QueenslandGasPipelinesAccess(Queensland)Act1998Reprinted as in force on 31 December
2004(The attachment in this reprint contains the
Gas PipelinesAccess (South Australia) Act 1997 as at 14
September 2006; seeendnote 4.)Reprint No.
2This reprint is prepared bythe
Office of the Queensland Parliamentary CounselWarning—This
reprint is not an authorised copyNOT FURTHER
AMENDEDLAST REPRINT BEFORE REPEALSee
2008 Act No. 27 s 17
Information about this reprintThis
Act is reprinted as at 31 December 2004. The reprint shows the law
as amended by allamendments that commenced on or before that
day (Reprints Act 1992 s 5(c)).The reprint
includes a reference to the law by which each amendment was
made—see listof legislation and list of annotations in
endnotes. Also see list of legislation for anyuncommenced
amendments.Minor editorial changes allowed under the
provisions of the Reprints Act 1992 have alsobeen made to use
aspects of format and printing style consistent with current
draftingpractice (s 35).This page is
specific to this reprint. See previous reprints for information
about earlierchanges made under the Reprints Act 1992. A
table of reprints is included in the endnotes.Also see endnotes
for information about—•when provisions
commenced•editorial changes made in earlier
reprints.Dates shown on reprintsReprints dated at
last amendmentAll reprints produced on or after 1 July
2002, hardcopy and electronic, are dated as at the last
date of amendment. Previously reprints weredated as at the
date of publication. If a hard copy reprint is dated earlier than
an electronicversion published before 1 July 2002, it
means the legislation was not further amendedand the reprint
date is the commencement of the last amendment.If the date of a
hard copy reprint is the same as the date shown for an electronic
versionpreviously published, it merely means that
the electronic version was published before thehard copy version.
Also, any revised edition of the previously published electronic
versionwill have the same date as that
version.Replacement reprint dateIf the date of a
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other.
5Gas Pipelines Access (Queensland) Act
1998Gas Pipelines Access (Queensland) Act
1998[as amended by all amendments that commenced
on or before 31 December2004]AnActaboutthirdpartyaccesstonaturalgaspipelinesystems, and for
related purposesPreamble—1The
Council of Australian Governments agreed, in February1994,togeneralprinciplesofcompetitionpolicyreformtoenable third parties, in particular
circumstances, to gain accessto essential
facilities.2TheCouncilofAustralianGovernments,aspartofthatcommitment to reform, agreed to more
specific proposals forthe development of free and fair trade
in natural gas.3TheCommonwealth,theStatesofNewSouthWales,Victoria, Queensland, South Australia,
Western Australia andTasmania, the Northern Territory and
the Australian CapitalTerritoryagreedinNovember1997totheenactmentoflegislationintheCommonwealthandthoseStatesandTerritories so that a uniform national
framework applies forthird party access to all gas
pipelines that—(a)facilitates the development and
operation of a nationalmarket for natural gas; and(b)prevents abuse of monopoly power;
and(c)promotes a competitive market for
natural gas in whichcustomersmaychoosesuppliers,includingproducers,retailers and traders; and(d)providesrightsofaccesstonaturalgaspipelinesonconditionsthatarefairandreasonablefortheownersandoperatorsofgastransmissionanddistribution
s16s3Gas
Pipelines Access (Queensland) Act 1998pipelinesandpersonswishingtousetheservicesofthose
pipelines; and(e)provides for resolution of
disputes.Part 1Preliminary1Short
titleThisActmaybecitedastheGasPipelinesAccess(Queensland) Act
1998.2CommencementThis Act
commences on a day to be fixed by proclamation.3DefinitionsIn this
Act—attendance noticesee section
38.1convictionincludes a plea
of guilty or a finding of guilt by acourt even though
a conviction is not recorded.Gas Pipelines
Access Lawmeans—(a)schedule 1 to the South Australian
Act—(i)as enacted; or(ii)if
amended, as amended and in force for the timebeing; and(b)the National Third Party Access Code
for Natural GasPipelineSystems(acopyofwhich,asagreedbytheCouncilofAustralianGovernmentson7November1997,issetoutinschedule 2totheSouthAustralianAct)or,ifthatcodeisamendedinaccordancewith1Section 38 (Procedural powers of
tribunal)
s47s6Gas
Pipelines Access (Queensland) Act 1998schedule 1 to
that Act, that code as so amended and inforce for the
time being.GasPipelinesAccess(Queensland)Lawmeanstheprovisions applying because of section
8.Gas Pipelines Access (Queensland)
Regulationsmeans theprovisions
applying because of section 9.South Australian
Actmeans theGas Pipelines
Access (SouthAustralia) Act 1997(SA).tribunalmeans the
Queensland Gas Appeals Tribunal.4Words
and expressions used in Gas Pipelines AccessLaw(1)Words and expressions used in the Gas
Pipelines Access Law,asapplyingbecauseofsection8,andinthisActhavethesame
respective meanings in this Act as they have in that lawas so
applying.(2)Subsection (1) does not apply to the
extent that the context orsubject matter otherwise indicates or
requires.5Crown to be boundThis Act, the Gas
Pipelines Access (Queensland) Law and theGasPipelinesAccess(Queensland)RegulationsbindtheCrown, not only in right of Queensland
but also, so far as thelegislative power of the Parliament
permits, the Crown in allits other capacities.6Application to coastal waters(1)This Act, the Gas Pipelines Access
(Queensland) Law and theGas Pipelines Access (Queensland)
Regulations apply in thecoastal waters of this State.(2)In this section—coastalwaters,ofthisState,meansanyseathatisonthelandward side of
the adjacent area in respect of the State but isnot
within the limits of the State.
s78s9Gas
Pipelines Access (Queensland) Act 19987Extra-territorial operation(1)It is the intention of the Parliament
that the operation of thisAct, the Gas Pipelines Access
(Queensland) Law and the GasPipelines Access
(Queensland) Regulations should, as far aspossible, include
operation in relation to the following—(a)things situated in or outside this
State;(b)acts,transactionsandmattersdone,enteredintooroccurring in or outside this
State;(c)things, acts, transactions and matters
(wherever situated,done, entered into or occurring) that would,
apart fromthis Act, be governed or otherwise affected
by the law ofanotherState,aTerritory,theCommonwealthoraforeign country.(2)Nothing in subsection (1) has effect in
relation to a pipeline totheextentthatthepipelineissituated,orpartlysituated,beyond the jurisdictional areas of all the
scheme participants.Part 2Gas Pipelines
Access(Queensland) Law and GasPipelines Access
(Queensland)Regulations8Application in Queensland of Gas Pipelines
Access LawThe Gas Pipelines Access Law—(a)applies as a law of Queensland;
and(b)as so applying, may be referred to as
the Gas PipelinesAccess (Queensland) Law.9Application in Queensland of regulations
under GasPipelines Access LawThe regulations
in force for the time being under part 3 of theSouth Australian
Act—
s
109s 10Gas Pipelines
Access (Queensland) Act 1998(a)applyasregulationsinforcefortheGasPipelinesAccess (Queensland) Law; and(b)as so applying, may be referred to as
the Gas PipelinesAccess (Queensland) Regulations.10Attachment(1)Attached to this Act is a copy of the South
Australian Act.(2)The attachment is not part of this
Act.(3)The attachment must be revised so that
it is an accurate copyoftheSouthAustralianAct,andtheNationalThirdPartyAccess Code for
Natural Gas Pipeline Systems, as amendedfrom time to
time.2(4)Therevisionundersubsection(3)musthappeninthefirstreprint of this
Act after an amendment of the South AustralianAct or the
code.(5)A copy of an Act passed by the
Parliament of South Australiathat amends the
South Australian Act must be tabled in theLegislative
Assembly by the Minister within 14 sitting daysafter it receives
the Royal Assent.(6)Acopyofaregulationmadeunderpart3oftheSouthAustralian Act
must be tabled in the Legislative Assembly bythe Minister
within 14 sitting days after it is made.(7)A
copy of an agreement for an amendment of the code, mustbe
tabled in the Legislative Assembly by the Minister within14
sitting days after it comes into force.(8)This
section does not affect the operation of sections 8 and 9.2The code (a copy of which, as agreed
by the Council of Australian Governments on7 November 1997,
is set out in schedule 2 to the South Australian Act) may beamended by agreement of relevant Ministers
in accordance with schedule 1 to thatAct.
s
1110s 11Gas Pipelines
Access (Queensland) Act 199811Interpretation of some expressions in the
Gas PipelinesAccess (Queensland) Law and the Gas
Pipelines Access(Queensland) Regulations(1)In
the Gas Pipelines Access (Queensland) Law and the GasPipelines Access (Queensland)
Regulations—codemeans the National Third Party Access
Code for NaturalGasPipelineSystems(acopyofwhich,asagreedbytheCouncil of Australian Governments on 7
November 1997, isset out in schedule 2 to the South
Australian Act) or, if thatcode is amended in accordance with
schedule 1 to that Act,that code as so amended and in force
for the time being, as itappliesbecauseofsection8ofthisActasalawofQueensland.courtmeans
the Supreme Court.designatedappealsbodymeanstheAustralianCompetitionTribunal.designated Ministermeans the
Commonwealth Minister.GasPipelinesAccessLaworthislawmeanstheGasPipelines Access (Queensland)
Law.Legislaturemeans the
Parliament of Queensland.localappealsbodymeanstheQueenslandGasAppealsTribunal.localMinistermeanstheMinisteradministeringtheGasSupply Act 2003.localregulatormeanstheQueenslandCompetitionAuthority.Supreme Courtmeans the Supreme
Court of Queensland.this scheme participantmeans
the State of Queensland.(2)TheActsInterpretationAct1915,andotherActs,ofSouthAustralia do not
apply to—(a)the Gas Pipelines Access Law set out
in schedule 1 tothe South Australian Act in its application
as a law ofQueensland; or
s
1211s 13Gas Pipelines
Access (Queensland) Act 1998(b)the
regulations in force for the time being under part 3 oftheSouthAustralianActintheirapplicationasregulations in force for the Gas Pipelines
Access Law.Part 3National
administration andenforcement12Conferral of functions and powers on
CommonwealthMinister and Commonwealth bodies(1)The Commonwealth Minister, the ACCC,
the NCC and theAustralianCompetitionTribunalhavethefunctionsandpowersconferredorexpressedtobeconferredonthemrespectivelyundertheGasPipelinesAccess(Queensland)Law.3(2)Inadditiontothepowersmentionedinsubsection(1),theCommonwealthMinisterandthebodiesreferredtointhatsubsectionhavepowertodoallthingsnecessaryorconvenient to be done in connection with the
performance orexerciseofthefunctionsandpowersreferredtointhatsubsection.13Conferral of power on Commonwealth Minister
andCommonwealth bodies to do acts in this
StateTheCommonwealthMinister,theACCC,theNCCandtheAustralian Competition Tribunal have power
to do acts in orinrelationtothisStateintheperformanceorexerciseofafunctionorpowerexpressedtobeconferredonthem3TheentitiesACCCandNCCarerespectivelytheAustralianCompetitionandConsumer Commission and the National
Competition Council—see the definitionsfor the terms in
schedule 1 to the South Australian Act.
s
1412s 15Gas Pipelines
Access (Queensland) Act 1998respectively by
the gas pipelines access legislation of anotherscheme
participant.414Conferral of
power on Ministers, regulators and appealsbodies of other
scheme participantsThe local Minister, the local regulator and
the local appealsbodyunderthegaspipelinesaccesslegislationofanotherscheme
participant have power to do acts in or in relation tothisStateintheperformanceorexerciseofafunctionorpower
expressed to be conferred on them respectively by thegaspipelinesaccesslegislationofthatotherschemeparticipant.15Conferral of functions on, and delegation of
powers by,code registrar(1)The
code registrar has—(a)the functions and powers conferred or
expressed to beconferred on the code registrar under the
Gas PipelinesAccess(Queensland)LaworundertheNationalGasAgreement;5and(b)any other
functions and powers conferred on the coderegistrarbyunanimousresolutionoftherelevantMinisters of the scheme participants.(2)Inadditiontothepowersmentionedinsubsection(1),thecoderegistrarhaspowertodoallthingsnecessaryorconvenient to be done in connection with the
performance orexerciseofthefunctionsandpowersreferredtointhatsubsection.4Schedule 1 to the South Australian Act
defines thegas pipelines access legislationfor
each scheme participant. Under the schedule, the scheme
participants are theCommonwealth,thestatesofNewSouthWales,Victoria,Queensland,SouthAustralia, Western Australia and Tasmania,
the Australian Capital Territory and theNorthern
Territory.5The agreement is the National Gas
Pipelines Access Agreement entered into by thescheme
participants on 7 November 1997.
s
1613s 17Gas Pipelines
Access (Queensland) Act 1998(3)The
code registrar may delegate the code registrar’s powersunder
this section to an appropriately qualified person.6(4)In this
section—appropriately qualified, for a person to
whom a power maybe delegated, includes having the
qualifications, experience orstanding to
exercise the power.16Functions and powers conferred on
Queensland Minister,regulator and appeals bodyIfthegaspipelinesaccesslegislationofanotherschemeparticipant confers a function or power on
the local Minister,local regulator or local appeals body, the
Minister, regulator orbody—(a)may
perform that function or exercise that power; and(b)may do all things necessary or
convenient to be done inconnectionwiththeperformanceorexerciseofthatfunction or power.17Functions of QCA as local regulatorThe
Queensland Competition Authority in its capacity as thelocal
regulator under the Gas Pipelines Access (Queensland)Law—(a)mayonlyperformthefunctionsandonlyexercisethepowers that are conferred on it under the
law or the gaspipelinesaccesslegislationofanotherschemeparticipant; and(b)in
performing the functions or exercising the powers isnotsubjecttothe
controlor directionofanyMinisterexercisingpowerundertheQueenslandCompetitionAuthority Act
1997.6See theActs
Interpretation Act 1954, section 27A(12) (Delegation of
functions orpowers) for the restriction on subdelegation
of a power of delegation.
s
2214s 25Gas Pipelines
Access (Queensland) Act 1998Part 4Local
appeals bodyDivision 1Establishment,
function and powersof Queensland Gas AppealsTribunal22Establishment of tribunal(1)The Queensland Gas Appeals Tribunal is
established.(2)The tribunal consists of the following
members—(a)a chairperson;(b)a
pool of 5 panel members.(3)The tribunal is
to be convened only when an appeal is lodged.23Function of tribunalThe function of
the tribunal is to conduct reviews of decisionsunder the Gas
Pipelines Access (Queensland) Law.724Powers of tribunalFor performing
its function, the tribunal has—(a)the
powers conferred on it under this Act; and(b)the
powers conferred on a local appeals body under theGas
Pipelines Access (Queensland) Law.Division 2Provisions about tribunal members,registrar and other staff25Qualifications of tribunal
members(1)Thechairpersonofthetribunalistobenominatedfor7For
administrative review provisions of certain decisions—see part 6 of
schedule 1to the South Australian Act.
s
2615s 28Gas Pipelines
Access (Queensland) Act 1998appointment by
the Minister and must—(a)have been a
Supreme or District Court judge; or(b)be a
lawyer of at least 5 years standing.(2)Members of the pool are to be nominated by
the Minister.(3)In nominating a member of the pool,
regard must be had to thedesirabilityofthememberscollectivelyhavingknowledgeandunderstandingofthefinancial,technical,legalandeconomic aspects of the gas industry.26Appointment of members(1)ThemembersofthetribunalaretobeappointedbytheGovernor in Council.(2)AmemberisappointedunderthisActandnotunderthePublic Service Act 1996.27Duration of appointmentA member is to be
appointed for the term, not longer than 3years, stated in
the member’s instrument of appointment.28Vacation of office(1)The
office of a member becomes vacant if—(a)thememberresignsbysignednoticeofresignationgiven to the
Minister; or(b)the member is convicted of an
indictable offence; or(c)themember’sappointmentisterminatedbytheGovernor in Council.(2)TheGovernorinCouncilmayonlyterminateamember’sappointment
if—(a)the member becomes mentally or
physically incapableof satisfactorily performing the member’s
duties; or(b)theGovernorinCouncilissatisfiedthememberhasneglectedthemember’sdutiesorperformedthemember’s duties incompetently or
inefficiently.
