMO to require a person on whom a right is
conferred, or an obligation imposed, under the Procedures—
(i) to comply with a guideline, standard or other document of an
administrative nature; or
(ii) to conduct, or submit to, a test designed by AEMO; and
(g) may exempt, or confer a power of exemption, from the application of
the Procedures or specified provisions of the Procedures; and
(h) may contain provisions of a savings or transitional nature.
(4) AEMO must not, without the consent of the MCE, make Wholesale Market
Procedures that confer a right or function, or impose an obligation, on the MCE
or a Minister of a participating jurisdiction.
(5) The Wholesale Market Procedures cannot—
(a) create an offence; or
(b) provide for a criminal or civil penalty.
91BN—Compliance with Wholesale Market
Procedures
(1) AEMO and each person to whom the Wholesale Market Procedures are
applicable must comply with those Procedures.
(2) If AEMO has reasonable grounds to suspect a breach of the Wholesale
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.
(3) If AEMO decides the breach is material, AEMO—
(a) must publish the decision and the reasons for it on its website;
and
(b) may direct the person suspected of the breach to rectify it or to take
specified measures to ensure future compliance (or both); and
(c) may refer the breach to the AER.
(4) A direction by AEMO under subsection (3)(b) must—
(a) specify the breach; and
(b) specify the date by which the direction is to be complied with;
and
(c) be addressed to, and given to, the person suspected of the
breach.
(5) A person to whom a direction is given under subsection (3)(b) must
comply with the direction.
(6) AEMO must give a copy of its decision under subsection (2), its
reasons for the decision and (if relevant) any direction under
subsection (3)(b) to the AER.
(7) If AEMO decides the breach is not material, AEMO must—
(a) publish the decision and the reasons for it on its website;
and
(b) give a copy of the decision and the reasons for it to the
AER.
Note—
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).)
Subdivision 6—Ownership of gas in declared
transmission system
91BO—Ownership of gas
(1) AEMO must establish rules (the ownership rules) for
determining the ownership of gas in the declared transmission system and for
resolving disputes about ownership.
(2) The ownership rules are to form part of the Wholesale Market
Procedures.
(3) Subject to the ownership rules, gas injected into the declared
transmission system remains the property of the person that injected it or, if
that person was acting as an agent, that person’s principal.
(4) A dispute about the ownership of gas in the declared transmission
system is to be determined in accordance with the Rules.
91BP—Title to gas
A Registered participant or an exempted participant must not inject gas
into, or tender gas for injection into, the declared transmission system
unless—
(a) the participant has title to the gas, or authority to dispose of title
to the gas; and
(b) the gas will, at the point of injection into the declared transmission
system, be free from any mortgage, charge or encumbrance.
Subdivision 7—Immunity
91BQ—Immunity
(1) A protected person incurs no civil monetary liability—
(a) for failing to accept gas for injection into, or to make gas available
for withdrawal from, the declared transmission system; or
(b) for failing to make the declared transmission system available to
accept the injection of gas into it, or the withdrawal of gas from it,
if the failure arises out of an accident or cause beyond the protected
person’s control.
(2) A protected person may, by written agreement with another person,
limit or exclude the operation of subsection (1) in relation to the parties
to the agreement.
(3) In this section—
protected person means—
(a) AEMO; or
(b) a service provider for the whole or part of the declared transmission
system.
91BR—Immunity in dealing with an
emergency
Neither AEMO nor an officer or employee of AEMO incurs any civil monetary
liability for an act or omission directed at dealing with an emergency unless
the act or omission is done or made in bad faith.
Division 3—Information etc to be provided to
Ministers
91C—Ministerial request
(1) The MCE or a Minister of a participating jurisdiction may ask AEMO for
information, a report or other services.
(2) The request may be accompanied by a written statement of the purpose
for which the information, report or other services are sought.
91CA—Compliance with request
(1) AEMO must comply with a request under this Division.
(2) However, if compliance with the request would involve disclosure of
protected information, AEMO may only provide the information if its disclosure
is authorised under this Law or the Rules.
Note—
The Minister of an adoptive jurisdiction may be entitled to certain
protected information under section 91BB.
91CB—Quarterly report
(1) AEMO must report to the MCE in each quarter on its work under this
Division for the previous quarter.
(2) The report must—
(a) summarise each request received in the relevant quarter; and
(b) state by whom each request was made.
Division 4—Gas statement of
opportunities
91D—Object and content of gas statement of
opportunities
(1) The purpose of the gas statement of opportunities is to provide
information to assist Registered participants and other persons in making
informed decisions about investment in pipeline capacity and other aspects of
the natural gas industry.
(2) The gas statement of opportunities—
(a) must contain an assessment of medium to long term demand (including
export demand) for natural gas and for pipeline services; and
(b) must contain an assessment of supply and pipeline capacity to meet
existing and foreseeable demand for natural gas and pipeline services;
and
(c) must include forecasts of the outlook for the natural gas industry
over a 20 year planning horizon; and
(d) must point out likely long term shortfalls in natural gas reserves,
and production or transmission constraints; and
(e) must contain any other information required by the Rules.
91DA—AEMO’s obligation in regard to gas
statement of opportunities
AEMO must prepare, periodically review, revise, and publish the gas
statement of opportunities in accordance with the Rules.
Division 5—Fees and charges
91E—AEMO fees and charges
(1) AEMO may—
(a) determine fees and charges for services provided by it under this Law,
the Rules or the Procedures; and
(b) charge for, and recover, the fees and charges in accordance with this
Law and the Rules.
(2) The fees and charges for a service are to be determined on a
non-profit basis that—
(a) provides for full recovery of the costs of providing the service;
and
(b) does not amount to taxation; and
(c) is consistent with the requirements of the Rules.
(3) Exact equivalence is not required between the costs of providing a
service and the revenue derived from providing the service in a particular
accounting period if there are reasonable grounds to believe that costs will
over time approximate revenue.
Note—
This section does not prevent AEMO from generating a profit from the
performance of non-statutory functions (such as the provision of consultancy
services). Any such profit would not, however, be available for distribution to
members.
(4) Despite the above provisions, a component of AEMO’s fees and
charges may, if the Rules so provide, relate to costs that are not specifically
referable to services provided under this Law, the Rules or the
Procedures.
Note—
As a general rule, AEMO’s expenditures will be allocated to services
provided to the electricity industry or the gas industry. Subsection (4)
deals with costs that cannot be wholly attributed to either industry.
(5) This section does not limit AEMO’s power to determine, charge
for and recover fees and charges for carrying out functions conferred by
jurisdictional legislation.
(6) In this section—
service includes the performance of statutory
functions.
Division 6—Information
gathering
91F—Information gathering
powers
(1) If AEMO considers it reasonably necessary to do so for the exercise of
a relevant function, it may—
(a) make a general market information order requiring information from
persons of a class specified in the order; or
(b) serve a market information notice requiring information from the
person to whom the notice is addressed.
(2) A relevant function is—
(a) the preparation, review, revision or publication of the gas statement
of opportunities; or
(b) a declared system function; or
(c) any other statutory function for which this Law authorises AEMO to
gather information by means of a market information instrument.
(3) A general market information order or a market information notice may
only be addressed to persons of a class declared by the Regulations to be a
class to which such an order or notice may be addressed.
(4) In considering whether to make a general market information order or
to issue a market information notice and, if so, the terms of the order or
notice, AEMO must have regard to the reasonable costs of efficient
compliance.
(5) A market information instrument—
(a) must specify—
(i) the information, or categories of information, that is to be provided
to AEMO; and
(ii) the time by which the information is required; and
(iii) in the case of a general market information order—the class of
persons to which the order applies; and
(iv) in the case of a market information notice—the name of the
person to whom the notice is addressed; and
(b) may specify the manner and form in which information must be
provided.
(6) Without limiting subsection (5), a market information
instrument—
(a) may require information of any of the following kinds:
(i) historic, current and forecast information;
(ii) information that may be derived from other information in the
possession or control of the person required to provide the information;
and
(b) may require the provision of information on an annual or other
periodic basis.
91FA—Making and publication of general market
information order
(1) Before making a final decision to make a general market information
order, AEMO must—
(a) invite persons of the class to which the proposed order is addressed
to make representations about the terms of the proposed order within a period
(at least 20 business days) specified in the invitation; and
(b) consider any written representations made in response to the
invitation within the specified period.
(2) As soon as practicable after a general market information order is
made—
(a) the order must be published on AEMO's website; and
(b) notice of the making of the order must be published in a newspaper
circulating generally throughout Australia.