s
2916s 32Gas Pipelines
Access (Queensland) Act 199829Remuneration of membersAmemberisentitledtobepaidtheremunerationandallowances decided by the Governor in
Council.30Appointment of registrar and other
staff(1)Aregistrarofthetribunal,andtheotherstaffthatmaybenecessary to
enable the tribunal to exercise its function, maybe
employed under thePublic Service Act 1996.(2)A public service officer may be
appointed under subsection(1)andmayholdtheappointmentinconjunctionwithanyother appointment the officer holds in
the public service.Division 3Reviews by the
tribunal31How application for review made(1)An application to the tribunal for a
review of a decision underthe Gas Pipelines Access (Queensland)
Law is made by filinga written notice with the registrar of
the tribunal.8(2)The registrar
must give a copy of the application to the localregulator or local Minister.32Who constitutes tribunal for
review(1)For reviewing the decision, the
tribunalistobeconstitutedby—(a)the chairperson of the tribunal;
and(b)3othermemberschosenbythechairpersonfromthepool of panel members.(2)The selection of the panel members is
at the discretion of thechairperson but should be based on the
subject of the review,theindividualskillsofthepoolmembersandtheiravailability.8Under
section 38(2) (Application for review) of schedule 1 to the South
AustralianAct, the application must be made within 14
days after the decision is made.
s
3317s 36Gas Pipelines
Access (Queensland) Act 199833Conduct of proceeding(1)Inaproceedingforreviewingthedecision,thetribunalmust—(a)observe natural justice; and(b)actasquickly,andwithaslittleformalityandtechnicality,asisconsistentwithafairandproperconsideration of
the issues before it.(2)In conducting the
proceeding, the tribunal—(a)is not bound by
the rules of evidence; and(b)may decide the
procedures to be followed.(3)However,thetribunalmustcomplywiththeGasPipelinesAccess(Queensland)Law,thisdivisionandanyproceduralrules prescribed
under a regulation.34VenuesThe tribunal is
to sit at the times and places the chairperson ofthe
tribunal decides.35Right of appearanceApartymayappearbeforethetribunalinpersonorberepresented by a lawyer or
agent.36Way questions decided(1)A question of law before the tribunal
is to be decided by thechairperson of the tribunal.(2)If the members are divided in opinion
about the decision to bemade on another question before the
tribunal—(a)if there is a majority of the same
opinion—the questionis decided according to the majority
opinion; or(b)otherwise—thequestionisdecidedaccordingtothechairperson’s
opinion.
s
3718s 39Gas Pipelines
Access (Queensland) Act 199837Notice of decisionOnmakingadecisiononthereview,theregistrarofthetribunalmustsendawrittencopyofthetribunal’sdecisionand
the reasons for it to the applicant and the local regulator
orlocal Minister.Division 4Procedural provisions aboutreviews by the tribunal38Procedural powers of tribunal(1)The tribunal may, by written notice
(anattendance notice),require a person to attend a proceeding
before the tribunal at astated time and place—(a)to give evidence; or(b)to produce a stated document or
thing.(2)At the proceeding, the tribunal may
proceed in the absence ofapartyifreasonablenoticeofthetimeandplaceoftheproceeding has been given to the
party.(3)The tribunal may adjourn the
proceeding from time to time.39Inspection of documents(1)Ifadocumentorthingisproducedtothetribunalataproceeding, the tribunal may—(a)inspect the document or thing;
and(b)make copies of, photograph, or take
extracts from, thedocument or thing if it is relevant to the
proceeding.(2)Thetribunalmayalsotakepossessionofthedocumentorthing, and keep it while it is necessary for
the proceeding.(3)While it keeps a document or thing,
the tribunal must permit apersonotherwiseentitledtopossessionofthedocumentorthing
to inspect, make copies of, photograph, or take extractsfrom,
the document or thing, at the reasonable time and placethe
tribunal decides.
s
4019s 42Gas Pipelines
Access (Queensland) Act 199840Offences(1)A
person served with an attendance notice must not—(a)fail, without reasonable excuse, to
attend as required bythe notice; or(b)fail,
without reasonable excuse, to continue to attend asrequired by the chairperson of the tribunal
until excusedfrom further attendance.Maximum
penalty—10 penalty units.(2)A person
appearing as a witness at a proceeding must not—(a)failtotakeanoathormakeanaffirmationwhenrequired by the chairperson; or(b)fail, without reasonable excuse, to
answer a question thepersonisrequiredtoanswerbyamemberofthetribunal; or(c)fail,
without reasonable excuse, to produce a documentorthingthepersonisrequiredtoproducebyanattendance notice.Maximum
penalty—10 penalty units.41Self-incriminationItisareasonableexcuseforapersontofailtoansweraquestion or to produce a document if
answering the questionorproducingthedocumentmighttendtoincriminatetheperson.42False
or misleading information(1)A person must not
state anything to the tribunal the personknows is false or
misleading in a material particular.Maximum
penalty—10 penalty units.(2)For an offence
against subsection (1), it is enough to allegeand prove that
the statement was ‘false or misleading’ to theperson’s
knowledge.
s
4320s 45Gas Pipelines
Access (Queensland) Act 199843False
or misleading documents(1)A person must not
give to the tribunal a document containinginformationthepersonknowsisfalse,misleadingorincomplete in a material
particular.Maximum penalty—10 penalty units.(2)Subsection (1) does not apply to a
person who, when givingthe document—(a)informs the tribunal, to the best of the
person’s ability,how it is false, misleading or incomplete;
and(b)gives the correct information to the
tribunal if the personhas, or can reasonably obtain, the
correct information.(3)For an offence against subsection (1),
it is enough to allegeandprovethatthedocumentwas‘false,misleadingorincomplete’ to the person’s
knowledge.44Tribunal to keep records of
proceedings(1)The tribunal must keep a record of its
proceeding.(2)Therecordmaybekeptinthewaythetribunalconsidersappropriate.Division 5Other provisions about the tribunal45Disclosure of interests(1)If a member of the tribunal is, or is
to be, a member of thetribunalasconstitutedforaproceedingforthereviewofadecision and the member has or
acquires an interest (whetherpecuniaryorotherwise)thatcouldconflictwiththeproperperformanceofthemember’sfunctionsinrelationtotheproceeding—(a)the
member must disclose the interest to the parties tothe
proceeding; and(b)exceptwiththeconsentofallpartiestotheproceeding—themembermustnottakepartintheproceedingorexerciseanypowersinrelationtotheproceeding.
s
4621s 47Gas Pipelines
Access (Queensland) Act 1998(2)Ifthechairpersonofthetribunalbecomesawarethatamember of the tribunal who is, or is
to be, a member of thetribunalasconstitutedforaproceedingforthereviewofadecision, has, in relation to the
proceeding, an interest of thetype mentioned in
subsection (1)—(a)if the chairperson considers the
member should not takepart,orcontinuetotakepart,intheproceeding—thechairperson must
direct the member accordingly; or(b)inanyothercase—thechairpersonmustcausetheinterest of the member to be disclosed to
the parties totheproceedingiftheinteresthasnotalreadybeendisclosed to them.46Contempt of tribunalA person must
not—(a)insult the tribunal or a member of the
tribunal; or(b)deliberately interrupt a proceeding of
the tribunal; or(c)createorcontinueorjoinincreatingorcontinuing,adisturbanceinornearaplacewherethetribunalisconducting a proceeding; or(d)doanythingthatwouldbecontemptofcourtifthetribunal were a judge acting
judicially.Maximum penalty—10 penalty units.47Protection of members, legal
representatives andwitnesses(1)A
member of the tribunal has, in relation to the performanceof
the member’s duties, the same protection and immunity asa
Supreme Court judge.(2)A lawyer or other person has, in
relation to appearing beforethetribunalforsomeoneelse,thesameprotectionandimmunity as a barrister appearing for
a party in a proceedingin the Supreme Court.(3)A person required to attend, or
appearing before the tribunalas a witness,
has, in relation to the attendance or appearance,
s
4822s 50Gas Pipelines
Access (Queensland) Act 1998thesameprotectionasawitnessinaproceedingintheSupreme Court.48Authentication of documentsAdocumentrequiringauthenticationbythetribunalissufficiently authenticated if it is signed
by a member of thetribunal.49Judicial notice of certain signaturesJudicial notice must be taken of the
signature of a member ofthe tribunal if it appears on a
document issued by the tribunal.50Confidentiality(1)This
section applies to a person who—(a)is or
has been—(i)a member of the tribunal; or(ii)a member of a subcommittee of the
tribunal; or(iii)theregistrarorotherpublicserviceofficerappointed to assist the tribunal; and(b)in that capacity, or because of an
opportunity providedbyactinginthatcapacity,acquiredinformationaboutanother person’s affairs or has access to,
or custody of, adocument about another person’s
affairs.(2)The person must not disclose the
information, or give accessto the document, to anyone
else.Maximumpenalty—100penaltyunitsor1year’simprisonment.(3)However,apersonmaydisclosetheinformationorgiveaccess to the document to someone
else—(a)to the extent necessary to perform the
person’s functionsunder this Act; or(b)ifthedisclosureorgivingofaccessisotherwiserequired or
permitted by law; or
s
5123s 52Gas Pipelines
Access (Queensland) Act 1998(c)ifthepersontowhomtheinformationordocumentrelates agrees to
the disclosure or giving of access.Division 6Subcommittees51Advisory and technical subcommittees(1)Thetribunalmayappointtheadvisorysubcommitteesandtechnical subcommittees it considers
appropriate to advise iton anything within the scope of its
function.(2)A person may be appointed to be a
member of a subcommitteewhether or not the person is a member
of the tribunal.(3)Thetribunalmustappoint1ofthemembersofasubcommittee as
chairperson of the subcommittee.(4)A
public service officer may be appointed as a member of asubcommittee and holds the appointment in
conjunction withany other appointment the officer holds in
the public service.52Proceedings of subcommittees(1)Allbusinessofasubcommitteemustbeconductedbyaquorum of at least 3 members.(2)A subcommittee must meet at the time
and place it decidesandconductitsproceedingsinthewayprovidedunderaregulation, or if no way is provided, in the
way it considersappropriate.(3)Thechairpersonofasubcommitteemustpresideatallmeetingsofthesubcommitteeatwhichthechairpersonispresent.(4)Ifthechairpersonisabsent,thememberchosenbythemembers present
at the meeting must preside.(5)Thepersonwhopresidesatthemeetingofasubcommitteehas a
deliberative vote and, if the votes are equal, a castingvote.
s
5324s 55Gas Pipelines
Access (Queensland) Act 1998Division 7General53Regulation-making power for pt 4TheGovernorinCouncilmaymakeregulationsunderthispart.Part 5Miscellaneous54Exemption from taxes(1)Anytax,otherthanadutyundertheDutiesAct2001,9imposed under a law of this State is not
payable for—(a)an exempt matter; or(b)anything done because of, or arising
out of, an exemptmatter including, for example, a transaction
entered intoor an instrument or document made, executed,
lodged orgiven.(2)In
this section—exempt mattermeans a transfer
of assets or liabilities that thelocalMinisterandtheTreasureraresatisfiedismadeforensuring a person
does not carry on a business of producing,purchasing or
selling natural gas in breach of the code or forthe
separation of certain activities from other activities of aperson as required by the code, and for no
other purpose.55Actions in relation to cross-boundary
pipelines(1)Ifapipelineisacross-boundarypipeline,anactiontakenunderthegaspipelinesaccesslegislationofaschemeparticipant in
whose jurisdictional area a part of the pipeline issituated—9ForexemptionfordutyundertheDutiesAct2001,seesection428(Exemption—particular instruments and
transactions underGas Pipelines Access(Queensland) Act
1998).
s
5525s 55Gas Pipelines
Access (Queensland) Act 1998(a)by,orinrelationto,arelevantMinister,orarelevantregulator, under that legislation; or(b)by, or in relation to, an arbitrator
appointed by a relevantregulator under that legislation;
or(c)bytheSupremeCourtortherelevantappealsbody,under
that legislation, in relation to the action taken by,orinrelationto,apersonorbodyreferredtoinparagraph (a) or
(b);is taken also to be action taken under the
gas pipelines accesslegislationofeachotherschemeparticipantinwhosejurisdictional
area a part of the pipeline is situated (that
otherlegislation)—(d)by,orinrelationto,arelevantMinister,orrelevantregulator, under
that other legislation; or(e)by, or in
relation to, an arbitrator appointed by a relevantregulator under that other legislation;
or(f)by the Supreme Court or relevant
appeals body, underthat other legislation;as the case
requires.(1A)Despitesubsection(1),theSupremeCourtdoesnothavejurisdiction to
make a declaration or order about the validity,or affecting the
operation, of a decision of a relevant Minister,relevant regulator or arbitrator in relation
to a cross-boundarypipelineunlesstheStatehasbeendeterminedtobetheschemeparticipantwithwhichthepipelineismostcloselyconnected.10(2)In this
section—actiontaken, includes a
decision made.cross-boundary pipelinemeans a
transmission pipeline, or adistributionpipeline,thatis,oristobe,situatedinthejurisdictional areas of 2 or more
scheme participants.10For provisions about determination of
scheme participant with which a pipeline ismost closely
connected, see the South Australian Act, appendix to schedule 1,
part 3(Terms and references).
s
5626s 57Gas Pipelines
Access (Queensland) Act 1998Part 6Local
transitional provisions56Definitions for
pt 6In this part—pipelinelicenceofaparticularnumbermeansapipelinelicenceofthatnumberunderthePetroleumandGas(Production and Safety) Act
2004.PNG to Queensland pipelinemeans
the whole or part of—(a)thenaturalgaspipeline,proposedbeforethecommencement of this Act, to be constructed
from nearKutubu in Papua New Guinea to a point in the
vicinityofGladstoneundertheproject called the ‘Papua NewGuinea–Queensland Gas Project’; and(b)anybranchlineofthepipelineapprovedbythelocalMinister that was proposed, before the
commencementof this Act, to be constructed.Queensland part of the PNG to Queensland
pipelinemeansthat part of the
PNG to Queensland pipeline proposed to bewithin the State
or the coastal waters of the State for which acompetitive
selection process was, before the commencementofthisAct,beingundertakenforconsiderationbytheMinister under thePetroleum Act
1923, former section 70A.1157Pipelines taken to be covered
pipelinesThe following pipelines are taken to be
covered pipelines forthe Gas Pipelines Access Law—(a)thepipelinementionedinpipelinelicenceno.32(Gatton to
Gympie);(b)thepipelinementionedinpipelinelicenceno.41(Ballera to Mt
Isa);(c)the PNG to Queensland pipeline.11Petroleum Act 1923, former section
70A (Decisions relating to the grant of pipelinelicences after a competitive selection
process)
s
5827s 59Gas Pipelines
Access (Queensland) Act 199858Reference tariffs for certain
pipelines(1)This section applies to the following
pipelines—(a)thepipelinementionedinpipelinelicenceno.2(Wallumbilla to
Brisbane);(b)thepipelinementionedinpipelinelicenceno.24(Ballera to
Wallumbilla);(c)thepipelinementionedinpipelinelicenceno.30(Wallumbilla to
Rockhampton System);(d)thepipelinementionedinpipelinelicenceno.32(Gatton to
Gympie);(e)thepipelinementionedinpipelinelicenceno.41(Ballera to Mt
Isa).(2)ThelocalMinistermayonceonly,bygazettenoticemadewithin 30 days after this section
commences, approve a tariffarrangement for each pipeline.(3)Theapprovedtariffarrangementistakentobeapprovedunder the Gas
Pipelines Access Law as the reference tariff andreferencetariffpolicyfortheaccessarrangementtobesubmittedunderthelawforthepipelineuntiltherevisionscommencement date
for the access arrangement.(4)Therevisionssubmissiondateandtherevisionscommencement date
mentioned in the reference tariff policyare taken to be
the revisions submission date and the revisionscommencementdatefortheaccessarrangementtobesubmittedundertheGasPipelinesAccessLawforthepipeline.59Access principles for the Queensland
part of the PNG toQueensland pipeline(1)ThissectionappliestotheQueenslandpartofthePNGtoQueensland
pipeline if access principles for the pipeline are—(a)submittedtothelocalMinisterbefore1December2002; and(b)approved by the local Minister within
1 year after theaccess principles are submitted to the local
Minister.
s
6028s 60Gas Pipelines
Access (Queensland) Act 1998(2)TheprovisionsofthePetroleumAct1923inforceimmediately before the commencement of
theGas Supply Act2003,
chapter 8, part 5,12about access principles continue
toapply to the pipeline until access
principles for the pipelineareapprovedbythelocalMinisterandagreedtobytheACCC.13(3)TheapprovedaccessprinciplesaretakentobeapprovedundertheGasPipelineAccessLawastheaccessarrangementsforthepipelineandtherevisionssubmissiondate
mentioned in the approved access principles is taken tobe
the revisions submission date under the law.1460Access principles for certain other
pipelinesThePetroleum Act 1923, part 8 in force
immediately beforethecommencementoftheGasSupplyAct2003,chapter8,part
5, continues to apply to the following pipelines but onlyuntil
the relevant regulator approves the access arrangementsfor
the pipeline under the Gas Pipelines Access Law—(a)thepipelinementionedinpipelinelicenceno.2(Wallumbilla to
Brisbane);(b)thepipelinementionedinpipelinelicenceno.24(Ballera to
Wallumbilla);(c)thepipelinementionedinpipelinelicenceno.30(Wallumbilla to
Rockhampton system);(d)thepipelinementionedinpipelinelicenceno.32(Gatton to
Gympie);(e)the pipeline licence mentioned in
pipeline licence no. 41(Ballera to Mt Isa).12Gas Supply Act 2003,
chapter 8, part 5 (Amendment of Petroleum Act 1923)13Under theTrade Practices
Act 1974(Cwlth), section 44ZZM, the ACCC has
thefunction of advising the local Minister in
relation to access principles under thePetroleum Act
1923for the PNG to Queensland pipeline.14AccessprinciplesfortheadjacentareacannottakeeffectotherthanwiththeapprovaloftheCommonwealthMinisterundertheGasPipelinesAccess(Commonwealth) Act 1998.
29Gas Pipelines Access (Queensland) Act
1998Attachment to the Gas Pipelines Access(Queensland) Act 1998Gas Pipelines
Access (South Australia) Act1997TheattachmenttothisActcontainstheSouthAustralianreprint of theGas Pipelines
Access (South Australia) Act 1997as at 14
September 2006.For the most up-to-date reprint andfor
information about this reprint, including annotations, seetheSouthAustralianParliamentaryCounselwebsite<www.legislation.sa.gov.au>.
Version: 14.9.2006South
AustraliaGas Pipelines Access (South Australia) Act
1997An Act to make provision for the regulation
of third party access to natural gas pipelinesystems; to
repeal theNatural Gas Pipelines Access Act 1995;
and for other purposes.ContentsPreamblePart
1—Preliminary1Short title2Commencement3Interpretation4Crown to be bound5Application to coastal waters6Extra-territorial operationPart
2—Gas Pipelines Access (South Australia) Law and Gas
PipelinesAccess (South Australia) Regulations7Application in South Australia of the
Gas Pipelines Access Law8Application of
regulations under Gas Pipelines Access Law9Interpretation of some expressions in the
Gas Pipelines Access (South Australia) Law andRegulationsPart 3—Power to
make regulations for the Gas Pipelines Access Law10Power to make regulations for the Gas
Pipelines Access Law11Civil penalty
provisions of the Gas Pipelines Access Law12Specific regulation-making powersPart
4—National administration and enforcementDivision
1—Conferral of functions and powers13Conferral of functions on Commonwealth
Minister and Commonwealth bodies14Conferral of power on Commonwealth Minister
and Commonwealth bodies to do acts inthis
State15Conferral of power on Ministers,
Regulators and appeals bodies of other schemeparticipants16Conferral of functions on Code
Registrar17Functions and powers conferred on
South Australian Minister, Regulator and appealsbody[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 20021
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006ContentsPart
5—General22Exemption from taxes23Actions in relation to cross-boundary
pipelines24Subordinate Legislation Act
1978Part 6—Local administration and
enforcementDivision 1—Code Registrar25Code Registrar26Delegation27Annual report28ImmunityDivision 2—Local
Regulator30Functions and powers31Independence of local Regulator32Certain provisions of Essential
Services Commission Act not to apply40Annual report41ImmunityDivision
3—Appeals body42Experts to sit with District Court as
assessors43Certain provisions of District Court
Act not to applyDivision 4—Miscellaneous47RegulationsPart 7—Local
transitional and consequential provisionsDivision
1—Transitional provisions48Reference
tariffs during transitional periodDivision
2—Consequential amendmentsSubdivision 1—Preliminary49InterpretationSubdivision
2—Repeal ofNatural Gas Pipelines Access Act 199550RepealSchedule 1—Third
party access to natural gas pipelinesPart
1—Preliminary1Citation2Definitions3Scheme participants4Interpretation generallyPart 2—National
Third Party Access Code for Natural Gas Pipeline Systems5The Code2This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Contents6Amendment of Code7Availability of copies of amended
Code8EvidencePart
3—Pipelines9Definitions10Application for classification and
determination of close connection for purposes ofcoverage under Code11Classification when Ministers do not
agree12Code Registrar to record
classification etc13Preventing or hindering access1Part 3A—Greenfields pipeline
incentivesDivision 1—Preliminary13ADefinitions13BNational gas objective13CPipeline coverage criteriaDivision 2—Binding no-coverage
determinationsSubdivision 1—Application13DApplication for binding no-coverage
determinations for proposed pipelines13ENotification of relevant MinisterSubdivision 2—Investigation and
recommendation by NCC13FGeneral
principles governing NCC's recommendations on applications for
binding no-coverage determinations13GNotice of application13HDraft recommendation13IPublication of draft recommendation and
invitation to make submissions and comments13JConsideration of submissions and comments
and making of final recommendationSubdivision
3—Ministerial determination of application13KMinister's decision on application13LEffect of determination13MConsequences of Minister deciding
against making binding no-coverage determination forinternational pipelineDivision 3—Price
regulation exemptionsSubdivision 1—Application for price
regulation exemption13NApplication for
price regulation exemption13ONotification of
Commonwealth MinisterSubdivision 2—Investigation and
recommendation by NCC13PGeneral
principle governing NCC's recommendation13QInvitation of submissions and
comments13RNCC's duty to make recommendation
within 42 days[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
20023
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006ContentsSubdivision
3—Making and effect of price regulation exemption13SMaking of price regulation
exemption13TEffect of price regulation
exemption13ULimited access arrangement13VOther obligations to which service
provider is subjectDivision 4—Provisions of general application
to greenfields pipeline incentivesSubdivision
1—Extended or modified application of greenfields pipeline
incentive13WRequirement for conformity between
pipeline description and pipeline as constructed13XPower of relevant Minister to amend
pipeline descriptionSubdivision 2—Early termination of
greenfields pipeline incentive13Y13Z13ZA13ZBGreenfields pipeline incentive may
lapseRevocation by consentRevocation for
misrepresentationExhaustive provision for termination of
greenfields pipeline incentivePart
4—Arbitration of access disputes14Definitions15Application of Part16Person to conduct arbitration17Where ACCC conducts arbitration18Hearing to be in private19Right to representation20Procedure21Particular powers of arbitrator22Determination23Contempt24Disclosure of information25Power to take evidence on oath or
affirmation26Failing to attend as a witness27Failing to answer questions etc28Intimidation etc29Party may request arbitrator to treat
material as confidential30Costs31Appeal to CourtPart
5—Proceedings for breach of law32Proceedings33Criminal proceedings do not lie34Civil penalty35Injunctions36Actions for damages for contravention of
conduct provision37Declaratory reliefPart
6—Administrative appeals38Application for
review39Limited review of certain decisions of
Regulator4This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997ContentsPart
7—General40Supply and haulage of natural
gas41Power to obtain information and
documents42Restriction on disclosure of
confidential information43Application for
review of disclosure noticeSchedule
2—National Third Party Access Code for Natural Gas PipelineSystemsLegislative
history[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
20025
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997PreamblePreambleThe
Council of Australian Governments agreed, in February 1994, to
generalprinciples of competition policy reform to
enable third parties, in particularcircumstances,
to gain access to essential facilities.The Council of
Australian Governments, as part of that commitment to reform,
agreedto more specific proposals for the
development of free and fair trade in natural gas.The
Commonwealth, the States of New South Wales, Victoria, Queensland,
SouthAustralia, Western Australia and Tasmania,
the Northern Territory and the AustralianCapital
Territory agreed in November 1997 to the enactment of legislation
in theCommonwealth and those States and
Territories so that a uniform national frameworkapplies for third party access to all gas
pipelines that—(a)facilitates the development and
operation of a national market for natural gas;and(b)prevents abuse of monopoly power;
and(c)promotes a competitive market for
natural gas in which customers maychoose
suppliers, including producers, retailers and traders; and(d)provides rights of access to natural
gas pipelines on conditions that are fairand reasonable
for the owners and operators of gas transmission anddistribution pipelines and persons wishing
to use the services of thosepipelines;
and(e)provides for resolution of
disputes.The Parliament of South Australia enacts as
follows:Part 1—Preliminary1—Short
titleThis Act may be cited as theGas
Pipelines Access (South Australia) Act 1997.2—Commencement(1)This
Act will come into operation on a day to be fixed by proclamation,
not being aday earlier than the day on which theGas
Pipelines Access (Commonwealth) Act 1997of the
Commonwealth receives the Royal Assent.(2)The
Governor may, by the same proclamation or by proclamations made on
differentdays, fix different days for the
commencement of different provisions of this Act,including the different provisions of
Schedule 1.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
20021
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Part
1—Preliminary3—Interpretation(1)In
this Act—Gas Pipelines Access Lawmeans—(a)Schedule 1—(i)as
enacted; or(ii)if amended, as
amended and in force for the time being; and(b)theNational Third Party Access Code for
Natural Gas Pipeline Systems(acopy
of which, as agreed by the Council of Australian Governments on
7November 1997, is set out in Schedule 2) or,
if that Code is amended inaccordance with Schedule 1, that Code
as so amended and in force for thetime
being;Gas Pipelines Access (South Australia)
Lawmeans the provisions applying becauseof
section 7;Gas Pipelines Access (South Australia)
Regulationsmeans the provisions applyingbecause of section 8.(2)Words and expressions used in Schedule 1, as
applying because of section 7, and inthis Act have
the same respective meanings in this Act as they have in that
Scheduleas so applying.(3)Subsection (2) does not apply to the extent
that the context or subject matter otherwiseindicates or
requires.4—Crown to be boundThis Act,
theGas Pipelines Access (South Australia)
Lawand theGas
PipelinesAccess (South Australia) Regulationsbind
the Crown, not only in the right of SouthAustralia but
also, so far as the legislative power of the Parliament permits,
the Crownin all its other capacities.5—Application to coastal waters(1)This Act, theGas Pipelines
Access (South Australia) Lawand theGas
PipelinesAccess (South Australia) Regulationsapply in the coastal waters of this
State.(2)In subsection (1)—coastal
waters, in relation to this State, means any sea
that is on the landward side ofthe adjacent
area of this State but is not within the limits of this
State.6—Extra-territorial operation(1)It is the intention of the Parliament
that the operation of this Act, theGas
PipelinesAccess (South Australia) Lawand
theGas Pipelines Access (South
Australia)Regulationsshould, as far
as possible, include operation in relation to the following—(a)things situated in or outside this
State;(b)acts, transactions and matters done,
entered into or occurring in or outside thisState;2This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997Preliminary—Part 1(c)things, acts, transactions and matters
(wherever situated, done, entered into oroccurring) that
would, apart from this Act, be governed or otherwise
affectedby the law of another State, a Territory,
the Commonwealth or a foreigncountry.(2)Nothing in subsection (1) has effect
in relation to a pipeline to the extent that thepipeline is situated, or partly situated,
beyond the jurisdictional areas of all the schemeparticipants.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 20023
1.7.2003—Gas Pipelines Access (South
Australia) Act 1997Gas Pipelines Access (South Australia) Law
and Gas Pipelines Access (South Australia) Regulations—Part
2Part 2—Gas Pipelines Access (South
Australia) Law and GasPipelines Access (South Australia)
Regulations7—Application in South Australia of the Gas
Pipelines Access LawTheGas Pipelines
Access Law—(a)applies as a law
of South Australia; and(b)as so applying
may be referred to as theGas Pipelines Access (SouthAustralia) Law.8—Application of regulations under Gas
Pipelines Access LawThe regulations in force for the time
being under Part 3 of this Act—(a)apply as regulations in force for the
purposes of the Gas Pipelines Access(South
Australia) Law; and(b)as so applying may be referred to as
theGas Pipelines Access (SouthAustralia) Regulations.9—Interpretation of some expressions in the
Gas Pipelines Access (SouthAustralia) Law and RegulationsIn
theGas Pipelines Access (South Australia)
Lawand theGas Pipelines
Access(South Australia) Regulations—Codemeans theNational Third Party Access Code for Natural
Gas Pipeline Systems(a copy of which, as agreed by the
Council of Australian Governments on 7 November1997, is set out
in Schedule 2) or, if that Code is amended in accordance
withSchedule 1, that Code as so amended and in
force for the time being, as it appliesbecause of
section 7 as a law of South Australia;the Courtmeans the Supreme Court;designated
appeals bodymeans the local appeals body;designated Ministermeans the local
Minister;District Courtmeans the
Administrative and Disciplinary Division of the DistrictCourt;Essential
Services Commissionmeans the body of that name established
under theEssential Services Commission Act
2002;Gas Pipelines Access Laworthis Lawmeans theGas
Pipelines Access (SouthAustralia) Law;Legislaturemeans the
Parliament of South Australia;local appeals
bodymeans the District Court;local Ministermeans the
Minister to whom administration of this Act is committed;local Regulatormeans the
Essential Services Commission;this scheme
participantmeans the State of South Australia;Supreme Courtmeans the
Supreme Court of South Australia.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 20021
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Power to make regulations for the Gas
Pipelines Access Law—Part 3Part 3—Power to
make regulations for the Gas Pipelines AccessLaw10—Power to make regulations for the Gas
Pipelines Access Law(1)The Governor may
make regulations—(a)contemplated by theGas
Pipelines Access Law; or(b)for
or with respect to any matter or thing necessary to be prescribed
to giveeffect to theGas Pipelines
Access Law.(2)A regulation
under this Part may be made only on the unanimous recommendation
ofthe relevant Ministers of the scheme
participants.(3)The appendix to Schedule 1 applies in
relation to a regulation under this Part.(4)Section 10 of theSubordinate
Legislation Act 1978does not apply to a regulationunder this Part.11—Civil penalty
provisions of the Gas Pipelines Access Law(1)The
regulations may provide that—(a)a
specified regulatory provision or a regulatory provision of a
specified class;or(b)a specified
conduct provision or a conduct provision of a specified
class,is, for the purposes of theGas
Pipelines Access Law, a civil penalty provision.(2)The regulations may prescribe, for a
breach of a civil penalty provision, an amount notexceeding $100 000 that the Court may
determine is payable by a person whocontravenes the
provision.12—Specific regulation-making powersThe
regulations may make provision for or with respect to—(a)prescribing, for the purposes of the
definition ofpipelinein Schedule 1,
gasprocessing plants, exit flanges and
connection points;(b)the procedure and conduct of
arbitrations under Part 4 of Schedule 1;(c)the
person or persons required to make available copies of—(i)the Code as set out in Schedule
2;(ii)that Code, if
amended, as amended and in force for the time being;(iii)amendments made
to that Code;(d)the place or places at which the
copies referred to in paragraph (c) are to beavailable for
inspection by the public.[15.9.2006] This version is not
published under theLegislation Revision and Publication Act
20021
1.7.2003—Gas Pipelines Access (South
Australia) Act 1997National administration and enforcement—Part
4Conferral of functions and powers—Division
1Part 4—National administration and
enforcementDivision 1—Conferral of functions and
powers13—Conferral of functions on Commonwealth
Minister and Commonwealthbodies(1)The
Commonwealth Minister, the ACCC, the NCC and the Australian
CompetitionTribunal have the functions and powers
conferred or expressed to be conferred onthem
respectively under theGas Pipelines Access (South Australia)
Law.(2)In addition to
the powers mentioned in subsection (1), the Commonwealth
Ministerand the bodies referred to in that
subsection have power to do all things necessary orconvenient to be done in connection with the
performance or exercise of the functionsand powers
referred to in that subsection.14—Conferral of
power on Commonwealth Minister and Commonwealthbodies to do acts
in this StateThe Commonwealth Minister, the ACCC, the NCC
and the Australian CompetitionTribunal have
power to do acts in or in relation to this State in the performance
orexercise of a function or power expressed to
be conferred on them respectively by thegas pipelines
access legislation of another scheme participant.15—Conferral of power on Ministers,
Regulators and appeals bodies of otherscheme
participantsThe local Minister, the local Regulator and
the local appeals body within the meaningof the gas
pipelines access legislation of another scheme participant have
power to doacts in or in relation to this State in the
performance or exercise of a function or powerexpressed to be
conferred on them respectively by the gas pipelines access
legislationof that other scheme participant.16—Conferral of functions on Code
Registrar(1)The Code Registrar—(a)has the functions and powers conferred
or expressed to be conferred on theCode Registrar
under theGas Pipelines Access (South Australia)
Laworunder theNational Gas
Agreement; and(b)any
other functions and powers conferred on the Code Registrar
byunanimous resolution of the relevant
Ministers of the scheme participants.(2)In
addition to the powers mentioned in subsection (1), the Code
Registrar has power todo all things necessary or convenient
to be done in connection with the performanceor exercise of
the functions and powers referred to in that subsection.17—Functions and powers conferred on South
Australian Minister, Regulatorand appeals
bodyIf the gas pipelines access legislation of
another scheme participant confers a functionor power
on—(a)the Minister; or[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 20021
Gas
Pipelines Access (South Australia) Act 1997—1.7.2003Part
4—National administration and enforcementDivision
1—Conferral of functions and powers(b)the
local Regulator; or(c)the local appeals body,the
Minister, the local Regulator or the local appeals body—(d)may perform that function or exercise
that power; and(e)may do all things necessary or
convenient to be done in connection with theperformance or
exercise of that function or power.2This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997General—Part 5Part
5—General22—Exemption from taxes(1)Any
stamp duty or other tax imposed by or under a law of this State is
not payable inrelation to—(a)an
exempt matter; or(b)anything done (including, for example,
a transaction entered into or aninstrument or
document made, executed, lodged or given) because of, orarising out of, an exempt matter.(2)In this section—exempt
mattermeans a transfer of assets or liabilities
that the Minister and theTreasurer are satisfied is made for
the purpose of ensuring that a person does not carryon a
business of producing, purchasing or selling natural gas in breach
of the Code orfor the purpose of the separation of certain
activities from other activities of a personas required by
the Code, and for no other purpose.23—Actions in
relation to cross-boundary pipelines(1)If a
pipeline is a cross-boundary pipeline, any action taken under the