91FB—Service of market information
notice
(1) Before serving a market information notice, AEMO must—
(a) give the person on whom AEMO intends to serve the market information
notice (the respondent) written notice of its intention to do so;
and
(b) give the respondent a draft of the market information
notice.
(2) A notice under subsection (1) must—
(a) invite the respondent to make written representations to AEMO about
whether AEMO should serve the market information notice; and
(b) specify the period (at least 20 business days) allowed for making
the representations.
(3) AEMO must consider written representations made in response to the
invitation within the specified period before making a final decision to serve
the market information notice.
91FC—Compliance with market information
instrument
(1) A market information instrument takes effect—
(a) in the case of a general market information order—on publication
on AEMO's website; or
(b) in the case of a market information notice—on service of the
notice on the person to whom it is addressed.
(2) AEMO may, by written notice, exempt a person from compliance with a
general market information order—
(a) unconditionally or on specified conditions; and
(b) wholly or to a specified extent.
(3) Subject to any exemption, a person who is a member of a class to which
a general market information order applies must comply with the order.
(4) A person on whom a market information notice is served must comply
with the notice.
(5) The duty to comply with a market information instrument prevails over
a duty of confidence.
(6) However—
(a) a person cannot be required by a market information instrument to
disclose information that is the subject of legal professional privilege;
and
(b) a natural person cannot be required by a market information instrument
to disclose information that would incriminate the person or make the person
liable to a criminal penalty under the law of an Australian jurisdiction
(whether or not the jurisdiction is a participating jurisdiction).
(7) A person incurs no liability, by complying with a market information
instrument, for breach of contract, breach of confidence or any other civil
wrong.
91FD—Use of information
Subject to this Law, the Rules, the Regulations and the Procedures, AEMO
may use information obtained by market information instrument or in any other
way for any purpose connected with the exercise of any of its statutory
functions.
91FE—Providing false or misleading
information
A person must not, in purported compliance with a market information
instrument, provide information to AEMO that the person knows is false or
misleading in a material particular.
Maximum penalty:
(a) in the case of a natural person—$2 000;
(b) in the case of a body corporate—$10 000.
Division 7—Protected
information
Subdivision 1—AEMO's obligation to protect
information
91G—Protected information
(1) AEMO must take all reasonable measures to protect from unauthorised
use or disclosure information (protected
information)—
(a) given to it in confidence; or
(b) given to it in connection with the performance of its statutory
functions and classified under the Rules, the Procedures or the Regulations as
confidential information.
(2) AEMO makes unauthorised use of protected information if (and only if)
it uses the information contrary to this Law, the Rules, the Procedures or the
Regulations.
Note—
Section 91FD authorises AEMO (subject to the Law, the Rules, the
Procedures and the Regulations) to use information (whether obtained by market
information instrument or in any other way) for any purpose connected with the
exercise of any of its statutory functions.
(3) AEMO makes an unauthorised disclosure of protected information if the
disclosure is not authorised under this Law, the Rules, the Procedures or the
Regulations.
Subdivision 2—Disclosure of protected information
held by AEMO
91GA—Authorised disclosure of protected
information
(1) AEMO is authorised to disclose protected information in accordance
with this Subdivision.
(2) AEMO may also be authorised to disclose protected information by the
Rules, the Procedures or the Regulations.
91GB—Disclosure with prior written
consent
AEMO is authorised to disclose protected information if it has the written
consent of the person from whom the information was obtained.
91GC—Disclosure required or permitted by law
etc
(1) The disclosure of protected information as required or permitted by a
law of the Commonwealth, a State or Territory is authorised.
(2) The disclosure of protected information to any of the following is
authorised:
(a) the Australian Competition and Consumer Commission;
(b) the Australian Energy Regulator;
(c) the Australian Energy Market Commission;
(d) the Economic Regulation Authority of Western Australia;
(e) a jurisdictional regulator;
(f) the National Competition Council;
(g) if the information is reasonably required by a recognised energy
industry ombudsman to resolve a dispute between a Registered participant and a
customer under an industry dispute resolution scheme but the information is not
end-use consumer information—the recognised energy industry
ombudsman;
(h) a prescribed body;
(i) any staff or consultant assisting a body mentioned above in performing
its functions or exercising its powers.
(3) A person or body to whom protected information is disclosed under
subsection (2) may use the information for any purpose connected with the
performance of the functions, or the exercise of the powers, of the person or
body.
(4) AEMO may impose conditions to be complied with in relation to
protected information disclosed under subsection (2).
(5) The disclosure of protected information by a person in the ordinary
course of carrying out functions as an officer or employee of, or consultant to,
AEMO or a body mentioned in subsection (2) is authorised.
91GD—Disclosure for purposes of court and tribunal
proceedings
AEMO is authorised to disclose protected information for the purposes
of—
(a) civil or criminal proceedings; or
(b) a proceeding before the Tribunal or a tribunal established by or under
a law of this jurisdiction or another participating jurisdiction.
91GE—Disclosure of document with omission of
protected information
(1) If a document contains both protected information and other
information, AEMO may disclose the document with the omission of the protected
information.
(2) AEMO must include a note at the place in the document from which the
protected information is omitted to the effect that protected information has
been omitted from the document.
91GF—Disclosure of non-identifying
information
AEMO is authorised to disclose protected information if—
(a) it does not disclose any elements of the information that could lead
to the identification of the person to whom the information relates;
or
(b) the manner in which it discloses the information does not identify the
person to whom that information relates.
Example—
Protected information may be combined or arranged with other information to
prevent the identification of the person to whom the protected information
relates.
91GG—Disclosure of protected information for
safety, proper operation of the market etc
(1) AEMO is authorised to disclose protected information
if—
(a) the disclosure is necessary for—
(i) the safety, reliability or security of the supply of natural gas;
or
(ii) the safety, reliability or security of a pipeline; or
(b) the disclosure is necessary for the proper operation of a regulated
gas market; or
(c) the information is in the public domain.
(2) AEMO may impose conditions to be complied with in relation to
information disclosed under subsection (1)(a) or (b).
91GH—Disclosure of protected information authorised
if detriment does not outweigh public benefit
(1) Subject to this section, AEMO is authorised to disclose protected
information after the restricted period if AEMO is of the
opinion—
(a) that the disclosure of the information would not cause detriment to
the person who has given it or to a person from whom that person received it;
or
(b) that, although the disclosure of the information would cause detriment
to such a person, the public benefit in disclosing it outweighs that
detriment.
(2) Before disclosing the protected information, AEMO must give the person
who gave the protected information—
(a) a written notice (an initial disclosure notice)
stating—
(i) that AEMO wishes to disclose the information, specifying the nature of
the intended disclosure; and
(ii) that AEMO is of the opinion required by subsection (1);
and
(iii) that the person, within the period specified in the notice, may make
representations to AEMO against disclosure of the information; and
(b) AEMO's decision, in writing, setting out the reasons why
AEMO—
(i) wishes to make the disclosure; and
(ii) is of the opinion required by subsection (1).
(3) If AEMO is aware that the person who gave the protected information in
turn received the information from another person and is aware of the other
person's identity and address, AEMO must, before disclosing the information give
the other person—
(a) a written notice (an initial disclosure notice)
stating—
(i) that AEMO wishes to disclose the information, specifying the nature of
the intended disclosure; and
(ii) that AEMO is of the opinion required by subsection (1);
and
(iii) that the person, within the period specified in the notice, may make
representations to AEMO against disclosure of the information; and
(b) AEMO's decision, in writing, setting out the reasons why
AEMO—
(i) wishes to make the disclosure; and
(ii) is of the opinion required by subsection (1).
(4) AEMO must consider every representation made to it by a person given
an initial disclosure notice within the time specified in the notice.
(5) The period specified in an initial disclosure notice must not be less
than 5 business days after the date the initial disclosure notice is given
to the person.
(6) If, after considering the representations, AEMO wishes to disclose the
protected information, AEMO must give the person given the initial disclosure
notice—
(a) a written notice (a further disclosure notice)
stating—
(i) that AEMO intends to disclose the information, specifying the nature
of the intended disclosure; and
(ii) that AEMO is of the opinion required by subsection (1);
and
(b) AEMO's decision, in writing, setting out the reasons why
AEMO—
(i) intends to make the disclosure; and
(ii) is of the opinion required by subsection (1).
(7) For the purposes of this section, the disclosure of anything that is
already in the public domain at the time AEMO wishes to disclose it cannot cause
detriment to any person referred to in subsection (2) or (3).
(8) In this section—
restricted period means a period of 5 business days
after—
(a) an initial disclosure notice has been given under this section;
or
(b) a further disclosure notice has been given under this
section,
whichever is the later.
Division 8—Obligation to make
payments
91H—Obligations under Rules or Procedures to make
payments
(1) If, under the Rules or Procedures—
(a) a Registered participant is required to pay an amount to AEMO or
another Registered participant; or
(b) AEMO is required to pay an amount to a Registered
participant,
and that amount is not paid within 28 days after it is due in
accordance with the Rules or Procedures, the Registered participant to whom the
amount is due or AEMO (as the case requires) may recover that amount in a court
of competent jurisdiction as a civil debt.
(2) If, under the Rules or Procedures, a Registered participant is
required to pay an amount to AEMO or another Registered participant, or AEMO is
required to pay an amount to a Registered participant, and the Rules or
Procedures do not specify a date for payment of that amount—
(a) that amount must be paid within the period of time specified in a
notice to pay issued by the Registered participant or AEMO (as the case
requires) that specifies that amount; and
(b) the Registered participant that issued the notice to pay, or AEMO (as
the case requires), may, if that amount is not paid within 28 days after it
is due in accordance with that notice, recover that amount in a relevant court
of competent jurisdiction as a civil debt.
(3) Subsection (1) and (2) apply despite a Registered participant or
AEMO disputing, in accordance with the Rules, an amount to be paid under the
Rules or Procedures, or specified in a notice to pay, unless—
(a) the Rules or Procedures otherwise provide; or
(b) the parties to the dispute agree otherwise; or
(c) a Dispute resolution panel, in a rule dispute in respect of the
payment of an amount referred to in subsection (1) or (2), determines that
the relevant subsection does not apply; or
(d) a court of competent jurisdiction determines that subsection (1)
or (2) does not apply.
(4) In this section—
notice to pay includes a statement of payment, settlement
statement, bill or invoice;
Registered participant includes an exempted
participant.
Division 9—AEMO's statutory
funds
91J—Definitions
In this Division—
Rule fund means—
(a) a fund—
(i) established under legislation of a participating jurisdiction (whether
primary or subordinate); and
(ii) administered by a former gas market operator immediately before the
relevant changeover date; and
(iii) transferred to AEMO’s administration on or after that date;
or
(b) a fund established as a Rule fund under this Division.
91JA—AEMO's Rule funds
(1) Subject to the Rules—
(a) the Rule funds in existence on the relevant changeover date vest in
AEMO; and
(b) AEMO then becomes (and will continue to be) responsible for the
administration of the Rule funds then in existence; and
(c) AEMO will be responsible for the administration of a Rule fund
established after the relevant changeover date as from the establishment of the
fund.
(2) AEMO must, if required to do so by the Rules or the Procedures,
establish and maintain a new Rule fund in accordance with the Rules or the
Procedures.
(3) Nothing in this Law, the Rules or the Procedures constitutes AEMO, or
a director of AEMO, as a trustee of a Rule fund.
91JB—Payments into and out of Rule
funds
(1) AEMO must ensure that there is paid into each Rule
fund—
(a) all amounts received by AEMO that, under the Rules or the Procedures,
are required to be paid into the fund; and
(b) income from investment of money in the fund.
(2) Money held in a Rule fund may be applied only in payment
of—
(a) amounts that, under the Rules or the Procedures, are required or
permitted to be paid from the fund; or
(b) liabilities or expenses of the fund.
91JC—Investment
(1) AEMO may invest money standing to the credit of a Rule fund.
(2) AEMO must, in exercising the power of investment, exercise the care,
diligence and skill that a prudent person would exercise in managing the affairs
of others.
Division 10—Immunity
91K—Immunity from liability
(1) Neither AEMO nor an officer or employee of AEMO incurs any civil
monetary liability for an act or omission in the performance or exercise, or
purported performance or exercise, of a function or power under this Law, the
Rules or the Procedures unless the act or omission is done or made in bad faith
or through negligence.
(2) The civil monetary liability for an act or omission of a kind referred
to in subsection (1) done or made through negligence may not exceed the maximum
amount prescribed by the Regulations.
(3) The Regulations prescribing a limitation of civil monetary liability
for the purposes of subsection (2)—
(a) may limit its application, or vary the maximum amount, according
to—
(i) the nature of the functions or powers out of which the liability
arises; or
(ii) the market to which the liability relates; or
(iii) the nature of the events or circumstances out of which the liability
arises; or
(iv) the nature of the damage or loss; or
(v) the person or persons suffering damage or loss; or
(vi) the season or period in which the liability is incurred; or
(vii) any combination of the above; and
(b) may prescribe the manner in which a maximum amount is to be divided
among claimants.
(4) AEMO may enter into an agreement with a person varying or excluding
the operation of a provision of this section and this section will then apply to
that person subject to that agreement.
(5) This section does not apply to any liability of an officer or employee
of a body corporate to the body corporate.
91KA—Supply interruption or disconnection in
compliance with AEMO’s direction
(1) A distributor incurs no civil monetary liability for interrupting or
disconnecting the supply of natural gas to an end user in compliance or
purported compliance with a direction given by AEMO under Rules related to user
exit from a regulated retail gas market.
(2) The immunity does not extend to an act or omission done or made in bad
faith or through negligence.
(3) The civil monetary liability for an act or omission of a kind referred
to in subsection (1) done or made through negligence may not exceed the
maximum amount prescribed by the Regulations.
(4) The Regulations may, for the purposes of
subsection (3)—
(a) prescribe a limitation of liability that is limited in its application
to persons, events, losses or periods specified in the Regulations;
(b) prescribe a limitation of liability that varies in amount according to
the persons to whom, or the events, circumstances, losses or periods to which,
it is expressed to apply;
(c) prescribe the manner in which a maximum amount is to be divided
amongst claimants.
(5) In this section—
distribution pipeline includes a pipeline that would be
likely to be classified as a distribution pipeline;
distributor means the service provider that provides pipeline
services by means of a distribution pipeline and includes an officer, employee
or agent of the service provider.
91KB—Immunity in relation to use of computer
software
(1) A protected person incurs no civil monetary liability for loss or
damage suffered by a Registered participant or other person in consequence of
the use of computer software to operate a gas market.
(2) In this section—
protected person means—
(a) AEMO; or
(b) a former gas market operator; or
(c) an officer, employee or agent of AEMO or a former gas market
operator.
91KC—Immunity from liability—dispute
resolution
(1) A protected person incurs no civil monetary liability for an act or
omission in the exercise of powers or functions related to dispute resolution
under the Rules unless the act or omission is done or made in bad
faith.
(2) In this section—
protected person means—
(a) a person appointed under the Rules to manage and facilitate dispute
resolution under or in relation to the Rules or the Procedures; or
(b) an arbitrator, mediator or other person appointed to resolve, or
assist in the resolution of, disputes under or in relation to the Rules or the
Procedures; or
(c) a person or class of persons to which the protection of this section
is extended by the Regulations.
Part 7—Regulation of retail gas
markets
Division 1—Registration
91L—Retail gas markets
(1) The retail market for natural gas 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) non-scheme pipeline users;
(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:
(a) the matters specified by the Rules;
(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—
(i) to comply with a guideline, standard or other document of an
administrative nature; or
(ii) to conduct, or submit to, a test designed by AEMO under the
Procedures; and
(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—
(a) create an offence; or
(b) provide for a criminal or civil penalty.
91MB—Compliance with Retail Market
Procedures
(1) AEMO and each person to whom the Retail Market Procedures are
applicable must comply with the Procedures.
(2) However, if there is an inconsistency between an applicable access
arrangement and the Retail Market Procedures, a person is, to the extent of the
inconsistency, not required to 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—
(a) must publish the decision and the reasons for it on its website;
and
(b) may direct the person suspected of the breach to rectify it or to take
specified measures to ensure future compliance (or both); and
(c) may refer the breach to the AER.
(5) A direction by AEMO under subsection (4)(b) must—
(a) specify the breach; and
(b) specify the date by which the direction is to be complied with;
and
(c) be addressed to, and given to, the person suspected of the
breach.
(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—
(a) publish the decision and the reasons for it on its website;
and
(b) give a copy of the decision and the reasons for it to the
AER.
Note—
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).)