gas pipelinesaccess legislation of a scheme participant
in whose jurisdictional area a part of thepipeline is
situated—(a)by, or in relation to, a relevant
Minister, or a relevant Regulator, within themeaning of that
legislation; or(b)by, or in relation to, an arbitrator
appointed by a relevant Regulator within themeaning of that
legislation; or(c)by the Supreme Court, or the relevant
appeals body, within the meaning ofthat
legislation, in relation to the action taken by, or in relation to,
a person orbody referred to in paragraph (a) or
(b),is taken also to be action taken under the
gas pipelines access legislation of each otherscheme
participant in whose jurisdictional area a part of the pipeline is
situated (thatother
legislation)—(d)by, or in
relation to, a relevant Minister, or relevant Regulator, within
themeaning of that other legislation; or(e)by, or in relation to, an arbitrator
appointed by a relevant Regulator within themeaning of that
other legislation; or(f)by the Supreme
Court, or relevant appeals body, within the meaning of thatother legislation,as the case
requires.(1a)Despite
subsection (1), the Supreme Court does not have jurisdiction to
make adeclaration or order about the validity, or
affecting the operation, of a decision of arelevant
Minister, relevant Regulator or arbitrator in relation to a
cross-boundarydistribution pipeline unless this State has
been determined to be the scheme participantmost closely
connected to the pipeline (see Part 3 of Schedule 1).[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
20021
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Part
5—General(2)In this section—cross-boundary
pipelinemeans a transmission pipeline, or a
distribution pipeline, thatis, or is to be,
situated in the jurisdictional areas of 2 or more scheme
participants.(3)A reference in this section to an
action that is taken includes a reference to a decisionthat
is made.24—Subordinate Legislation Act
1978TheSubordinate Legislation Act
1978does not apply to theNational Third
PartyAccess Code for Natural Gas Pipeline
Systemsreferred to in paragraph (b) of thedefinition ofGas Pipelines
Access Lawin section 3(1) of this Act.2This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
1.7.2003—Gas Pipelines Access (South
Australia) Act 1997Local administration and enforcement—Part
6Code Registrar—Division 1Part
6—Local administration and enforcementDivision 1—Code
Registrar25—Code Registrar(1)There will be a Code Registrar.(2)The Code Registrar will be appointed
by the Governor.(3)The Code Registrar is appointed, and
holds office, in accordance with thePublicSector Management Act 1995.(4)The Code
Registrar may be removed from office by resolution passed by at
least two-thirds of the relevant Ministers of the
scheme participants.(5)Subsection (4)
does not derogate from the provisions of thePublic
SectorManagement Act 1995relating to
removal of an employee from office.26—Delegation(1)The
Code Registrar may delegate functions or powers to a person or body
of personsthat is, in the Code Registrar's opinion,
competent to exercise the relevant functions orpowers.(2)A delegation under this
section—(a)must be in writing; and(b)may be conditional or unconditional;
and(c)is revocable at will; and(d)does not prevent the delegator from
acting in any matter.27—Annual report(1)The
Code Registrar must, within three months after the end of each
financial year,deliver to the Minister a report on the Code
Registrar's operations during that financialyear.(2)The Minister must have a copy of the
report laid before both Houses of Parliamentwithin 12
sitting days after receipt of the report.(3)The
Code Registrar must, as soon as practicable after delivering a
report to theMinister, provide a copy of the report to
the relevant Minister of each of the otherscheme
participants.28—Immunity(1)No
personal liability attaches to the Code Registrar or a delegate of
the Code Registrarfor an act or omission in good faith in the
exercise or discharge, or purported exerciseor discharge, of
official powers or functions of the Code Registrar or
delegate.(2)A liability that would, but for
subsection (1), lie against a person, lies instead againstthe
Crown.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
20021
Gas
Pipelines Access (South Australia) Act 1997—1.7.2003Part
6—Local administration and enforcementDivision 2—Local
RegulatorDivision 2—Local Regulator30—Functions and powers(1)The
local Regulator has—(a)the functions
and powers conferred on the local Regulator under the GasPipelines Access (South Australia) Law;
and(b)the functions and powers conferred on
the local Regulator under theNationalGas
Agreement.(2)In performing
functions the local Regulator should make appropriate use of
theexpertise of the Technical Regulator under
theGas Act 1997in relation to
safety ortechnical standards in the gas supply
industry.31—Independence of local RegulatorThe
local Regulator is entirely independent of direction or control by
the Crown orany Minister or officer of the Crown in the
performance of the Regulator's functionsand
powers.32—Certain provisions of Essential Services
Commission Act not to applySection 6 and
Part 5 of theEssential Services Commission Act
2002do not apply tothe Essential
Services Commission when acting as the local Regulator.40—Annual report(1)The
local Regulator must, within three months after the end of each
financial year,deliver to the Minister a report on the
Regulator's operations during that financial year.(1a)The report may
be incorporated with the Essential Services Commission's report
undersection 39 of theEssential
Services Commission Act 2002.(2)The Minister must have a copy of the
report laid before both Houses of Parliamentwithin 12
sitting days after receipt of the report.41—Immunity(1)No
personal liability attaches to the local Regulator, a delegate of
the Regulator or aperson acting under the direction or
authority of the Regulator for an act or omissionin
good faith in the exercise or discharge, or purported exercise or
discharge, ofofficial powers or functions.(2)A liability that would, but for
subsection (1), lie against a person, lies instead againstthe
Crown.Division 3—Appeals body42—Experts to sit
with District Court as assessors(1)The
Minister must establish a panel of experts who may sit as assessors
with theDistrict Court consisting of persons with
knowledge of, or experience in, the gassupply industry
or in the fields of commerce or economics.2This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
1.7.2003—Gas Pipelines Access (South
Australia) Act 1997Local administration and enforcement—Part
6Appeals body—Division 3(2)A
member of a panel is to be appointed by the Minister for a term of
office notexceeding 3 years and on conditions
determined by the Minister and specified in theinstrument of
appointment.(3)A member of a panel is, on the
expiration of a term of office, eligible forreappointment.(4)Subject to subsection (5) and except in the
case of an appeal limited to a question oflaw, a judicial
officer of the District Court must select 2 members from the panel
to sitwith the Court in proceedings under
theGas Pipelines Access (South Australia)
Law.(5)A member of a
panel who has a direct or indirect pecuniary or other interest in
amatter before the Court is disqualified from
participating in the hearing of the matter.(6)Subsection (5) does not apply if the
interest is as a result of the supply of goods orservices that are available to members of
the public on the same terms and conditions.(7)If a
member of a panel sitting with the District Court dies or is for
any reason unableto continue with any proceedings, the Court
constituted of the judicial officer who ispresiding at the
proceedings and the other member of the panel sitting with the
Courtmay, if the judicial officer so determines,
continue and complete the proceedings.(8)If
proceedings are reheard, the District Court may have regard to any
record ofproceedings made in the earlier proceedings
(including a record of evidence taken inthose
proceedings).43—Certain provisions of District Court Act
not to applyThe following provisions of theDistrict Court Act 1991do not apply to
the DistrictCourt when acting as the local appeals
body:section 42Csection
42Dsection 42Fsection
42G(2)Part 7.Division
4—Miscellaneous47—Regulations(1)The
Governor may make such regulations as are contemplated by, or
necessary orexpedient for the purposes of, the
application of this Act in this State.(2)Without limiting the generality of
subsection (1), the regulations may fix fees inrespect of any
matter under this Act and provide for the waiver or refund of such
fees.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
20023
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997Local transitional and consequential
provisions—Part 7Transitional provisions—Division 1Part
7—Local transitional and consequential provisionsDivision 1—Transitional provisions48—Reference tariffs during transitional
period(1)In approving access arrangements under
the Gas Pipelines Access (South Australia)Law that will
have effect during the transitional period, the South
AustralianIndependent Pricing and Access
Regulator—(a)must take into account the need to
manage the transition to reference tariffsfixed in
accordance with the principles set out in the Law in an
orderlyfashion so as to avoid sudden significant
increases in the prices paid byconsumers for
services provided by means of Code pipelines; and(b)for that purpose, may require
adjustments to be made to the reference tariffsthat would
otherwise apply in accordance with the principles set out in
theLaw during the transitional period.(2)An access arrangement must set out the
nature of, and the reasons for, an adjustmentof a reference
tariff under this section.(3)In this
section—transitional periodmeans the period
from the commencement of this section to thedate on which
all consumers within the meaning of theGas Act
1997are classified ascontestable
consumers for the purposes of that Act.Division
2—Consequential amendmentsSubdivision 1—Preliminary49—InterpretationA reference in
this Division to the principal Act is a reference to the Act
referred to inthe heading to the Subdivision in which the
reference occurs.Subdivision 2—Repeal ofNatural Gas
Pipelines Access Act 199550—Repeal(1)TheNatural Gas Pipelines Access Act
1995(theformer
legislation) is repealed.(2)However, the former legislation (except Part
2) continues to apply in relation to aCode pipeline
until an access arrangement is approved under theGas
Pipelines Access(South Australia) Lawin relation to
the pipeline.(3)The regulations may modify the former
legislation (including any regulations madeunder the former
legislation) for the purposes of its continued application
undersubsection (2).[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 20021
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Part
7—Local transitional and consequential provisionsDivision 2—Consequential amendments(4)Arbitration or legal proceedings under
the former legislation relating to a Codepipeline that
have commenced but not been completed when an access arrangement
isapproved in relation to the pipeline under
theGas Pipelines Access (South
Australia)Lawmay be continued under the former
legislation as if an access arrangement hadnot been so
approved.(5)For the purposes of this section,
arbitration proceedings will be taken to havecommenced under
the former legislation if a proponent of an access proposal has,
inaccordance with that legislation, asked the
regulator to refer an access dispute toarbitration.(6)An
award of an arbitrator under the former legislation relating to a
Code pipeline willhave effect as a determination of an
arbitrator under theGas Pipelines Access (SouthAustralia) Law.2This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1Schedule 1—Third party access to
natural gas pipelinesPart 1—Preliminary1—CitationThis
Schedule and theNational Third Party Access Code for Natural
Gas PipelineSystemsset out in
Schedule 2 or, if that Code is amended in accordance with
thisSchedule, that Code as so amended and in
force for the time being may together bereferred to as
theGas Pipelines Access Law.2—DefinitionsIn this
Law—ACCCmeans the
Australian Competition and Consumer Commission established
bysection 6A of theTrade Practices
Act 1974of the Commonwealth and includes amember of the Commission or a Division of
the Commission performing functions ofthe
Commission;adjacent area, in respect of
a State or Territory, means the area that is identified insection 5A of thePetroleum
(Submerged Lands) Act 1967of the Commonwealth asthe
adjacent area in respect of that State or Territory;assetmeans any legal
or equitable estate or interest (whether present or future
andwhether vested or contingent) in real or
personal property of any description(including
money) and includes securities, choses in action and
documents;Australian Competition Tribunalmeans the Australian Competition Tribunal
referredto in theTrade Practices
Act 1974of the Commonwealth and includes a member
ofthe Tribunal or a Division of the Tribunal
performing functions of the Tribunal;civil penalty
provisionmeans—(a)section 13, section 13V(3) or section 40;
or(b)a provision of the Code that, under
the regulations, is a civil penalty provisionfor the purposes
of this Law;Code pipelinehas the same
meaning ascovered pipelinehas in the
Code;Code Registrarmeans a person
appointed to or acting in the position of CodeRegistrar
appointed under theGas Pipelines Access (South Australia) Act
1997ofSouth Australia;Commonwealth
Ministermeans the local Minister within the meaning
of the gaspipelines access legislation of the
Commonwealth;commencement date, in relation to
a provision of this Law, means the date on whichthat
provision comes into operation for this scheme participant;conduct provisionmeans—(a)section 13; or(b)a
provision of the Code that, under the Code, is a conduct provision
for thepurposes of this Law;[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 20021
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelinescross-boundary pipelinemeans a
distribution pipeline that is situated in thejurisdictional
areas of 2 or more scheme participants;distribution
pipelinemeans a pipeline—(a)that
is described in the Code as a distribution pipeline and has not
beenreclassified as a transmission pipeline;
or(b)that is classified in accordance with
this Law as a distribution pipeline,and includes any
extension or expansion of such a pipeline that, under an
accessarrangement under the Code, is to be treated
as part of the pipeline.gas pipelines access
legislation, in relation to a scheme participant,
means—(a)in the case of South Australia—(i)Parts 1, 2, 3, 4 and 5 of theGas
Pipelines Access (South Australia)Act 1997of
South Australia; and(ii)regulations in
force under Part 3 of that Act; and(iii)theGas Pipelines Access Law(within the meaning of section 3(1)
ofthat Act), as applying as a law of South
Australia; and(b)in the case of Western
Australia—(i)provisions of an Act of Western
Australia that substantiallycorrespond to
the provisions of Parts 1, 2, 3, 4 and 5 of the SouthAustralian Act; and(ii)regulations in force under the Western
Australia Act that makeprovisions substantially corresponding
to the provisions ofregulations under Part 3 of the South
Australian Act; and(iii)provisions that
substantially correspond to the provisions referred toin
paragraph (a) of the definition ofGas Pipelines
Access Lawinsection 3(1) of the South Australian
Act; and(iv)the provisions
referred to in paragraph (b) of that definition, asapplying as a law of Western
Australia;(c)in the case of any other scheme
participant—(i)provisions of an Act of the scheme
participant that substantiallycorrespond to
the provisions of Parts 1, 2, 4 and 5 of the SouthAustralian Act; and(ii)regulations in force under Part 3 of the
South Australian Act, asapplying as a law of that scheme
participant; and(iii)theGas
Pipelines Access Law(within the meaning of section 3(1)
ofthe South Australian Act), as applying as a
law of that schemeparticipant;jurisdictional
area, in relation to a scheme participant,
means—(a)if the scheme participant is the
Commonwealth—2This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(i)if the gas
pipelines access legislation in force in the Commonwealthapplies in the adjacent area of a State or
the Northern Territorybecause of section 9(1A) or 11(1A) of
the P(SL) Act—the adjacentarea in respect of that State or
Territory; and(ii)if the gas
pipelines access legislation in force in the Commonwealthapplies in an external Territory under
section 8 of theGas PipelinesAccess
(Commonwealth) Act 1997of the Commonwealth—the areawithin the limits of that Territory and the
adjacent area in respect ofthat Territory;
and(iii)if the gas
pipelines access legislation in force in the Commonwealthapplies in the Jervis Bay Territory under
section 8 of theGasPipelines Access (Commonwealth) Act
1997of theCommonwealth—the
area within the limits of that Territory; and(b)if
the scheme participant is a State or the Northern Territory—(i)the area within the limits of that
State or Territory and includes allwaters in the
area described in Schedule 2 to the P(SL) Act thatrelates to that State or Territory that are
on the landward side of theadjacent area in
respect of that State or Territory; and(ii)if
the gas pipelines access legislation of that State or
Territoryapplies in the adjacent area in respect of
that State or Territorybecause of section 9(1) or 11(1) of
the P(SL) Act—the adjacent areain respect of
that State or Territory; and(iii)if
the gas pipelines access legislation of that State or
Territoryapplies in an external Territory in
accordance with an Act in force inthe
Commonwealth—the area within the limits of that externalTerritory and the adjacent area in respect
of that external Territory;and(c)if the scheme participant is the
Australian Capital Territory—(i)the
area within the limits of that Territory; and(ii)if
the gas pipelines access legislation of that Territory applies in
anexternal Territory in accordance with an Act
in force in theCommonwealth—the area within the limits of
that external Territoryand the adjacent area in respect of
that external Territory; and(iii)if
the gas pipelines access legislation in force in that Territory
appliesin the Jervis Bay Territory in accordance
with an Act in force in theCommonwealth—the
area within the limits of that Territory;liabilitiesmeans all
liabilities, duties and obligations, whether actual, contingent
orprospective;National Gas
Agreementmeans the Natural Gas Pipelines Access
Agreement relatingto third party access to natural gas
pipeline systems entered into by theCommonwealth,
the States of New South Wales, Victoria, Queensland, SouthAustralia, Western Australia and Tasmania
and the Australian Capital Territory andthe Northern
Territory on 7 November 1997;[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 20023
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelinesnatural gasmeans a
substance—(a)which is in a gaseous state at
standard temperature and pressure and whichconsists of
naturally occurring hydrocarbons, or a naturally occurring
mixtureof hydrocarbons and non-hydrocarbons, the
principal constituent of which ismethane;
and(b)which has been processed to be
suitable for consumption;NCCmeans the
National Competition Council established by section 29A of
theTrade Practices Act 1974of the
Commonwealth;pipelinemeans a pipe, or
system of pipes, or part of a pipe, or system of pipes, fortransporting natural gas, and any tanks,
reservoirs, machinery or equipment directlyattached to the