15—Amendment of
section 98—Initial classification decision to be made as part of
recommendation
Section 98(3)—delete “the pipeline classification
criterion” and substitute:
the jurisdictional determination criteria
16—Substitution
of heading to Chapter 7, Part 1
Part heading immediately preceding section 217—delete “The
Bulletin Board Operator” and substitute:
AEMO to be Bulletin Board operator
17—Substitution
of sections 217 and 218
Sections 217 and 218—delete the sections and substitute:
217—AEMO to be Bulletin Board
operator
AEMO is responsible for the operation of the Natural Gas Services Bulletin
Board.
218—AEMO’s obligation to maintain Bulletin
Board
(1) AEMO must maintain the Natural Gas Services Bulletin Board.
(2) The Natural Gas Services Bulletin Board—
(a) must be maintained as a website; and
(b) must contain information of the kind specified in the Rules in
relation to natural gas services.
(3) AEMO may replace the website with another website containing
information of the kind specified in the Rules in relation to natural gas
services.
18—Amendment of
section 219—AEMO’s other functions as operator of Natural Gas
Services Bulletin Board
(1) Section 219—delete “The Bulletin Board operator also has
the following functions” and substitute:
AEMO also has, in its capacity as operator of the Natural Gas Services
Bulletin Board, the following functions
(2) Section 219(f)—delete paragraph (f) and
substitute:
(f) the other functions conferred on AEMO in its capacity as the operator
of the Natural Gas Services Bulletin Board by this Law, the Rules or any other
law prescribed by the Regulations for the purposes of this paragraph.
Section 220—delete the section
Section 221—delete the section
21—Amendment of
section 222—Fees for services provided
Section 222(1)—delete "The Bulletin Board operator” and
substitute:
AEMO
22—Amendment of
section 223—Obligation to give information to
AEMO
(1) Section 223(1)(b)—delete paragraph (b)
(2) Section 223(1) and (2)—delete “the Bulletin Board
operator” wherever occurring and substitute in each case:
AEMO
(3) Section 223—after subsection (3) insert:
(4) AEMO must make available for the operation of the Bulletin Board
information about natural gas services that it acquires in its capacity as
operator or administrator of a regulated gas market.
23—Amendment of
section 225—Giving AEMO false or misleading
information
Section 225—delete “the Bulletin Board operator” and
substitute:
AEMO
24—Amendment of
section 226—Immunity of persons giving information to
AEMO
(1) Section 226(1)—delete “the Bulletin Board operator”
and substitute:
AEMO
(2) Section 226(5)—delete subsection (5)
25—Substitution
of Chapter 7, Part 3
Chapter 7, Part 3—delete Part 3 and substitute:
Part 3—BB Procedures
227—BB Procedures
AEMO may, in accordance with the Rules, make BB Procedures.
228—Nature of BB Procedures
(1) BB Procedures are a form of statutory instrument directed at the
regulation of the Natural Gas Services Bulletin Board.
(2) The BB Procedures may deal with the following matters:
(a) the matters specified by the Rules;
(b) any other matter relevant to the Natural Gas Services Bulletin Board
on which this Law or the Rules contemplate the making of Procedures.
(3) The BB Procedures—
(a) may vary according to the persons, times, places or circumstances to
which they are expressed to apply; and
(b) may confer functions or powers on, or leave any matter or thing to be
decided by, AEMO; and
(c) may confer rights or impose obligations; and
(d) may confer power on AEMO to make or issue guidelines, tests, standards
and other documents of an administrative nature; and
(e) may confer power on AEMO to require a person on whom a right is
conferred, or an obligation imposed, under the Procedure—
(i) to comply with a guideline, standard or other document of an
administrative nature; or
(ii) to conduct, or submit to, a test designed by AEMO under the
Procedures; and
(f) may exempt, or confer a power of exemption, from the application of
the Procedures or specified provisions of the Procedures; and
(g) may contain provisions of a savings or transitional nature.
(4) AEMO must not, without the consent of the MCE, make Procedures that
confer a right or function, or impose an obligation, on the MCE or a Minister of
a participating jurisdiction.
(5) The BB Procedures cannot—
(a) create an offence; or
(b) provide for a criminal or civil penalty.
228A—Compliance with BB
Procedures
(1) AEMO and each person to whom the BB Procedures are applicable must
comply with the Procedures.
(2) However, if there is an inconsistency between an applicable access
arrangement and the BB Procedures, a person is, to the extent of the
inconsistency, not required to comply with the BB Procedures.
(3) If AEMO has reason to believe that a person is not complying with the
BB Procedures, it may, by notice in writing, direct the person to comply with
relevant provisions of the BB Procedures.
(4) A person to whom a direction is addressed under subsection (3)
must comply with the direction.
26—Amendment of
section 229—Instituting civil proceedings under this
Law
(1) Section 229(1)—delete “or Rules” and
substitute:
, Rules or Procedures
(2) Section 229(2)—after paragraph (c) insert:
or
(d) a provision of the Procedures.
27—Amendment of
section 230—Time limits within which proceedings may be
instituted
Section 230(1)—delete “or the Rules” and
substitute:
, the Rules or the Procedures
28—Amendment of
heading to Chapter 8, Part 2
Heading to Chapter 8, Part 2—delete "or the Rules" and
substitute:
, the Rules or the Procedures
29—Amendment of
section 231—AER proceedings for breaches of this Law, Regulations or the
Rules that are not offences
(1) Section 231(1)—delete “or the Rules” and
substitute:
, the Rules or the Procedures
(2) Section 231(2)—delete “or the Rules” and
substitute:
, the Rules or the Procedures
(3) Section 231(2)(d)—delete “and the Rules” and
substitute:
, the Rules and the Procedures
(4) Section 231(3)—delete “or the Rules” and
substitute:
, the Rules or the Procedures
30—Substitution
of section 243
Section 243—delete the section and substitute:
243—Applications for judicial review of
AEMO’s decisions
(1) A person aggrieved by—
(a) a decision or determination of AEMO under this Law, the Rules or the
Procedures; or
(b) a failure by AEMO to make a decision or determination under this Law,
the Rules or the Procedures; or
(c) conduct engaged in, or proposed to be engaged in, by AEMO for the
purpose of making a decision or determination under this Law, the Rules or the
Procedures,
may apply to the Court for judicial review of the decision or
determination, failure, or conduct or proposed conduct.
(2) Unless the Court otherwise orders, the making of an application to the
Court under subsection (1) does not affect the operation of a decision or
determination to which the application relates or prevent the taking of action
to implement the decision or determination.
31—Amendment of
section 244—Definitions
(1) Section 244, definition of AER information disclosure
decision—delete the definition
(2) Section 244—insert the following definition in alphabetical
order:
information disclosure decision means—
(a) a decision to disclose information made by the AER under
section 329; or
(b) a decision to disclose information made by AEMO under
section 91GH.
32—Amendment of
heading to Chapter 8, Part 5, Division 3
Heading to Chapter 8, Part 5, Division 3—delete "AER information
disclosure decisions under section 329" and substitute:
information disclosure decisions
33—Amendment of
section 263—Application for review
(1) Section 263(1)—delete "AER"
(2) Section 263(4)—delete subsection (4) and
substitute:
(4) The person must lodge the notice with the Tribunal no later than
5 business days after the date of the last notice given under
section 91GH or section 329 (as the case requires).
34—Amendment of
section 265—Determination in the review
(1) Section 265(2)—delete subsection (2) and
substitute:
(2) A determination under this section must only—
(a) affirm the information disclosure decision; or
(b) forbid disclosure by the AER or AEMO of the information or document to
which the information disclosure decision relates; or
(c) restrict, as specified in the determination, the intended disclosure
by the AER or AEMO of the information or document to which the information
disclosure decision relates.
(2) Section 265(3)—delete "the AER" and substitute:
the AER or AEMO (as the case requires)
(3) Section 265(4)—delete subsection (4) and
substitute:
(4) A determination by the Tribunal affirming the information disclosure
decision, or forbidding or restricting disclosure of information, is, for the
purposes of this Law (other than this Part), to be taken to be a decision of the
AER or AEMO (as the case requires).
35—Amendment of
section 266—Tribunal must be taken to have affirmed decision if decision
not made within time
Section 266(2)—delete "AER"
36—Substitution
of section 267
Section 267—delete the section and substitute:
267—Assistance from AER or
AEMO
The member of the Tribunal presiding in the review may require the AER or
AEMO (as the case requires) to give information, to make a report or to give
other assistance for the purposes of the review.
37—Insertion of
Chapter 8, Part 5A
After section 270 insert:
Part 5A—Dispute resolution under the
Rules
270A—Interpretation
A reference in this Part to the procedural Parts of the Commercial
Arbitration Act or the review provisions of the Commercial
Arbitration Act is to be construed as follows:
(a) if this Law is applied as a law of the State of New South Wales and a
rule dispute is heard and determined in that State—
(i) a reference to the procedural Parts of the Commercial Arbitration Act
is a reference to Parts 3, 4 and 6 of the Commercial Arbitration Act
1984 of New South Wales; and
(ii) a reference to the review provisions of the Commercial Arbitration
Act is a reference to Part 5 of that Act;
(b) if this Law is applied as a law of the State of Victoria and a rule
dispute is heard and determined in that State—
(i) a reference to the procedural Parts of the Commercial Arbitration Act
is a reference to Parts III, IV and VI of the Commercial Arbitration Act
1984 of Victoria; and
(ii) a reference to the review provisions of the Commercial Arbitration
Act is a reference to Part V of that Act;
(c) if this Law is applied as a law of the State of Queensland and a rule
dispute is heard and determined in that State—
(i) a reference to the procedural Parts of the Commercial Arbitration Act
is a reference to Parts 3, 4 and 6 of the Commercial Arbitration Act
1990 of Queensland; and
(ii) a reference to the review provisions of the Commercial Arbitration
Act is a reference to Part 5 of that Act;
(d) if this Law is applied as a law of the State of South Australia and a
rule dispute is heard and determined in that State—
(i) a reference to the procedural Parts of the Commercial Arbitration Act
is a reference to Parts 3, 4 and 6 of the Commercial Arbitration and
Industrial Referral Agreements Act 1986 of South Australia;
and
(ii) a reference to the review provisions of the Commercial Arbitration
Act is a reference to Part 5 of that Act;
(e) if this Law is applied as a law of Tasmania and a rule dispute is
heard and determined in that State—
(i) a reference to the procedural Parts of the Commercial Arbitration Act
is a reference to Parts 3, 4 and 6 of the Commercial Arbitration Act
1986 of Tasmania; and
(ii) a reference to the review provisions of the Commercial Arbitration
Act is a reference to Part 5 of that Act;
(f) if this Law is applied as a law of the Australian Capital Territory
and a rule dispute is heard and determined in that Territory—
(i) a reference to the procedural Parts of the Commercial Arbitration Act
is a reference to Parts 3, 4 and 6 of the Commercial Arbitration Act
1986 of the Australian Capital Territory; and
(ii) a reference to the review provisions of the Commercial Arbitration
Act is a reference to Part 5 of that Act;
(g) if this Law is applied as a law of another participating jurisdiction
and a rule dispute is heard and determined in that other participating
jurisdiction—
(i) a reference to the procedural Parts of the Commercial Arbitration Act
is a reference to the Parts of an Act of that jurisdiction or an Act of another
participating jurisdiction prescribed by the Regulations as corresponding to
Parts 3, 4 and 6 of the Commercial Arbitration and Industrial Referral
Agreements Act 1986 of South Australia; and
(ii) a reference to the review provisions of the Commercial Arbitration
Act is a reference to the Parts of an Act of that jurisdiction or an Act of
another participating jurisdiction prescribed by the Regulations as
corresponding to Part 5 of the Commercial Arbitration and Industrial
Referral Agreements Act 1986 of South Australia.
270B—Commercial Arbitration Acts to apply to
proceedings before Dispute resolution panels
The procedural Parts of the Commercial Arbitration Act apply to the hearing
of a rule dispute and decisions or determinations of a Dispute resolution
panel—
(a) as if—
(i) the Rules providing for a rule dispute were an arbitration agreement
within the meaning of that Act; and
(ii) the referral of the rule dispute to a Dispute resolution panel in
accordance with the Rules were a referral to arbitration in accordance with an
arbitration agreement; and
(iii) a reference in those Parts to an arbitrator or umpire were a
reference to the Dispute resolution panel; and
(iv) a reference to a party to an arbitration agreement, or in an
arbitration proceeding, in those Parts were a reference to a party to the rule
dispute; and
(v) in those Parts for “unless otherwise agreed in writing by the
parties to the arbitration agreement” there were substituted “unless
the Rules provide otherwise”; and
(vi) a reference to an award of an arbitrator or umpire in those Parts
were a reference to a decision or determination of a Dispute resolution panel;
and
(b) with any other necessary alterations and modifications.
270C—Appeals on questions of law from decisions or
determinations of Dispute resolution panels
(1) A person who is a party to a rule dispute may appeal to the Court, on
a question of law, against—
(a) a decision or determination of a Dispute resolution panel;
or
(b) a decision that is classified under the Rules as an appealable
decision.
(2) The review provisions of the Commercial Arbitration Act apply to the
decision or determination under appeal—
(a) as if—
(i) the Rules providing for the resolution of a rule dispute were an
arbitration agreement within the meaning of that Act; and
(ii) a reference to an arbitration in those provisions were a reference to
the hearing of the rule dispute; and
(iii) a reference in those provisions to an award of an arbitrator or
umpire were a reference to a decision or determination of a Dispute resolution
panel or the other decision under appeal; and
(iv) a reference to a party to an arbitration agreement, or in an
arbitration proceeding, in those provisions were a reference to a party to the
rule dispute; and
(v) sections 40 and 41 were omitted; and
(b) with any other necessary alterations and modifications.
38—Amendment of
section 290—Definitions
Section 290, definition of gas market regulatory
body—delete the definition and substitute:
gas market regulatory body means—
(a) the AER;
(b) AEMO;
(c) the ERA;
(d) REMCo;
(e) a person or body prescribed by Regulation to be a gas market
regulatory body.
After section 294 insert:
294A—South Australian Minister to make initial
Rules and Procedures related to AEMO's functions under this
Law
(1) The Minister in right of the Crown of South Australia administering
Part 2 of the National Gas (South Australia) Act 2008 of South
Australia (the South Australian Minister)—
(a) may make Rules on any 1 or more of the following subjects:
(i) AEMO’s statutory functions (including the declared system
functions);
(ii) the subject matter of a new head of power added to Schedule 1 by the
AEMO amendments;
(iii) any other subject contemplated by, or consequential on, the AEMO
amendments; and
(b) may make Wholesale Market Procedures and Retail Market
Procedures.
(2) Rules or Procedures may only be made under subsection (1) on the
recommendation of the MCE.
(3) Section 74(3) applies to Rules made under subsection (1) in the
same way as it applies to Rules made by the AEMC.
(4) Section 91BM(3) and section 91MA(3) apply respectively to
Wholesale Market Procedures and Retail Market Procedures made under
subsection (1) in the same way as they apply to Procedures made by
AEMO.
(5) As soon as practicable after making Rules or Procedures under
subsection (1), the South Australian Minister must—
(a) publish notice of the making of the Rules or Procedures in the South
Australian Government Gazette stating the date of commencement or, if they
commence at different times, the various dates of commencement; and
(b) make the Rules or Procedures publicly available.
(6) The South Australian Minister may, by a later notice published in the
South Australian Government Gazette, vary a commencement date fixed under
subsection (5)(a) or this subsection.
(7) Once the first Rules have been made under subsection (1), no
further Rules can be made under that subsection and once the first Procedures
have been made for a particular market, no further Procedures for that market
can be made under subsection (1).
(8) Rules in the nature of a derogation may be made under this section
even though no request has been made for the derogation.
40—Amendment of
section 295—Initiation of making of a Rule
Section 295—after subsection (2) insert:
(3) The following restrictions apply to requests for the making of a
Rule:
(a) a request for a Rule regulating a declared wholesale gas market may
only be made by—
(i) AEMO; or
(ii) the Minister of an adoptive jurisdiction;
(b) a request for a Rule regulating in some other way the declared system
functions may only be made by—
(i) AEMO; or
(ii) a service provider for a declared transmission system that is a party
to a service envelope agreement with AEMO; or
(iii) the Minister of an adoptive jurisdiction.
(4) The AEMC may only make a Rule that has effect with respect to an
adoptive jurisdiction if satisfied that the proposed Rule is compatible with the
proper performance of AEMO’s declared system functions.
(5) The AEMC may only make a Rule that affects the allocation of powers,
functions and duties between AEMO and a service provider for a declared
transmission system if—
(a) AEMO consents to the making of the Rule; or
(b) the Rule is requested by the Minister of the relevant adoptive
jurisdiction.