pipe, or system of pipes, but does not include—(a)unless paragraph (b) applies, anything
upstream of a prescribed exit flange ona pipeline
conveying natural gas from a prescribed gas processing plant;
or(b)if a connection point upstream of an
exit flange on such a pipeline isprescribed,
anything upstream of that point; or(c)a
gathering system operated as part of an upstream producing
operation; or(d)any tanks, reservoirs, machinery or
equipment used to remove or addcomponents to or
change natural gas (other than odourisation facilities) suchas a
gas processing plant; or(e)anything
downstream of the connection point to a consumer;P(SL) Actmeans thePetroleum (Submerged Lands) Act 1967of
the Commonwealth;regulationmeans a
regulation made under Part 3 of theGas Pipelines
Access (SouthAustralia) Act 1997of South
Australia;regulatory provisionmeans—(a)section 40; or(b)a
provision of the Code that, under the Code, is a regulatory
provision for thepurposes of this Law;relevant appeals
bodymeans—(a)in
relation to a decision of the Commonwealth Minister or the ACCC,
theAustralian Competition Tribunal;(b)in relation to a decision of the local
Minister, the designated appeals body;(c)in
relation to a decision of the local Regulator, the local appeals
body;relevant Minister—(a)in relation to a scheme participant,
means the local Minister within themeaning of the
gas pipelines access legislation of that scheme participant;(b)in relation to a decision under the
Code as to whether a transmission pipelinethat is, or is
to be, situated wholly within the jurisdictional area of this
schemeparticipant should be, or should cease to
be, a covered pipeline within themeaning of the
Code, means the designated Minister;4This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(c)in relation to a
decision under the Code as to whether a transmission
pipelinethat is, or is to be, situated in the
jurisdictional areas of 2 or more schemeparticipants,
should be, or should cease to be, a covered pipeline within
themeaning of the Code, means the Commonwealth
Minister;(d)in relation to a decision under the
Code as to whether a distribution pipelinethat is, or is
to be, situated wholly within the jurisdictional area of this
schemeparticipant should be, or should cease to
be, a covered pipeline within themeaning of the
Code, means the local Minister;(e)in
relation to a decision under the Code as to whether a distribution
pipelinethat is, or is to be, situated in the
jurisdictional areas of 2 or more schemeparticipants
should be, or should cease to be, a covered pipeline within
themeaning of the Code, means the local
Minister for the scheme participantwith which the
pipeline is most closely connected, as determined underPart
3;relevant Regulator—(a)in relation to a transmission
pipeline, or a matter concerning a transmissionpipeline or
service provider of a transmission pipeline, means the ACCC;(b)in relation to a distribution
pipeline, or a matter concerning a distributionpipeline or
service provider of a distribution pipeline, that is, or is to
be,situated wholly within the jurisdictional
area of this scheme participant,means the local
Regulator;(c)in relation to a distribution
pipeline, or a matter concerning a distributionpipeline or
service provider of a distribution pipeline, that is, or is to
be,situated in the jurisdictional areas of 2 or
more scheme participants, meansthe local
Regulator for the scheme participant with which the pipeline is
mostclosely connected, as determined under Part
3;rightsmeans all
rights, powers, privileges and immunities, whether actual,
contingentor prospective;scheme
participantmeans a State or Territory or the
Commonwealth if, undersection 3, it is a scheme
participant;service provider, in relation to
a pipeline or proposed pipeline, means the person whois,
or is to be, the owner or operator of the whole or any part of the
pipeline orproposed pipeline;Territorymeans the Australian Capital Territory or
the Northern Territory;transmission pipelinemeans a pipeline—(a)that
is described in the Code as a transmission pipeline and has not
beenreclassified as a distribution pipeline;
or(b)that is classified in accordance with
this Law as a transmission pipeline,and includes any
extension or expansion of such a pipeline that, under an
accessarrangement under the Code, is to be treated
as part of the pipeline.[15.9.2006] This version is not
published under theLegislation Revision and Publication Act
20025
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines3—Scheme participants(1)The
Commonwealth, each of the States of New South Wales, Victoria,
Queensland,South Australia, Western Australia and
Tasmania, the Australian Capital Territory andthe Northern
Territory are scheme participants.(2)If—(a)the legislature
of a scheme participant, other than South Australia, WesternAustralia and Tasmania—(i)does
not enact a law that substantially corresponds to Parts 1, 2,
4and 5 of the South Australian Act before the
expiration of one yearafter the enactment of that Act;
or(ii)having enacted
such a law within that period, repeals it; or(b)such
a law, having been enacted, is not in operation before the
expiration ofthat period,and the relevant
Ministers of the other scheme participants so declare in writing,
thefirst-mentioned scheme participant ceases to
be a scheme participant.(3)If—(a)Parts 1, 2, 3, 4 and 5 of the South
Australian Act are not in operation beforethe expiration
of one year after its enactment; and(b)the
relevant Ministers of the other scheme participants so declare in
writing,South Australia ceases to be a scheme
participant.(4)If—(a)the
legislature of Western Australia does not enact a law—(i)that contains provisions that
substantially correspond to Parts 1, 2, 3,4 and 5 of the
South Australian Act; and(ii)that contains
provisions that substantially correspond to theprovisions
referred to in paragraph (a) of the definition ofGasPipelines Access Lawin
section 3(1) of the South Australian Act;and(iii)that provides
for the provisions referred to in paragraph (b) of thatdefinition to apply as a law of Western
Australia; and(iv)under which
there are in force regulations that substantiallycorrespond to the regulations under Part 3
of the South AustralianAct,before the
expiration of one year after the enactment of that Act; or(b)the legislature of Western Australia,
having enacted such a law within thatperiod, repeals
it; or(c)such a law, having been enacted, is
not in operation before the expiration ofthat
period,and the relevant Ministers of the other
scheme participants so declare in writing,Western
Australia ceases to be a scheme participant.6This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(5)If—(a)the relevant Ministers of the scheme
participants, other than Tasmania, are ofthe opinion
that, in accordance with the National Gas Agreement, Tasmania
isrequired to seek the enactment by its
legislature of a law that corresponds toParts 1, 2, 4
and 5 of the South Australian Act; and(b)those relevant Ministers give notice
accordingly to the relevant Minister ofTasmania;
and(c)any of the following circumstances
occur—(i)the legislature of Tasmania does not
enact a law that substantiallycorresponds to
Parts 1, 2, 4 and 5 of the South Australian Act beforethe
expiration of 6 months after the giving of the notice; or(ii)the legislature
of Tasmania, having enacted such a law within thatperiod, repeals it; or(iii)such
a law, having been enacted, is not in operation within thatperiod,and the relevant
Ministers of the other scheme participants so declare inwriting, Tasmania ceases to be a scheme
participant.(6)If the Commonwealth or a State or
Territory ceases to be a scheme participant, theCommonwealth, State or Territory becomes a
scheme participant again if—(a)it
is a party to the National Gas Agreement; and(b)there is in force a law of the Commonwealth,
State or Territory of a kind that,if not enacted
and in operation, would cause the Commonwealth, State orTerritory to cease to be a scheme
participant on a declaration under thissection.(7)If the Commonwealth or a State or
Territory becomes a scheme participant undersubsection (6),
the Commonwealth, State or Territory ceases to be a schemeparticipant if—(a)there ceases to be in force a law of the
Commonwealth, State or Territory ofthe kind
referred to in paragraph (b) of that subsection; and(b)the relevant Ministers of the other
scheme participants so declare in writing.(8)If,
at any time, all scheme participants agree that the Commonwealth or
a specifiedState or Territory will cease to be a scheme
participant on a specified date, theCommonwealth,
State or Territory ceases to be a scheme participant on that
date.(9)A notice must be published in the
South Australian Government Gazette of the date onwhich the Commonwealth or a State or
Territory becomes, or ceases to be, a schemeparticipant
under subsection (2), (3), (4), (5), (6), (7) or (8).[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
20027
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(10)If the
legislature of the Commonwealth or a State or Territory enacts a
law while it is ascheme participant that, in the unanimous
opinion of the relevant Ministers of theother scheme
participants, is inconsistent with this Law, those other
schemeparticipants may give notice to the relevant
Minister of the Commonwealth, State orTerritory to the
effect that, if the inconsistent law remains in force as an
inconsistentlaw for more than 6 months after the notice
is given, the other scheme participantsmay declare that
the Commonwealth, State or Territory has ceased to be a
schemeparticipant.(11)The
Commonwealth or a State or Territory ceases to be a scheme
participant uponpublication in the South Australian
Government Gazette of a declaration made by theMinisters of the
other scheme participants in accordance with subsection
(10).(12)In this
section—South Australian Actmeans theGas
Pipelines Access (South Australia) Act 1997ofSouth Australia.4—Interpretation
generallyThe Appendix to this Schedule contains
miscellaneous provisions relating to theinterpretation
of this Law.Part 2—National Third Party Access Code for
Natural GasPipeline Systems5—The CodeA
provision of the Code that is inconsistent with a provision of this
Law (other thanthe Code) or of an Act of the legislature is
of no effect to the extent of theinconsistency.6—Amendment of
Code(1)If the relevant Ministers of the
scheme participants have received advice inaccordance with
any relevant provisions of the Code relating to amendment of
theCode, the relevant Ministers may, by
agreement in accordance with this Law, amendthe Code to make
provision for or with respect to any matter relevant to the
subjectmatter of the Code as set out in Schedule 2
to theGas Pipelines Access (SouthAustralia) Act 1997of South
Australia, as enacted.(2)An agreement
under subsection (1) must be made by all the relevant Ministers
unlesssubsection (3) applies.(3)An
agreement under subsection (1) may be made by two-thirds of the
relevantMinisters if it relates only to an amendment
that—(a)is not an amendment of a core
provision within the meaning of the Code; and(b)does
not extend the application of section 38; and(c)does
not insert a provision in the Code dealing with a matter not dealt
with inthe Code as in force immediately before the
amendment is made.8This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(4)An agreement
under subsection (1) is of no effect to the extent that it amends,
orpurports to amend, or makes, or purports to
make, provision inconsistent with, aprovision of the
Code that specifies—(a)the matters
about which the NCC must be satisfied in making arecommendation under the Code as to whether
a pipeline should be, or shouldcease to be, a
covered pipeline within the meaning of the Code; or(b)the matters about which the relevant
Minister must be satisfied in decidingunder the Code
whether a pipeline should be, or should cease to be, a
coveredpipeline within the meaning of the
Code.(5)The relevant Ministers must ensure
that—(a)a copy of each agreement made under
this section is published in the SouthAustralian
Government Gazette; and(b)a notice of the
making of each such agreement is published in a dailynewspaper circulating generally in
Australia.(6)An amendment of the Code under this
section has effect on and from the day on whichthe copy of the
agreement for the amendment is published in the South
AustralianGovernment Gazette or, if the agreement
provides that the amendment comes intooperation on a
later day, on and from that later day.(7)All
conditions and preliminary steps required for the making of an
amendment of theCode are to be presumed to have been
satisfied and performed, in the absence ofevidence to the
contrary.7—Availability of copies of amended
CodeIf the Code has been amended in accordance
with section 6, the Code Registrar—(a)must
make a copy of the Code, as so amended, available for inspection
duringordinary working hours on business days at
such place or places as areprescribed by
the regulations; and(b)must ensure that
copies of the Code, as so amended, are available forpurchase.8—EvidenceA
document purporting to be a copy of the Code as amended in
accordance withsection 6 and endorsed with a certificate of
the Code Registrar certifying that thedocument is such
a copy is evidence that the document is such a copy.Part
3—Pipelines9—Definitions(1)In
this Part—authorised applicant, in relation to
a pipeline, means—(a)a service provider of the
pipeline;(b)the ACCC;(c)the
NCC;[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
20029
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(d)a person who is a local Regulator
within the meaning of the gas pipelinesaccess
legislation of a scheme participant;classificationincludes
re-classification;classification criteria, in relation to
a pipeline, means the criteria referred to insubsection
(2);determinationincludes
re-determination;determination criteria, in relation to
a pipeline and a scheme participant, means thecriteria
referred to in subsection (3);pipelineincludes proposed pipeline.(2)The classification criteria, in
relation to a pipeline, are—(a)whether the primary function of the pipeline
is—(i)to convey natural gas to a market
(which is the primary function of atransmission
pipeline); or(ii)to reticulate
natural gas within a market (which is the primaryfunction of a distribution pipeline);(b)whether the characteristics of the
pipeline are those of a transmission pipelineor a
distribution pipeline having regard to the characteristics
andclassification of the pipelines specified in
the Code as transmission pipelinesor distribution
pipelines and to—(i)the diameter of the pipeline;(ii)the pressure at
which it is designed to operate;(iii)the
number of points at which gas can be fed into it;(iv)the extent of
the area served or to be served by it;(v)its
linear or dendritic configuration.(3)The
determination criteria, in relation to a pipeline and a scheme
participant, are—(a)whether more gas is to be delivered by
the pipeline in the jurisdictional areaof that scheme
participant than in the jurisdictional area of any other
schemeparticipant;(b)whether more customers to be served by the
pipeline are resident in thejurisdictional
area of that scheme participant than in the jurisdictional area
ofany other scheme participant;(c)whether more of the network for the
pipeline is in the jurisdictional area ofthat scheme
participant than in the jurisdictional area of any other
schemeparticipant;(d)whether that scheme participant has greater
prospects for growth in the gasmarket served by
the pipeline than any other scheme participant;(e)whether the regional economic benefits from
competition are likely to begreater for that
scheme participant than for other scheme participants.10This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 110—Application for classification and
determination of close connection forpurposes of
coverage under Code(1)An authorised applicant may apply
under this section—(a)for the classification of a pipeline
as a transmission pipeline or a distributionpipeline;
and(b)if the pipeline is, or is to be,
situated in the jurisdictional area of 2 or morescheme participants and is classified as a
result of the application as adistribution
pipeline, for the determination of the scheme participant
withwhich the pipeline is most closely
connected.(2)If a distribution pipeline is, or is
to be, extended so that it becomes, or will become, across-boundary pipeline, an authorised
applicant may apply under this section for adetermination of
the scheme participant with which the pipeline is most
closelyconnected.(3)An
application under subsection (1) or (2) must be made in the form
approved by theCode Registrar—(a)to
the relevant Minister of a scheme participant in the jurisdictional
area ofwhich any part of the pipeline is or is to
be situated; or(b)to the Commonwealth Minister.(4)A Minister referred to in subsection
(3) to whom the application is made mustforthwith give
notice of the application—(a)to each other
Minister to whom the application could have been made; and(b)to the Code Registrar.(5)The Ministers to whom the application
is made or notified must, as soon as possible—(a)in
the case of an application under subsection (1)—(i)classify the pipeline, having regard
to the classification criteria, as atransmission
pipeline or a distribution pipeline; and(ii)if
the pipeline is, or is to be, situated in the jurisdictional areas
of 2 ormore scheme participants, and is classified
as a distribution pipeline,determine the
scheme participant with which the pipeline is mostclosely connected, having regard to the
determination criteria andsuch other matters as the Ministers
consider relevant; or(b)in the case of
an application under subsection (2), determine the schemeparticipant with which the pipeline is most
closely connected, having regardto the
determination criteria and such other matters as the Ministers
considerrelevant,but, if the
Ministers are unable to agree within a reasonable time on the
classificationor determination, they must notify the Code
Registrar accordingly.(6)If the Ministers
agree on a classification and, if applicable, determination, they
mustcause the Code Registrar and the relevant
Ministers of all other scheme participants tobe notified of
the decision.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200211
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(7)The relevant Minister of a scheme
participant may, within 14 days after receivingnotification
under subsection (6), object to the classification or determination
bywriting given to the Code Registrar.(8)If the Code Registrar receives no
objection within the period referred to insubsection (7),
the Code Registrar—(a)must record the classification of the
pipeline in accordance with theagreement under
subsection (6); and(b)must record the determination (if any)
under that subsection; and(c)must notify the
NCC accordingly.11—Classification when Ministers do not
agree(1)If the Code Registrar—(a)is not notified within 42 days after
receiving notice of an application undersection
10(1)—(i)that a pipeline has been classified by
the Ministers as a transmissionpipeline or a
distribution pipeline; and(ii)if it is
classified as a distribution pipeline and is, or is to be,
situatedin the jurisdictional areas of 2 or more
scheme participants, that thescheme
participant with which it is most closely connected has beendetermined; or(b)receives an objection under section
10(7),the Code Registrar must notify the NCC that
the classification or determination hasnot been made or