41—Amendment of
section 308—Draft Rule determination
Section 308—after subsection (4) insert:
(4A) The draft of the Rule to be made need not be the same as the draft of
the proposed Rule to which the notice under section 303 relates.
42—Amendment of
section 310—Pre-final Rule determination hearing may be
held
Section 310(1)—delete "308(2)" and substitute:
308(2)(b)
43—Substitution
of section 312
Section 312—delete the section and substitute:
312—Proposal to make more preferable
Rule
(1) If, in view of the response to a draft Rule determination, the AEMC
proposes to make a more preferable Rule, the AEMC may—
(a) make, and publish notice of, a draft Rule determination in respect of
the proposed more preferable Rule; or
(b) make, and publish notice of, a final Rule determination for the
proposed more preferable Rule.
(2) The final Rule determination, or further draft Rule determination, and
the related notice, must be published within 30 business days after the end of
the period for submissions or comments on the earlier draft Rule
determination.
After section 328 insert:
328A—Disclosure of information that has entered the
public domain
The AER is authorised to disclose information given to it in confidence, in
compliance with this Law or the Rules or voluntarily, if the information is
already in the public domain.
45—Amendment of
section 329—Disclosure of confidential information authorised if detriment
does not outweigh public benefit
Section 329—delete “Despite section 327 or 328” and
substitute:
Despite sections 327, 328 and 328A
46—Amendment of
section 332—Failure to make a decision under this Law or the Rules
within time does not invalidate the decision
Section 332(3), definition of regulatory scheme decision
maker, paragraph (f)—delete paragraph (f) and
substitute:
(f) AEMO.
47—Amendment of
Schedule 1—Subject matter for the National Gas Rules
(1) Schedule 1—after item 55 insert:
AEMO
55A A registration scheme to be administered by AEMO for
Registered participants in relation to a regulated gas market; the prudential
and other requirements to be met by a Registered participant; exemption from
registration; the suspension from registration or deregistration of a Registered
participant; the exclusion of a Registered participant from a gas market
operated or administered by AEMO.
55B The operation and administration of a regulated gas
market.
55C The declared system functions.
55D AEMO’s functions, powers and duties, and the
duties and obligations of Registered participants, exempted participants and
others, in regard to the operation of a declared transmission system or a
regulated gas market.
55E The setting of prices (including maximum and minimum
prices) for natural gas and services purchased through the declared wholesale
gas market operated and administered by AEMO.
55F The regulation of a declared LNG storage provider and
liquefied natural gas stored by the provider.
55G The metering of natural gas to record the production
or consumption of natural gas.
55H The registration of metering installations used to
meter natural gas.
55I The regulation of persons providing metering services
relating to the metering of natural gas.
55J The matters to be dealt with in the gas statement of
opportunities and the obligations of AEMO and other persons in regard to its
preparation, review, revision and publication.
55K Fees payable to AEMO for services provided, or
statutory functions performed, under this Law, the Rules or the
Procedures.
55L The payment of money (including the payment of
interest)—
(a) for the settlement of transactions for natural gas or services
purchased or supplied through a declared wholesale gas market operated and
administered by AEMO; or
(b) to or from a Rule fund; or
(c) for any service provided, or statutory function performed, for which
the Rules require payment.
(2) Schedule 1—after item 80 insert:
80A Dispute resolution, including—
(a) definition of the class of disputes subject to the dispute resolution
provisions of the Rules; and
(b) the appointment of persons to arbitrate, mediate or assist in some
other way in the resolution of such disputes; and
(c) the appointment of a person to manage and facilitate the dispute
resolution process (without however derogating from that person’s power to
act personally as an arbitrator or mediator in a particular dispute);
and
(d) the dispute resolution process; and
(e) rights of appeal on questions of law against decisions made in the
course of the dispute resolution process.
80B The Consumer Advocacy Panel (including provisions for
its funding).
(3) Schedule 1—after item 82 insert:
82A Any other matter or thing that is the subject of, or
is of a kind dealt with by, a provision of the superseded jurisdictional
rules.
(4) Schedule 1, items 57, 58, 60, 67 and 80—delete “the
Bulletin Board operator” wherever occurring and substitute in each
case:
AEMO
48—Amendment of
Schedule 2—Miscellaneous provisions relating to
interpretation
(1) Schedule 2, clause 31, definition of decision
maker—delete “the Bulletin Board operator” and
substitute:
AEMO
(2) Schedule 2—after clause 2 insert:
3—Changes of drafting practice not to affect
meaning
Differences of language between provisions of this Law or the Rules may be
explicable by reference to changes of legislative drafting practice and do not
necessarily imply a difference of meaning.
(3) Schedule 2, clause 38—delete clause 38 and
substitute:
38—Evidentiary
certificates—AEMO
(1) In any proceedings under this Law, any of the following certificates
signed or purportedly signed by an authorised officer is evidence of the matter
certified:
(a) a certificate certifying that a document identified in the certificate
is a decision (however described) or a determination (however described) made by
AEMO or a copy of such a decision or determination;
(b) a certificate certifying that a document identified in the certificate
was made, issued, developed, prepared, promulgated, served, sent, delivered, or
given under this Law or the Rules on a specified date or over a specified
period;
(c) a certificate certifying that a decision, determination or notice was
published on AEMO’s website on a specified date.
(2) For this clause, an authorised officer is AEMO’s
CEO or a person authorised by AEMO’s CEO to issue certificates under this
clause.
49—Amendment of
Schedule 3—Savings and transitionals
Schedule 3—after clause 53 insert:
Part 11—Transitional provisions related to
AEMO’s new functions and its assumption of role of former gas market
operators
Division 1—Preliminary
54—Definitions
In this Part—
AEMO T means Australian Energy Market Operator (Transitional)
Ltd (ACN 132 770 104);
asset means tangible or intangible real or personal property
of any description and includes—
(a) a present, future or contingent legal or equitable interest in real or
personal property;
(b) a chose in action;
(c) a right, power, privilege or immunity;
(d) goodwill;
(e) a security;
(f) money;
(g) documents;
(h) information (including data and records) in any form;
commencement date means the date on which this Part comes
into operation;
current rules means the provisions of this Law, the Rules and
the Procedures;
establishment expenditure means expenditure incurred by the
Commonwealth, AEMO T, AEMO and the former gas market operators in or in relation
to the establishment of AEMO or the assumption of its statutory
functions;
former gas market operator includes VENCorp but only in its
former capacity as operator of the Natural Gas Services Bulletin
Board;
GMC means Gas Market Company Limited
(ACN 095 400 258);
liability means a monetary or non-monetary obligation and
includes a future or contingent obligation;
property includes intellectual property;
relevant legislative innovations means—
(a) the AEMO amendments to this Law; and
(b) the AEMO amendments to the Rules;
rule change proposal means a proposal for making, amending or
revoking a rule.
Division 2—General provisions
55—Saving operation of superseded jurisdictional
rules
(1) Subject to this Schedule, the repeal of the superseded jurisdictional
rules does not—
(a) revive anything not in force or existing at the time the repeal takes
effect; or
(b) affect the previous operation of the superseded jurisdictional rules
or anything suffered, done or begun under or in accordance with the superseded
jurisdictional rules; or
(c) affect a right, privilege or liability acquired, accrued or incurred
under the superseded jurisdictional rules; or
(d) affect a penalty incurred for an offence arising under the superseded
jurisdictional rules; or
(e) affect an investigation, proceeding or remedy in relation to such a
right, privilege, liability or penalty.
(2) Subject to this Schedule, any such penalty may be imposed and
enforced, and any such investigation, proceeding or remedy may be begun,
continued or enforced, as if the superseded jurisdictional rules had continued
in force.
56—Transitional provisions governing accrued and
accruing rights, liabilities etc
(1) A reference in a document (including a legislative instrument) to the
superseded jurisdictional rules or a particular provision of the superseded
jurisdictional rules is (where the context permits) taken to be a reference to
the current rules or the corresponding provision of the current rules (as the
case requires).
(2) An action taken under, or for the purposes of, the superseded
jurisdictional rules is taken to be an action taken under, or for the purposes
of, the corresponding provisions of the current rules.