that an objection has been received.(2)The
NCC must, within 14 days after receiving a notification under
subsection (1), giveto the Commonwealth Minister, the
relevant Ministers of the scheme participants andthe
Code Registrar—(a)its recommendation as to the
classification of the pipeline (having regard tothe
classification criteria); and(b)if
the pipeline is classified as a distribution pipeline and is, or is
to be, situatedin the jurisdictional areas of 2 or more
scheme participants, its determination(having regard
to the determination criteria) as to the scheme participant
withwhich the pipeline is most closely
connected.(3)Unless the Commonwealth Minister and
the relevant Ministers unanimously agreewithin 14 days
after receiving the recommendation to classify and, in the case of
adistribution pipeline that is, or is to be,
situated in the jurisdictional areas of 2 or morescheme participants, make a determination in
respect of, the pipeline otherwise than inaccordance with
the recommendation of the NCC—(a)the
pipeline is classified in accordance with the NCC's recommendation;
and(b)if the pipeline is classified as a
distribution pipeline and is, or is to be, situatedin
the jurisdictional areas of 2 or more scheme participants, the
schemeparticipant with which the pipeline is most
closely connected is the schemeparticipant
determined by the NCC.12This version is
not published under theLegislation Revision and Publication
Act 2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(4)If the Ministers
classify, or make a determination in respect of, a pipeline
undersubsection (3), they must cause the Code
Registrar to be notified of the decision.12—Code Registrar
to record classification etcThe Code
Registrar—(a)must record the classification of the
pipeline in accordance with the decisionor
recommendation, as the case requires, under section 11; and(b)if the pipeline is classified as a
distribution pipeline and is a cross-boundarypipeline, must
record the scheme participant with which the pipeline is
mostclosely connected in accordance with the
decision or recommendation, as thecase requires,
under section 11; and(c)must notify the
NCC accordingly.13—Preventing or hindering access1(1)A service
provider or a person who is a party to an agreement with a service
providerrelating to a service provided by means of a
Code pipeline or, as the result of anarbitration, is
entitled to such a service or an associate of a service provider or
such aperson must not engage in conduct for the
purpose of preventing or hindering theaccess of
another person to a service provided by means of the Code
pipeline.(2)For the purposes of subsection (1), a
person is deemed to engage in conduct for aparticular
purpose if—(a)the conduct is or was engaged in for
that purpose or for a purpose thatincludes, or
included, that purpose; and(b)that
purpose is or was a substantial purpose.(3)A
person may be taken to have engaged in conduct for the purpose
referred to insubsection (1) even though, after all the
evidence has been considered, the existence ofthat purpose is
ascertainable only by inference from the conduct of the person or
ofany other person or from other relevant
circumstances.(4)Subsection (3) does not limit the
manner in which the purpose of a person may beestablished for
the purpose of subsection (1).(5)In
this section—(a)a reference to engaging in conduct is
a reference to doing or refusing to doany act,
including refusing to supply a service or, without reasonable
grounds,limiting or disrupting a service, or making,
or giving effect to, a provision of,a contract or
arrangement, arriving at, or giving effect to, a provision of,
anunderstanding or requiring the giving of, or
giving, a covenant;(b)a reference to refusing to do an act
includes a reference to—(i)refraining
(otherwise than inadvertently) from doing that act; or(ii)making it known
that that act will not be done.(6)Subsection (1) does not apply to conduct
engaged in in accordance with an agreement,if the agreement
was in force on 30 March 1995.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200213
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(7)In this section—associate, in
relation to a person, has the meaning it would have under Division
2 ofPart 1.2 of theCorporations Act
2001of the Commonwealth if sections 13, 14,
16(2)and 17 of that Act were repealed.Note—1Examples of conduct which may be prohibited
if the requisite purpose is establishedinclude—(a)refusing to supply, or limiting or
disrupting the supply of, a service to a user orprospective user for technical or safety
reasons without reasonable grounds;(b)refusing to sell a marketable parcel (within
the meaning of the Code) onreasonable terms
and conditions.Part 3A—Greenfields pipeline
incentivesDivision 1—Preliminary13A—Definitions(1)In
this Part—Australia's adjacent areasmeans areas that are identified in section
5A of thePetroleum (Submerged Lands) Act 1967of
the Commonwealth as adjacent to States,Territories and
other parts of Australia;binding no-coverage
determinationmeans a determination under Division
2;commission—a pipeline is
commissioned when the pipeline is first used for thehaulage of natural gas, on a commercial
basis, between a supplier and a user;excluded
infrastructurein relation to a pipeline means tanks,
reservoirs, machinery,equipment or other infrastructure that
forms part of the pipeline but is classified byregulation as
excluded infrastructure for the purposes of this Part;foreign source—see definition
ofinternational pipeline;greenfields pipeline incentivemeans—(a)a
binding no-coverage determination; or(b)a
price regulation exemption;greenfields
pipeline projectmeans a project for the construction of a
pipeline that is tobe—(a)structurally
separate from any existing pipeline (whether or not it is totraverse a route different from the route of
an existing pipeline); or(b)a major
extension of an existing pipeline that is not a covered pipeline;
or(c)a major extension of a covered
pipeline to which the access arrangement forthe covered
pipeline will not apply;international pipelinemeans a pipeline for the haulage of gas from
a source beyondthe outer limits of Australia's adjacent
areas (theforeign source) to
Australia;14This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1limited access arrangementmeans an access arrangement without
provision for priceor revenue regulation but (subject to any
exclusion or modification made byregulation)
dealing with all other matters for which the Code requires
provision to bemade in an access arrangement;national gas objective—see section
13B;pipelinemeans a pipeline
(as defined in Part 1)—(a)that is an
international pipeline; or(b)that is
classified under this Law as a transmission pipeline or a
distributionpipeline;pipeline
coverage criteria—see section 13C;pipeline
descriptionfor a pipeline means the description of the
pipeline—(a)as given in the application for a
greenfields pipeline incentive for thepipeline;
or(b)if that description has been amended
under Division 4—the description asamended;price or revenue regulationmeans regulation of—(a)the
prices at which services are to be provided; or(b)the
revenue to be derived from the provision of services,(but
does not include the provision against price discrimination that is
to be includedin a limited access arrangement under
section 13U);price regulation exemptionmeans an exemption under Division 3;relevant Ministermeans—(a)in relation to an international
pipeline—the Commonwealth Minister;(b)in
relation to a pipeline (other than an international pipeline)
classified as atransmission or a distribution pipeline—the
Minister to whom responsibilityis assigned
under this Law for deciding whether the pipeline should be,
orshould cease to be, a covered
pipeline;servicesmeans services
provided (or to be provided) by means of a pipeline.(2)An international pipeline is, for the
purposes of this Law, a transmission pipeline.(3)Words and expressions used in the Code have,
unless the contrary intention appears,the same
respective meanings in this Part.13B—National gas
objective(1)The national gas objective is to
promote efficient investment in, and efficientoperation and
use of, natural gas services for the long term interests of
consumers ofnatural gas with respect to price, quality,
safety, reliability and security of supply ofnatural
gas.(2)The above legislative statement of the
national gas objective is for the purposes (andonly for the
purposes) of this Part and no general intention to reform the
objectives orpurposes of this Law is to be inferred from
it.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200215
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines13C—Pipeline coverage criteriaFor
the purposes of this Part, the pipeline coverage criteria are as
follows:(a)that access (or increased access) to
services to be provided by means of thepipeline would
promote a material increase in competition in at least onemarket (whether or not in Australia), other
than the market for services to beprovided by
means of the pipeline;(b)that it would be
uneconomic for anyone to develop another pipeline toprovide the services to be provided by means
of the pipeline;(c)that access (or increased access) to
the services to be provided by means ofthe pipeline
could be provided without undue risk to human health or
safety;(d)that access (or increased access) to
the services to be provided by means ofthe pipeline
would not be contrary to the public interest.Division
2—Binding no-coverage determinationsSubdivision
1—Application13D—Application for binding no-coverage
determinations for proposedpipelines(1)If a
greenfields pipeline project is proposed, or has commenced, the
service providermay, before the pipeline is commissioned,
apply for a determination (abindingno-coverage determination)
exempting the pipeline from coverage.(2)If a
price regulation exemption has been granted for an international
pipeline, anapplication for a binding no-coverage
determination for the pipeline may be made bythe service
provider—(a)before the pipeline is commissioned;
or(b)after the pipeline is commissioned but
before the term of the price regulationexemption comes
to an end.(3)An application for a binding
no-coverage determination is to be made to the NCC.(4)An application for a binding
no-coverage determination must—(a)include a description of the pipeline
(thepipeline description); and(b)specify whether the pipeline
is—(i)an international pipeline; or(ii)a transmission
pipeline (other than an international pipeline); or(iii)a distribution
pipeline; and(c)contain any information, or be
accompanied by any document, that is requiredby
regulation.(5)The pipeline description—(a)must contain the details required
under the regulations; but(b)need not
describe, or include details of, excluded infrastructure.16This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 113E—Notification of relevant MinisterWhen
the NCC receives an application for a binding no-coverage
determination, itmust, without delay, notify the relevant
Minister of receipt of the application.Subdivision
2—Investigation and recommendation by NCC13F—General
principles governing NCC's recommendations on applicationsfor
binding no-coverage determinations(1)In
framing a draft or final recommendation on an application for a
binding no-coverage determination, the NCC—(a)must give effect to the pipeline
coverage criteria; and(b)in deciding
whether or not the pipeline coverage criteria are satisfied—(i)must have regard to the national gas
objective; and(ii)must have regard
to relevant submissions and comments made inresponse to an
invitation under this Subdivision within the timeallowed for submissions and comments.(2)The NCC gives effect to the pipeline
coverage criteria as follows:(a)if
the NCC is satisfied that all the pipeline coverage criteria are
satisfied inrelation to the pipeline—the recommendation
must be against making abinding no-coverage
determination;(b)if the NCC is not satisfied that all
the pipeline coverage criteria are satisfiedin relation to
the pipeline—the recommendation must be in favour of makinga
binding no-coverage determination.13G—Notice of
application(1)The NCC must, within 14 days after
receiving an application for a binding no-coverage
determination, publish a notice on its website and in a newspaper
circulatinggenerally throughout Australia.(2)The notice must—(a)notify receipt of the application;
and(b)include—(i)a
short description of the pipeline accompanied by a reference to
awebsite at which the relevant pipeline
description can be inspected;and(ii)any further
information required by regulation; and(c)invite submissions and comments within 21
days from the date of the notice.(3)The
NCC is not obliged to give notice of an application under this
section if, within14 days after receiving the application, the
NCC rejects the application on theground—(a)that the applicant has failed to
provide the information and materials requiredunder this Part;
or(b)that the application is frivolous or
vexatious.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200217
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(4)A decision under subsection (3) to
reject an application must—(a)be
in writing; and(b)set out the reasons for the decision;
and(c)be given to the applicant without
delay.13H—Draft recommendation(1)The
NCC must prepare a draft recommendation within 42 days after giving
noticeunder section 13G(1).(2)The
draft recommendation must—(a)be in writing;
and(b)contain a short description of the
pipeline accompanied by a reference to awebsite at which
the relevant pipeline description can be inspected; and(c)state the terms of the proposed
recommendation and the reasons for it; and(d)contain any other information that is
required by regulation.13I—Publication of draft
recommendation and invitation to make submissionsand
comments(1)The NCC must, without delay—(a)give copies of the draft
recommendation to—(i)the applicant; and(ii)the
AEMC; and(iii)the relevant
Regulator; and(b)publish the draft recommendation on
the NCC's website; and(c)make the draft
recommendation available for inspection during businesshours at the offices of the NCC.(2)The NCC must publish, on its website
and in a newspaper circulating throughoutAustralia,
notice of the draft recommendation inviting written submissions
andcomments on the draft recommendation within
14 days after publication of the notice.13J—Consideration
of submissions and comments and making of finalrecommendation(1)The
NCC must, within 28 days after the end of the period allowed for
makingsubmissions and comments on the draft
recommendation, consider all submissions andcomments made
within the time allowed and make its final recommendation.(2)The final recommendation must—(a)be in writing; and(b)contain a short description of the pipeline
accompanied by a reference to awebsite at which
the relevant pipeline description can be inspected; and(c)state the terms of the final
recommendation and the reasons for it; and(d)contain any other information that is
required by regulation.18This version is
not published under theLegislation Revision and Publication
Act 2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(3)The NCC must,
without delay—(a)deliver the final recommendation to
the relevant Minister; and(b)give copies of
the final recommendation to—(i)the
applicant; and(ii)the AEMC;
and(iii)the relevant
Regulator; and(c)publish the final recommendation on
the NCC's website; and(d)make the final
recommendation available for inspection during business
hoursat the offices of the NCC.Subdivision 3—Ministerial determination of
application13K—Minister's decision on
application(1)The relevant Minister must, within 42
days of receiving the NCC's recommendation,decide whether
or not to make a binding no-coverage determination.(2)In deciding whether to make a binding
no-coverage determination, the relevantMinister—(a)must give effect to the pipeline
coverage criteria; and(b)in deciding
whether or not the pipeline coverage criteria are satisfied
inrelation to the pipeline—(i)must have regard to the national gas
objective; and(ii)must have regard
to (but is not bound by) the NCC'srecommendation;
and(iii)may take into
account any relevant submissions and comments madeto
the NCC under Subdivision 2.(3)The
relevant Minister gives effect to the pipeline coverage criteria as
follows:(a)if the Minister is satisfied that all
the pipeline coverage criteria are satisfied inrelation to the
pipeline—the Minister must not make a binding no-coveragedetermination;(b)if
the Minister is not satisfied that all the pipeline coverage
criteria aresatisfied in relation to the pipeline—the
Minister must make a bindingno-coverage
determination.(4)A binding no-coverage determination,
or a decision not to make a bindingno-coverage
determination, must—(a)be in writing;
and(b)contain a short description of the
pipeline the subject of the determination,accompanied by a
reference to a website at which the relevant pipelinedescription can be inspected; and(c)set out the relevant Minister's
reasons for the determination or decision.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200219
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines13L—Effect of determination(1)A binding no-coverage determination
takes effect when made and remains in force fora period of 15
years from the commissioning of the pipeline.(2)An
application for coverage of a pipeline to which a binding
no-coveragedetermination applies can only be made
before the end of the period for which thedetermination
remains in force if the coverage sought in the application is
tocommence from, or after, the end of that
period.13M—Consequences of Minister deciding
against making binding no-coveragedetermination for
international pipeline(1)If—(a)the Commonwealth Minister decides
against making a binding no-coveragedetermination
for an international pipeline; and(b)the
applicant asks the Commonwealth Minister to treat the application
as anapplication for a price regulation
exemption,the Commonwealth Minister may treat the
application as an application for a priceregulation
exemption under Division 3.(2)If
the Commonwealth Minister decides to treat an application for a
bindingno-coverage determination as an application
for a price regulation exemption, theCommonwealth
Minister may—(a)refer the application back to the NCC
for a recommendation; or(b)proceed to
determine the application without a further recommendation
fromthe NCC.Division 3—Price
regulation exemptionsSubdivision 1—Application for price
regulation exemption13N—Application for price regulation
exemption(1)If a greenfields pipeline project for
construction of an international pipeline isproposed, or has
commenced, the service provider may, before the pipeline iscommissioned, apply for a price regulation
exemption for the pipeline.(2)The
application is to be made to the NCC.(3)An
application for a price regulation exemption must—(a)include a description of the
international pipeline (thepipeline
description);and(b)contain any information, or be accompanied
by any document, that is requiredby
regulation.(4)The pipeline description—(a)must contain the details required
under the regulations; but(b)need not
describe, or include details of, excluded infrastructure.20This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 113O—Notification of Commonwealth
MinisterWhen the NCC receives an application for a
price regulation exemption, it must,without delay,
notify the Commonwealth Minister of receipt of the
application.Subdivision 2—Investigation and
recommendation by NCC13P—General principle governing NCC's