(3) In particular—
(a) an administrative process commenced by the jurisdictional regulator or
a former gas market operator before the relevant changeover date may be
continued and completed by AEMO or the AER (as the case requires) under the
current rules; and
(b) consultation commenced before the relevant changeover date under the
superseded jurisdictional rules may be continued and completed under the
corresponding provisions of the current rules; and
(c) a period that had, at the relevant changeover date, partially elapsed
under the superseded jurisdictional rules is, from the relevant changeover date,
taken to be part of the corresponding period (if any) under the current rules as
if the current rules had been in force when the relevant period began to
run.
(4) A right or privilege that had accrued or was accruing under the
superseded jurisdictional rules as at the relevant changeover date is taken to
be an accrued or accruing right or privilege under the corresponding provisions
of the current rules.
(5) A liability, obligation or penalty incurred under the superseded
jurisdictional rules before the relevant changeover date is, after the relevant
changeover date, taken to be a liability, obligation or penalty incurred under
the corresponding provisions of the current rules.
(6) A jurisdictional regulator must not take or continue action that can
be continued and completed by AEMO or the AER under this clause.
57—Investigations
(1) The AER may investigate a breach or possible breach of the superseded
jurisdictional rules.
(2) If an investigation of a breach or possible breach of the superseded
jurisdictional rules had commenced but had not been completed before the
relevant changeover date, the AER may continue and complete the
investigation.
(3) The AER must conduct or continue an investigation under this clause as
if it were an investigation into a breach of this Law, and for that purpose, may
exercise all the powers it has under this Law relating to investigations into
breaches or possible breaches of this Law.
58—Proceedings for breach of superseded
jurisdictional rules
(1) The AER may commence proceedings, or take any other action
contemplated by the superseded jurisdictional rules, for a breach of the
superseded jurisdictional rules occurring before the relevant changeover
date.
(2) The AER may continue and complete proceedings or other action for a
breach of the superseded jurisdictional rules that had been commenced but not
completed by the relevant changeover date.
(3) The superseded jurisdictional rules govern the commencement,
continuation, completion or determination of any such proceedings or action as
if they had continued in force (subject to necessary adaptations and
modifications) for the purposes of the proceedings or other action.
59—Dispute resolution
(1) A dispute arising from circumstances occurring before the relevant
changeover date is, subject to subclause (2), to be dealt with as a rule
dispute.
(2) If—
(a) proceedings for the resolution of a dispute had commenced under the
superseded jurisdictional rules before the relevant changeover date;
and
(b) the dispute arises from circumstances occurring in Queensland or
Victoria,
the proceedings are to be continued and completed in accordance with the
superseded jurisdictional rules (subject however to adaptations and
modifications necessary to allow for the participation in the dispute resolution
process of the dispute resolution authorities envisaged by the current
rules).
60—Registered participants
(1) A person to whom this clause applies becomes a Registered participant
on the relevant changeover date.
(2) This clause applies to—
(a) a person listed in the Regulations as a person to be automatically
registered as a Registered participant; and
(b) a person of a class specified in the Regulations as a class of persons
to be automatically registered as Registered participants.
61—Instruments made by former gas market
operators
(1) A procedure, guideline, directive, approval, determination or other
instrument of a legislative or administrative character—
(a) made by a former gas market operator under the superseded
jurisdictional rules; and
(b) in force immediately before the relevant changeover date,
continues in force, subject to amendment or revocation by AEMO, as if made
by AEMO under the current rules.
(2) However, this clause does not apply to an instrument of a kind that
could not have been made under the current rules assuming they had been in force
when the instrument was created.
62—Rule change proposals
(1) Subject to this clause, a rule change proposal under the superseded
jurisdictional rules that was current at the relevant changeover date is to be
dealt with as follows:
(a) if the proposal lies within the scope of the Rules—it is to be
dealt with as a request for the making of a Rule;
(b) if the proposal lies within the scope of the Procedures—it is to
be dealt with as a request for the making of a Procedure.
(2) The AEMC or AEMO (as the case requires) may dispense with a particular
step in the process for making a Rule or a Procedure if it is of the opinion
that the relevant step is unnecessary because no equivalent step existed under
the superseded jurisdictional rules or the same or a similar step has already
been taken under the superseded jurisdictional rules.
(3) On giving a dispensation under subclause (2), the AEMC or AEMO
(as the case requires) must publish notice of its decision to do so on its
website and in a newspaper circulating throughout Australia.
63—Incompatibility between request for the making
of Rule or Procedure and Minister-initiated Rule or
Procedure
(1) The AEMC or AEMO (as the case requires) may reject a request for
making a Rule or Procedure if the request relates to a Rule that is to be
revoked by a Minister-initiated Rule or Procedure that has been made but is yet
to come into operation.
(2) If an existing Rule is to be amended or substituted by a
Minister-initiated Rule or Procedure that has been made but is yet to come into
operation, the AEMC or AEMO (as the case requires) may treat a request for
making a Rule or Procedure relating to the relevant existing Rule as if the
request related to that Rule as amended or substituted.
(3) If the AEMC or AEMO (as the case requires) decides to act under this
clause, it must—
(a) inform the person that made the request of the decision; and
(b) give that person written reasons for the decision.
(4) In this clause—
Minister-initiated Rule or Procedure means a Rule or
Procedure made under Chapter 9, Part 2;
Rule includes (where the context admits) a superseded
jurisdictional rule.
64—Natural Gas Services Bulletin
Board
The website to be maintained by AEMO as the Natural Gas Services Bulletin
Board is to be, in the first instance, the website maintained as the Natural Gas
Services Bulletin Board immediately before the commencement date.
65—Publication of notices etc
A requirement that AEMO publish a notice or other document on its website
is, for the first 12 months after the relevant changeover date, satisfied
if the notice or other document is published on the website of a former gas
market operator before the relevant changeover date.
66—Rights under change of law provisions not to be
triggered by amendments to this Law etc
(1) An amendment to this Law, or the making of a Rule or Procedure, is not
to be regarded as a change of law under an agreement or deed in effect on the
relevant changeover date.
(2) Subclause (1) applies despite a provision in an agreement or deed
to the contrary.
Division 3—Transfer of assets and liabilities of
GMC and AEMO T
67—Transfer of assets and
liabilities
(1) The NSW Minister may, by instrument in writing (an allocation
order), transfer any of GMC’s assets and liabilities to
AEMO.
(2) An allocation order takes effect from a date (which may be earlier
than the date of the order) specified in the order.
(3) If it appears to the NSW Minister that assets or liabilities have been
transferred in error to AEMO under this clause, the Minister may, by instrument
in writing (a claw back order), re-transfer assets or liabilities
transferred under this clause from AEMO to GMC.
(4) A claw back order—
(a) must be made within 12 months after the date of the allocation
order; and
(b) takes effect from a date (which may be earlier than the date of the
order) specified in the order.
(5) The NSW Minister must, at least 20 business days before making a
claw back order, give AEMO written notice of its intention to make the
order.
(6) The NSW Minister may make an allocation order, or a claw back order,
in relation to assets or liabilities situated within any participating
jurisdiction.
(7) An allocation order or a claw back order may be made on conditions
specified in the order.
68—Transfer of AEMO T’s assets and
liabilities
(1) The South Australian Minister may, by Ministerial Gazette notice,
transfer AEMO T’s assets and liabilities to AEMO on a date fixed by the
notice.
(2) Subject to any exclusions specified in the notice, the notice will
operate to transfer AEMO T’s assets and liabilities in their
entirety.
69—Effect of relevant transfer
order
(1) On the relevant date, assets and liabilities vest in the transferee
named in a transfer order in accordance with the order.
(2) If a transfer order provides for the transfer of the
transferor’s interest in an agreement—
(a) the transferee becomes on the relevant date a party to the agreement
in place of the transferor; and
(b) on and after the relevant date, the agreement has effect as if the
transferee had always been a party to the agreement.
(3) In this clause—
relevant date means—
(a) for an allocation order—the date specified in the order for the
transfer to take effect;
(b) for a claw back order—the date specified in the order for the
re-transfer to take effect;
(c) for a Ministerial Gazette notice providing for the transfer of
AEMO T’s assets and liabilities—the date fixed by the notice
for the transfer to take effect;
transfer order means an allocation order, a claw back order,
or a Ministerial Gazette notice under clause 68;
transferor means the person from whom assets and liabilities
are transferred by a transfer order.
70—Continued effect of certain acts by GMC or AEMO
T
Anything done, or omitted to be done, by GMC or AEMO T in relation to
assets or liabilities transferred to AEMO under this Division is, if it
continues to have effect as at the date of the transfer, taken to be
AEMO’s act or omission.
71—Continuation of proceedings
Proceedings commenced before 1 July 2009 by or against GMC or
AEMO T may be continued and completed by or against AEMO.
72—Validity and effect of things done under this
Division
(1) Nothing done under this Division—
(a) constitutes a breach of contract or confidence, or other civil wrong;
or
(b) places a person in breach of, or constitutes a default
under—
(i) a statutory or non-statutory law or obligation; or
(ii) a provision in an agreement, arrangement or understanding including
(for example) a provision prohibiting, restricting or regulating the assignment,
transfer, sale or disposal of property or the disclosure of information;
or
(c) fulfils a condition that allows a person to exercise a power, right or
remedy in respect of, or to terminate, an agreement or obligation; or
(d) gives rise to a remedy for a party to a contract or instrument because
of a change in the beneficial or legal ownership of property; or
(e) avoids a contract or instrument or renders it unenforceable;
or
(f) frustrates a contract; or
(g) releases any surety or other obligor wholly or in part from any
obligation.
(2) The transfer of a liability of GMC or AEMO T under this Division
releases GMC or AEMO T from the liability.
(3) An allocation order or a claw back order has effect despite any other
law or instrument.
(4) If the books and records of GMC or AEMO T are transferred to AEMO
under this Division, AEMO must—
(a) preserve the books and records for at least 7 years; and
(b) allow GMC or AEMO T, and their directors or former directors
reasonable access to the books and records.
73—Evidence of transfer
(1) A written notice signed by the NSW Minister stating that a specified
transfer of assets or liabilities has been made from or to GMC under this
Division is conclusive evidence of the transfer.
(2) A written notice signed by the South Australian Minister stating that
a specified transfer of assets or liabilities has been made from or to AEMO T
under this Division is conclusive evidence of the transfer.
74—Obsolete references
A reference in a document to GMC or to AEMO T in connection with an asset
or liability transferred to AEMO under this Division is, from the date of
transfer, taken to be a reference to AEMO.
Division 4—Acceptance of transfer from former gas
market operators and AEMO T
75—Parties to transfer must do anything necessary
to perfect transfer
(1) AEMO must accept assets and liabilities transferred to it under this
Part or under jurisdictional legislation.
(2) The South Australian Minister may direct AEMO’s directors to
accept, on AEMO’s behalf, a transfer of assets or liabilities made under
this Part or under jurisdictional legislation.
(3) The relevant parties must take necessary action to perfect a transfer
of assets or liabilities under this Part or under jurisdictional
legislation.
(4) The South Australian Minister may direct the directors of a relevant
party to ensure that the relevant party complies with an obligation imposed
under subclause (3).
(5) In this clause—
relevant party means—
(a) AEMO; or
(b) AEMO T; or
(c) GMC.
76—Corporations Act
displacement
To the extent that any provision of this Part is incapable of concurrent
operation with a provision of the Corporations Act 2001 of the
Commonwealth (a designated Commonwealth provision), the provision
of this Part is declared to be Corporations legislation displacement provision
for the purposes of section 5G of that Act in relation to the designated
Commonwealth provision.
Note—
Section 5G of the Corporations Act provides that if a State law declares a
provision of a State law to be a Corporations legislation displacement
provision, any provision of the Corporations legislation with which the State
provision would otherwise be inconsistent does not apply to the extent necessary
to avoid the inconsistency.
Division 5—Fees and charges
77—AEMO's fees and charges
(1) Despite Chapter 2, Part 6, Division 5—
(a) for the first 2 years of the prescribed period, fees and charges must
be determined and recovered on the same basis as they were determined and
recovered by the former gas market operators whose functions AEMO has assumed;
and
(b) for the final year of the prescribed period, fees and charges may be
determined and recovered on the same basis as they were determined and recovered
by the former gas market operators whose functions AEMO has assumed;
but
(c) AEMO must carry out a review of its fees and charges before the end of
the prescribed period and ensure that, as from the end of the prescribed period,
the determination and recovery of its fees and charges conform with
Chapter 2, Part 6, Division 5 and the Rules.
(2) In this section—
prescribed period means the period of 3 years commencing
on the commencement of this section or some other date fixed by Ministerial
Gazette notice.
78—Establishment expenditure
(1) AEMO may recover establishment expenditure as a component of the
participant fees payable by users and non-scheme pipeline users.
(2) The establishment expenditure is to be recovered—
(a) over a period of 4 financial years from the relevant changeover
date; and
(b) in accordance with a schedule prepared by AEMO and published on its
website.
(3) AEMO is not required to consult on the schedule.
79—Expenditure on gas statement of
opportunities
(1) Expenditure related to the gas statement of opportunities made before,
or within 3 years after, the commencement date is to be regarded as
expenditures on a major gas project.
(2) AEMO may recover that expenditure as a component of the participant
fees payable by users and non-scheme pipeline users.
(3) The expenditure is to be recovered—
(a) over a period of 4 financial years from the relevant changeover
date; and
(b) in accordance with a schedule prepared by AEMO and published on its
website.
(4) AEMO is not required to consult on the schedule.
Division 6—Information
80—Transferred information
(1) AEMO stands in the same position as GMC or AEMO T in relation to
information transferred under this Part from GMC or AEMO T to
AEMO.
(2) It follows that:
(a) if the information was confidential in the hands of GMC or AEMO T
before the transfer, it remains confidential in AEMO’s hands after the
transfer; and
(b) AEMO must deal with the information in the same way as if it had been
acquired or produced by AEMO rather than GMC or AEMO T.
(3) AEMO must allow GMC or AEMO T or their representatives such
access to the transferred information as may be reasonable in the
circumstances.
81—Calculations
A calculation made by a former gas market operator before the relevant
changeover date is, to the extent it has continuing relevance after the relevant
changeover date, taken to have been made by AEMO.
Division 7—Deferral of relevant legislative
innovations in Queensland
82—Queensland Minister’s power to defer
commencement of relevant legislative innovations
(1) The Queensland Minister may, by notice published in the Queensland
Government Gazette, defer the commencement in Queensland of specified parts or
provisions of the relevant legislative innovations.
(2) The Queensland Minister may, by subsequent notice published in the
Queensland Government Gazette, vary or revoke a notice under
subclause (1).
Division 8—Special transitional provisions for
South Australia
83—Definitions
In this Division—
relevant contractual provisions for dispute resolution means
the provisions for dispute resolution contained in transitional
contracts;
Retail Market Procedures means Procedures governing the
operation of the regulated retail gas market in South Australia;
Retail Market Rules means the rules published by REMCo as the
REMCo Retail Market Rules insofar as those rules apply in relation to South
Australia;
transitional contract means a contract, or presumptive
contract, that continues in force under clause 84;
transitional period means the period for which transitional
contracts remain in force after the relevant changeover date.
84—Transitional contracts
(1) A contract, or presumptive contract, in the form, or substantially in
the form, prescribed in the appendices to the Retail Market Rules that was in
force immediately before the relevant changeover date continues in force after
the relevant changeover date for the purposes of, and subject to and in
accordance with, the corresponding provisions of the Retail Market
Procedures.
(2) Any such contract or presumptive contract is to be read and
construed—
(a) as if—
(i) a reference to REMCo were a reference to AEMO; and
(ii) a reference to the Retail Market Rules, or a provision of the Retail
Market Rules were a reference to the Retail Market Procedures or the
corresponding provision of the Retail Market Procedures; and
(iii) the contract were amended to reflect the most recent version of the
relevant pro-forma contract set out in the appendices to the Retail Market
Procedures; and
(b) subject to any other necessary adaptations and
modifications.
85—Contractual provisions for dispute
resolution
(1) The relevant contractual provisions for dispute resolution apply, to
the exclusion of provisions of this Law or the Rules for dispute resolution, in
relation to any dispute to which the relevant contractual provisions are
applicable.
(2) The relevant contractual provisions for dispute resolution continue to
operate for as long as the transitional contracts in which they are contained
continue in force.
86—Risk allocation
(1) To the extent of any inconsistency, Part 8.5 of the Retail Market
Procedures applies, during the transitional period, to the exclusion of
Chapter 2, Part 6, Division 10 of this Law.
(2) To the extent of any inconsistency, clause 366 of the Retail
Market Procedures applies, during the transitional period, to the exclusion of
Rule 138A(8) of the National Gas Rules.
(3) In this clause, a reference to the Retail Market
Procedures is (if the Retail Market Rules have not yet been superseded
by the Retail Market Procedures) to be read as a reference to the Retail Market
Rules.