recommendation(1)In framing its recommendation on an
application for a price regulation exemption, theNCC
must weigh the benefits to the public of granting the exemption
against thedetriments to the public.(2)In doing so, the NCC—(a)must have regard to the national gas
objective with particular reference to—(i)the
implications of the exemption for relevant markets (including
theeffect on market power); and(ii)other possible
effects on the public interest; and(b)may
have regard to any other relevant matter.13Q—Invitation of
submissions and comments(1)The NCC must
publish a notice on its website and in a newspaper
circulatinggenerally throughout Australia.(2)The notice must—(a)notify receipt of the application;
and(b)include—(i)a
short description of the pipeline accompanied by a reference to
awebsite at which the relevant pipeline
description can be inspected;and(ii)any further
information required by regulation; and(c)invite submissions and comments within a
specified period from the the dateof the
notice.(3)The NCC is not obliged to give notice
of an application under this section if the NCCrejects the
application on the ground—(a)that the
applicant has failed to provide the information and materials
requiredunder this Part; or(b)that
the application is frivolous or vexatious.(4)A
decision under subsection (3) to reject an application must—(a)be in writing; and(b)set
out the reasons for the decision; and(c)be
given to the applicant without delay.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200221
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines13R—NCC's duty to make recommendation within
42 days(1)The NCC must within 42 days after
receipt of an application for a price regulationexemption make a recommendation to the
Commonwealth Minister on the application.(2)As
soon as practicable after delivering the recommendation to the
CommonwealthMinister, the NCC must—(a)give
copies of the recommendation to—(i)the
applicant; and(ii)the AEMC;
and(iii)the ACCC;
and(b)publish the recommendation on the
NCC's website; and(c)make the recommendation available for
inspection during business hours atthe offices of
the NCC.Subdivision 3—Making and effect of price
regulation exemption13S—Making of price regulation
exemption(1)The Commonwealth Minister must, within
14 days after receiving the NCC'srecommendation,
decide whether or not to make a price regulation exemption.(2)In deciding whether to make a price
regulation exemption, the CommonwealthMinister must
weigh the benefits to the public of granting the exemption against
thedetriments to the public.(3)In doing so, the Commonwealth
Minister—(a)must have regard to the national gas
objective with particular reference to—(i)the
implications of the exemption for relevant markets (including
theeffect on market power); and(ii)other possible
effects of the exemption on the public interest; and(b)must have regard to (but is not bound
by) the NCC's recommendation; and(c)may
take into account any relevant submissions and comments made to
theNCC under Subdivision 2; and(d)may have regard to any other relevant
matter.(4)A price regulation exemption, or a
decision not to make a price regulation exemption,must—(a)be
in writing; and(b)include a short description of the
pipeline the subject of the determinationaccompanied by a
reference to a website at which the relevant pipelinedescription may be inspected; and(c)set out the Commonwealth Minister's
reasons for the decision to grant, or notto grant, the
exemption.22This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 113T—Effect of price regulation
exemption(1)If a price regulation exemption is
granted, then for a period of 15 years from thecommissioning of
the pipeline, the services provided by means of the pipeline are
notsubject to price or revenue regulation under
this Law.(2)A price regulation exemption is,
however, ineffective unless a limited accessarrangement,
approved by the ACCC, is in force in relation to the relevant
pipeline.(3)If, while a price regulation exemption
remains in force, the Commonwealth Ministermakes a binding
no-coverage determination for the pipeline, the binding
no-coveragedetermination supersedes the price
regulation exemption (which is then terminated)and remains in
force for the balance of the period for which the exemption
wasgranted.(4)An
application for coverage of a pipeline to which a price regulation
exemptionapplies can only be made before the end of
the period of exemption if the coveragesought in the
application is to commence from, or after, the end of that
period.13U—Limited access arrangement(1)The service provider—(a)must, within 90 days after the grant
of a price regulation exemption, submit aproposed limited
access arrangement to the ACCC for approval; and(b)may, at any time after the approval of
a limited access arrangement, submit aproposed
amendment to the limited access arrangement for approval.(2)When the ACCC receives a proposed
limited access arrangement, or a proposedamendment to a
limited access arrangement, for approval, the ACCC must proceed
asfollows:(a)the
ACCC must publish the proposed limited access arrangement, or
theproposed amendment, on its website together
with an invitation to the publicto make
submissions and comments on the proposal within 21 days after
thedate of the invitation; and(b)the ACCC must consider the submissions
and comments made in response tothe invitation
within the time allowed and publish on its website a draftdecision on the proposal together with a
further invitation to the public tomake submissions
and comments on the draft decision within 14 days fromthe
date of the invitation; and(c)the
ACCC must then make a final decision on the proposal and may in
itsfinal decision—(i)in
the case of a proposed limited access arrangement—approve
thelimited access arrangement with or without
amendment;(ii)in the case of a
proposed amendment to a limited accessarrangement—amend the limited access
arrangement in accordancewith the proposed amendment or in some
other way acceptable to theservice
provider, or reject the proposed amendment; and(d)the
ACCC must then publish its final decision, and the reasons for it,
on itswebsite.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200223
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(3)Subsections (1) and (2) operate to the
exclusion of the provisions and procedures ofthe Code for the
approval, amendment and review of access arrangements
(exceptsections 2.24 and 2.25 of the Code).(4)A limited access arrangement is to
contain no provision for price or revenueregulation.(5)A
limited access arrangement must, however, contain an undertaking,
on the part ofthe service provider, not to engage in price
discrimination unless the pricediscrimination—(a)is
conducive to efficient service provision; or(b)can
be justified on some other rational economic basis.(6)Subject to subsection (7), a dispute
about access to a pipeline to which a priceregulation
exemption applies may be dealt with under this Law in the same way
as adispute about access to a covered
pipeline.(7)An access dispute cannot, however, be
resolved by arbitration on terms—(a)regulating the price at which services are
to be provided by the serviceprovider (except
to the extent that such regulation is necessary to give
effectto the undertaking against price
discrimination referred to in subsection (5));or(b)limiting the revenue to be derived by
the service provider from the provisionof
services.13V—Other obligations to which service
provider is subject(1)The service provider for a pipeline to
which a price regulation exemption applies issubject to the
following provisions as if the pipeline were a covered
pipeline:(a)Section 13 (Preventing or hindering
access);(b)Part 4 of the Code (Ring fencing
arrangements);(c)Part 5 of the Code (Information and
timelines for negotiation);(d)Sections 7.1 to 7.6 of the Code (Approval
required for associate contracts).(2)A
price regulation exemption is subject to the following
conditions:(a)the service provider must not engage
in price discrimination contrary to theundertaking
contained in the service provider's limited access
arrangement;and(b)the service
provider must maintain a register of Spare Capacity; and(c)the service provider's limited access
arrangement and the register of SpareCapacity are to
be accessible on the service provider's website; and(d)the service provider—(i)must, as and when required by the ACCC
or the CommonwealthMinister, provide information requested by
the ACCC or theCommonwealth Minister (in a manner and form
determined orapproved by the ACCC or the Commonwealth
Minister) on accessnegotiations and the result of access
negotiations; and24This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(ii)must report
annually to the ACCC and the Commonwealth Minister(in
a manner and form approved by the ACCC or the CommonwealthMinister) on access negotiations and the
result of access negotiations.(3)A
service provider must ensure compliance with conditions to which
the exemption issubject.Division
4—Provisions of general application to greenfields pipelineincentivesSubdivision
1—Extended or modified application of greenfields pipelineincentive13W—Requirement
for conformity between pipeline description and pipelineas
constructed(1)Subject to this Subdivision—(a)a greenfields pipeline incentive
applies to the pipeline as described in therelevant
pipeline description; and(b)if the pipeline,
as constructed, differs from the pipeline as described in
thepipeline description, the incentive does not
attach to the pipeline and theservice provider
is not entitled to its benefit.(2)In
determining whether a pipeline, as constructed, differs from the
relevant pipelinedescription, excluded infrastructure is not
to be taken into account.13X—Power of relevant Minister to
amend pipeline description(1)The relevant
Minister may, on application by the service provider for a pipeline
forwhich a greenfields pipeline incentive has
been granted, amend the relevant pipelinedescription.(2)An
amendment cannot, however, be made under this section after the
pipeline hasbeen commissioned.(3)The
relevant Minister—(a)may refer an application for amendment
to a pipeline description to the NCCfor advice;
and(b)if the amendment sought involves a
substantial change to the pipelinedescription as
it currently exists—must refer the application to the NCC
foradvice.(4)In
framing its advice to the relevant Minister, the NCC must have
regard to the criteriathat were relevant to the grant of the
greenfields pipeline incentive.(5)In
deciding whether to make the amendment sought, the relevant
Minister—(a)must have regard to the criteria that
were relevant to the grant of thegreenfields
pipeline incentive; and(b)if the
application has been referred to the NCC for advice—must
consider(but is not bound by) the NCC's
advice.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200225
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelinesSubdivision 2—Early termination of
greenfields pipeline incentive13Y—Greenfields
pipeline incentive may lapse(1)A
greenfields pipeline incentive lapses if the pipeline for which it
was granted is notcommissioned within 3 years after the
incentive was granted.(2)The regulations
may, in a particular case, extend the period of 3 years referred to
insubsection (1).13Z—Revocation by
consentThe relevant Minister may, at the request of
the service provider, revoke a greenfieldspipeline
incentive.13ZA—Revocation for misrepresentationThe
relevant Minister may, on application by the relevant Regulator,
revoke agreenfields pipeline incentive on the ground
that—(a)the applicant misrepresented a
material fact on the basis of which theapplication was
granted; or(b)the applicant failed to disclose
material information that the applicant wasrequired to
disclose under this Part.13ZB—Exhaustive provision for
termination of greenfields pipeline incentiveA greenfields
pipeline incentive does not terminate, and cannot be revoked,
before theend of its term except as provided in this
Part.Part 4—Arbitration of access disputes14—DefinitionsIn this
Part—access disputemeans a dispute
between a service provider and another person that, inaccordance with the Code, may be referred to
arbitration under this Part;arbitratormeans the
relevant Regulator or a person appointed by the relevantRegulator to conduct an arbitration relating
to an access dispute;partymeans a service
provider or other person involved in an access dispute.15—Application of Part(1)This
Part applies if—(a)in accordance with the Code, a service
provider or another person notifies therelevant
Regulator that an access dispute exists; and(b)notification of the dispute is not withdrawn
in accordance with the Code.(2)Subject to this Part, the provisions of the
Code applying to an arbitration of an accessdispute apply to
an arbitration under this Part.16—Person to
conduct arbitration(1)The relevant Regulator must conduct
the arbitration or appoint a person to do so.26This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(2)The relevant
Regulator may terminate the appointment of a person to conduct
thearbitration if—(a)the
person is convicted of an indictable offence or an offence that,
ifcommitted in the jurisdiction of this scheme
participant, would be anindictable offence; or(b)the person is an insolvent under
administration within the meaning of theCorporations Act
2001of the Commonwealth; or(c)the
relevant Regulator is satisfied that the person is mentally or
physicallyincapable of carrying out the duties of
arbitrator,and may appoint another person to conduct
the arbitration.17—Where ACCC conducts arbitration(1)For the purposes of a particular
arbitration where it is the relevant Regulator, theACCC
is to be constituted by 2 or more members of the ACCC nominated in
writingby the Chairperson of the ACCC.(2)Subject to subsection (3), the
Chairperson is to preside at an arbitration.(3)If
the Chairperson is not a member of the ACCC as constituted under
subsection (1) inrelation to a particular arbitration, the
Chairperson must nominate a member of theACCC to preside
at the arbitration.(4)If a member of the ACCC who is one of
the members who constitute the ACCC forthe purposes of
a particular arbitration—(a)stops being a
member of the ACCC; or(b)for any reason,
is not available for the purpose of the arbitration,the
Chairperson must either—(c)direct that the
ACCC is to be constituted for the purposes of finishing thearbitration by the remaining member or
members; or(d)direct that the ACCC is to be
constituted for that purpose by the remainingmember or
members together with one or more other members of the ACCC.(5)If a direction under subsection (4) is
given, the ACCC as constituted in accordancewith the
direction must continue and finish the arbitration and may, for
that purpose,have regard to any record of the proceedings
of the arbitration made by the ACCC aspreviously
constituted.(6)If the ACCC is constituted for an
arbitration by 2 or more members of the ACCC, anyquestion before the ACCC is to be
decided—(a)unless paragraph (b) applies,
according to the opinion of the majority of thosemembers; or(b)if
the members are evenly divided on a question, according to the
opinion ofthe member who is presiding.18—Hearing to be in private(1)Subject to subsection (2), an
arbitration hearing is to be in private.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200227
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(2)If the parties agree, an arbitration
hearing or part of an arbitration hearing may beconducted in public.(3)The
arbitrator may give written directions as to the persons who may be
present at anarbitration hearing that is conducted in
private.(4)In giving directions under subsection
(3), the arbitrator must have regard to the wishesof
the parties and the need for commercial confidentiality.19—Right to representationIn
an arbitration hearing under this Part, a party may appear in
person or berepresented by someone else.20—Procedure(1)In
an arbitration hearing under this Part, the arbitrator—(a)is not bound by technicalities, legal
forms or rules of evidence; and(b)must
act as speedily as a proper consideration of the dispute allows,
havingregard to the need carefully and quickly to
inquire into and investigate thedispute and all
matters affecting the merits, and fair settlement, of the
dispute;and(c)may gather
information about any matter relevant to the access dispute in
anyway the arbitrator thinks
appropriate.(2)Subject to the Code, the arbitrator
may determine the periods that are reasonablynecessary for
the fair and adequate presentation of the respective cases of the
partiesin the arbitration hearing, and may require
that the cases be presented within thoseperiods.(3)The arbitrator may require evidence or
argument to be presented in writing, and maydecide the
matters on which the arbitrator will hear oral evidence or
argument.(4)The arbitrator may determine that an
arbitration hearing is to be conducted by—(a)telephone; or(b)closed circuit television; or(c)any other means of
communication.21—Particular powers of arbitrator(1)The arbitrator may do any of the
following things for the purpose of arbitrating anaccess dispute—(a)give
a direction in the course of, or for the purpose of, an arbitration
hearing;(b)hear and determine the arbitration in
the absence of a party who has beengiven notice of
the hearing;(c)sit at any place;(d)adjourn to any time and place;(e)refer any matter to an independent
expert and accept the expert's report asevidence.(2)The arbitrator may make an interim
determination.28This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 122—Determination(1)The
arbitrator must make a determination in writing, signed by the
arbitrator, and mustinclude in the determination a
statement of reasons for making the determination.(2)If a determination of an arbitrator
under this Part contains—(a)a clerical
mistake; or(b)an error arising from an accidental
slip or omission; or(c)a material
miscalculation of figures or a material mistake in the description
ofany person, thing or matter referred to in
the determination; or(d)a defect in
form,the arbitrator may correct the determination
or the Court, on the application of a party,may make an
order correcting the determination.23—ContemptA person must
not do any act or thing in relation to the arbitration of an access
disputethat would be a contempt of court if the
arbitrator were a court of record.Maximum penalty:
Imprisonment for 6 months.24—Disclosure of information(1)An arbitrator may give an oral or
written order to a person not to divulge orcommunicate to
anyone else specified information that was given to the person in
thecourse of an arbitration unless the person
has the arbitrator's permission.(2)A
person must not contravene an order under subsection (1).Maximum penalty: Imprisonment for 6
months.25—Power to take evidence on oath or
affirmation(1)The arbitrator may take evidence on
oath or affirmation and for that purpose thearbitrator may
administer an oath or affirmation.(2)The
arbitrator may summon a person to appear before the arbitrator to
give evidenceand to produce such documents (if any) as
are referred to in the summons.(3)The
powers in this section may be exercised only for the purposes of
arbitrating anaccess dispute under this Part.26—Failing to attend as a witnessA
person who is served, as prescribed by the regulations, with a
summons to appear asa witness before the arbitrator must
not, without reasonable excuse—(a)fail
to attend as required by the summons; or(b)fail
to appear and report himself or herself from day to day unless
excused, orreleased from further attendance, by the
arbitrator.Maximum penalty: Imprisonment for 6
months.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200229
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines27—Failing to answer questions etc(1)A person appearing as a witness before
the arbitrator must not, without reasonableexcuse—(a)refuse or fail to be sworn or to make
an affirmation; or(b)refuse or fail to answer a question
that the person is required to answer by thearbitrator;
or(c)refuse or fail to produce a document
that he or she is required to produce by asummons under
this Part served on him or her as prescribed.Maximum penalty:
Imprisonment for 6 months.(2)It is a
reasonable excuse for the purposes of subsection (1) for an
individual to refuseor fail to answer a question or
produce a document on the ground that the answer orthe
production of the document might tend to incriminate the individual
or to exposethe individual to a penalty.(3)Subsection (2) does not limit what is
a reasonable excuse for the purposes ofsubsection
(1).28—Intimidation etcA person must
not—(a)threaten, intimidate or coerce another
person; or(b)cause or procure damage, loss or
disadvantage to another person,because that
other person—(c)proposes to produce, or has produced,
documents to the arbitrator; or(d)proposes to appear, or has appeared, as a
witness before the arbitrator.Maximum penalty:
Imprisonment for 12 months.29—Party may request arbitrator to
treat material as confidential(1)A
party to an arbitration hearing may—(a)inform the arbitrator that, in the party's
opinion, a specified part of adocument
contains confidential information; and(b)request the arbitrator not to give a copy of
that part to another party.(2)On
receiving a request, the arbitrator must—(a)inform the other party or parties that the
request has been made and of thegeneral nature
of the matters to which the relevant part of the documentrelates; and(b)ask
the other party or parties whether there is any objection to the
arbitratorcomplying with the request.(3)If there is an objection to the
arbitrator complying with the request, the party objectingmay
inform the arbitrator of the objection and of the reasons for
it.(4)After considering—(a)a
request; and30This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(b)any objection;
and(c)any further submissions that any party
has made in relation to the request,the arbitrator
may decide—(d)not to give the other party or parties
a copy of so much of the document ascontains
confidential information that the arbitrator thinks should not
begiven; or(e)to
give the other party or another specified party a copy of the
whole, or part,of the part of the document that contains
confidential information subject to acondition that
the party give an undertaking not to disclose the information
toanother person except to the extent
specified by the arbitrator and subject tosuch other
conditions as the arbitrator determines.30—CostsThe
costs of an arbitration, including the fees and costs of the
arbitrator, are in thediscretion of the arbitrator who
may—(a)direct to and by whom and in what
manner the whole or any part of thosecosts is to be
paid;(b)tax or settle the amount of costs to
be so paid or any part of those costs;(c)award costs to be taxed or settled as
between party and party or as betweensolicitor and
client.31—Appeal to Court(1)A
party may appeal to the Court, on a question of law, from a
determination of anarbitrator under this Part.(2)An appeal must be instituted—(a)not later than the 28th day after the
day on which the decision is made orwithin such
further period as the Court (whether before or after the end of
thatday) allows; and(b)in
accordance with the relevant Rules of Court.(3)The
Court may make an order staying or otherwise affecting the
operation orimplementation of the determination of the
arbitrator that the Court thinks appropriateto secure the
effectiveness of the hearing and determination of the
appeal.Part 5—Proceedings for breach of law32—Proceedings(1)A
person may not bring civil proceedings in respect of a matter
arising under this Lawexcept in accordance with this Part or
Part 6.(2)The relevant Regulator may, in
accordance with this Part, bring civil proceedings inrespect of a civil penalty provision or a
regulatory provision.(3)The relevant
Regulator or any other person may, in accordance with this Part,
bringcivil proceedings in respect of a conduct
provision.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200231
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(4)Nothing in subsection (1) or (2)
affects the right of a person—(a)to
bring civil proceedings in respect of any matter or thing, or seek
any reliefor remedy, if the cause of action arises, or
the relief or remedy is sought, ongrounds that do
not rely on this Law; or(b)to apply for an
order for review under theAdministrative Decisions
(JudicialReview) Act 1977of the
Commonwealth; or(c)to bring proceedings for judicial
review of a decision under this Law of thelocal appeals
body, local Minister, local Regulator or an arbitrator
appointedunder Part 4.33—Criminal
proceedings do not lie(1)Criminal
proceedings do not lie against a person by reason only that the
person—(a)has contravened a provision of this
Law; or(b)has attempted to contravene such a
provision; or(c)has aided, abetted, counselled or
procured a person to contravene such aprovision;
or(d)has induced, or attempted to induce, a
person, whether by threats or promisesor otherwise, to
contravene such a provision; or(e)has
been in any way, directly or indirectly, knowingly concerned in, or
partyto, the contravention by a person of such a
provision; or(f)has conspired with others to
contravene such a provision.(2)Subsection (1) does not apply in respect of
a provision of this Law for an offenceagainst which a
penalty is prescribed by this Law.34—Civil
penalty(1)The relevant Regulator may apply to
the Court for an order under this Part in respectof a
contravention by a person of a civil penalty provision or the doing
by a person ofany other thing mentioned in subsection
(3).(2)An application under subsection (1)
may not be made in respect of a breach of a civilpenalty provision if the breach is or has
been the subject of an application for an orderunder the gas
pipelines access legislation of another scheme participant.(3)If the Court is satisfied that a
person—(a)has contravened a civil penalty
provision; or(b)has attempted to contravene such
provision; or(c)has aided, abetted, counselled or
procured a person to contravene such aprovision;
or(d)has induced, or attempted to induce, a
person whether by threats or promisesor otherwise, to
contravene such a provision; or(e)has
been in any way, directly or indirectly, knowingly concerned in, or
partyto, the contravention by a person of such a
provision; or(f)has conspired with others to
contravene such a provision,32This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1the Court may order the person to pay
to the appropriate Minister such pecuniarypenalty, in
respect of each act or omission by the person to which this section
applies,as the Court determines to be appropriate
having regard to all relevant mattersincluding—(g)the
nature and extent of the act or omission and of any loss or
damagesuffered as a result of the act or omission;
and(h)the circumstances in which the act or
omission took place; and(i)whether the
person has previously been found by the Court in proceedingsunder this Part to have contravened a civil
penalty provision.(4)The pecuniary penalty payable under
subsection (3) must not exceed the penaltyprescribed by
the regulations for the act or omission to which this section
applies.(5)In this section—appropriate
Ministermeans—(a)in
relation to a contravention of a civil penalty provision relating
to atransmission pipeline, or the service
provider of a transmission pipeline, theCommonwealth
Minister;(b)in relation to a contravention of a
civil penalty provision relating to adistribution
pipeline, or the service provider of a distribution
pipeline,situated in the jurisdictional area of 2 or
more scheme participants, the localMinister within
the meaning of the gas pipelines access legislation of thescheme participant with which the pipeline
is most closely connected;(c)in any other
case, the local Minister.35—Injunctions(1)If,
on an application in accordance with subsection (2), the Court is
satisfied that aperson has engaged, or is proposing to
engage, in conduct that constitutes or wouldconstitute—(a)a
contravention of a regulatory provision or a conduct provision;
or(b)attempting to contravene a regulatory
provision or a conduct provision,the Court may
grant an injunction in such terms as the Court determines to
beappropriate.(2)An
application under subsection (1) may be made—(a)in
the case of a regulatory provision, or a conduct provision,
relating to atransmission pipeline or a service provider
of a transmission pipeline, by theACCC;(b)in the case of a regulatory provision,
or a conduct provision, relating to adistribution
pipeline or the service provider of a distribution pipeline, by
thelocal Regulator;(c)in
the case of any conduct provision, by any person other than the
ACCC orthe local Regulator (except as provided in
paragraphs (a) and (b)).[15.9.2006] This version is not
published under theLegislation Revision and Publication Act
200233
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(3)If an application for an injunction
under subsection (1) has been made, the Court may,if
the Court determines it to be appropriate, grant an injunction by
consent of all theparties to the proceedings, whether or not
the Court is satisfied that a person hasengaged, or is
proposing to engage, in conduct of a kind mentioned in subsection
(1).(4)If, in the opinion of the Court, it is
desirable to do so, the Court may grant an interiminjunction pending determination of an
application under subsection (1).(5)The
Court may rescind or vary an injunction granted under subsection
(1) or (3).(6)The power of the Court to grant an
injunction restraining a person from engaging inconduct may be exercised—(a)whether or not it appears to the Court
that the person intends to engage again,or to continue
to engage, in conduct of that kind; and(b)whether or not the person has previously
engaged in conduct of that kind; and(c)whether or not there is an imminent danger
of substantial damage to any otherperson if the
person engages in conduct of that kind.(7)The
power of the Court to grant an injunction requiring a person to do
an act or thingmay be exercised—(a)whether or not it appears to the Court that
the person intends to refuse or failagain, or to
continue to refuse or fail, to do that act or thing; and(b)whether or not the person has
previously refused or failed to do that act orthing;
and(c)whether or not there is an imminent
danger of substantial damage to any otherperson if the
person refuses or fails to do that act or thing.(8)If an application is made to the Court
by the relevant Regulator for the grant of aninjunction under
this section, the Court will not require the applicant or any
otherperson, as a condition of granting an
interim injunction, to give any undertakings as todamages.(9)Nothing in this section affects any other
power the Court may have to grant injunctiverelief.36—Actions for damages for contravention of
conduct provision(1)A person who suffers loss or damage by
conduct of another that was done incontravention of
a conduct provision may recover the amount of the loss or damage
byaction against that other person or against
any person involved in the contravention.(2)An
action under subsection (1) may be commenced at any time within 3
years after thedate on which the cause of action accrued
and may not be commenced after thatperiod.(3)A reference in subsection (1) to a
person involved in a contravention of a conductprovision is a
reference to a person who—(a)has aided,
abetted, counselled or procured the contravention; or(b)has induced, whether by threats or
promises or otherwise, the contravention;or34This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(c)has been in any
way, directly or indirectly, knowingly concerned in, or
partyto, the contravention; or(d)has conspired with others to effect
the contravention.37—Declaratory relief(1)The
Court, on an application under subsection (2), will, by order,
declare whether ornot the person to which the application
relates has contravened a regulatory provisionor conduct
provision.(2)An application under subsection (1)
may be made—(a)in the case of a regulatory provision,
or a conduct provision, relating to atransmission
pipeline or a service provider of a transmission pipeline, by
theACCC;(b)in
the case of a regulatory provision, or a conduct provision,
relating to adistribution pipeline or a service provider
of a distribution pipeline, by thelocal
Regulator;(c)in the case of any conduct provision,
by any person other than the ACCC orthe local
Regulator (except as provided in paragraphs (a) and (b)).(3)If the order declares the person to
have contravened a regulatory provision or conductprovision, the order may include one or more
of the following:(a)a requirement that the person cease,
within a specified period, the act, activityor practice
constituting the contravention;(b)a
requirement that the person take such action, or adopt such
practice, as theCourt requires for remedying the
contravention or preventing a recurrence ofthe
contravention.Part 6—Administrative appeals38—Application for review(1)A person adversely affected by a
decision to which this section applies may apply tothe
relevant appeals body, in accordance with this Part and any
applicable lawgoverning the practice and procedure of that
body, for a review of the decision.(2)The
time for making an application under this section for a review of a
decisionexpires 14 days after the decision is placed
on the public register kept by the CodeRegistrar under
the Code.(3)The relevant appeals body must make
its determination on the review within 90 daysafter receiving
the application for review.(4)The
relevant appeals body may extend, or further extend, the period
referred to insubsection (3) by a period of 30 days if it
considers that the matter cannot be dealtwith properly
without the extension either because of its complexity or because
ofother special circumstances.(5)If the relevant appeals body extends
the period, it must, before the end of the period,notify the applicant of the extension and
the reasons for it.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200235
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(6)An application under this
section—(a)that relates to a decision under
subsection (13)(c) or section 39(1) or (1a) doesnot
operate to stay the decision;(b)in
any other case, operates to stay the decision unless, in the case
of adecision under subsection (13)(b) or (d),
the relevant appeals body otherwisedetermines.(7)On
the application of a party to the proceedings under this section,
the relevantappeals body may conduct the proceedings in
the absence of the public.(8)The relevant
appeals body may require the relevant Regulator to give information
andother assistance, and to make reports, as
specified by the appeals body.(9)In
proceedings under this section, the relevant appeals body may make
an orderaffirming, or setting aside or varying
immediately or as from a specified future date,the decision
under review and, for the purposes of the review, may exercise the
samepowers with respect to the subject matter of
the decision as may be exercised withrespect to that
subject matter by the person who made the decision.(10)The relevant
appeals body may make such orders (if any) as to costs in respect
of aproceeding as it thinks fit.(11)The relevant
appeals body may refuse to review a decision if it considers that
theapplication for review is trivial or
vexatious.(12)A determination
by the relevant appeals body on the review of a decision has the
sameeffect as if it were made by the person who
made the decision.(13)This section
applies to a decision—(a)that a pipeline
or proposed pipeline is, or is not, or ceases to be, or does
notcease to be, a Code pipeline;(ab)to grant, or to
refuse, a binding no-coverage determination in relation to apipeline under Part 3A;(ac)to
revoke a greenfields pipeline incentive under section 13ZA;(b)to add to, or to waive, the
requirement under the Code that a service providerbe a
body corporate or statutory authority or not be a producer,
purchaser orseller of natural gas or relating to the
separation of certain activities of aservice
provider;(c)not to approve a contract, arrangement
or understanding between a serviceprovider and an
associate of a service provider;(d)relating to any other matter that, under the
Code, is a decision to which thissection
applies.39—Limited review of certain decisions of
Regulator(1)If the relevant Regulator makes a
decision under the Code to approve the Regulator'sown
access arrangement or the Regulator's own revisions of an access
arrangement—(a)in place of an access arrangement or
revisions submitted for approval by aservice
provider; or36This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(b)because a
service provider fails to submit an access arrangement or
revisionsas required by the Code,the following
persons may apply to the relevant appeals body for a review of
thedecision:(c)the
service provider;(d)a person who made a submission to the
relevant Regulator on the accessarrangement or
revisions submitted by the service provider or drafted by
theRegulator and whose interests are adversely
affected by the decision.(1a)If the relevant
Regulator makes a decision under the Code—(a)to
disallow a variation proposed by a service provider of a Reference
Tariffwithin an Access Arrangement Period;
or(b)to make the Regulator's own variation
of a Reference Tariff within an AccessArrangement
Period—(i)on disallowing a variation proposed by
a service provider; or(ii)because a
service provider fails to submit such a variation as
requiredby the Code,the service
provider may apply to the relevant appeals body for a review of
thedecision.(2)An
application under this section—(a)may
be made only on the grounds, to be established by the
applicant—(i)of an error in the relevant
Regulator's finding of facts; or(ii)that
the exercise of the relevant Regulator's discretion was
incorrector was unreasonable having regard to all the
circumstances; or(iii)that the
occasion for exercising the discretion did not arise; and(b)in the case of an application under
subsection (1), may not raise any matterthat was not
raised in submissions to the relevant Regulator before thedecision was made.(3)An
application under this section must give details of the grounds for
making theapplication.(4)In a
review of a decision under this section, the relevant appeals body
may givedirections to the parties excluding from the
review specified facts, findings, matters oractions that the
relevant appeals body considers should be excluded having
regardto—(a)the likelihood
of the decision being varied or set aside on account of
thosefacts, findings, matters or actions;(b)the significance to the parties of
those facts, findings, matters or actions;(c)the
amount of money involved;(d)any other
matters that the relevant appeals body considers relevant.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200237
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(5)The relevant appeals body, in
reviewing a decision under this section must notconsider any matter other than—(a)the application for review and
submissions in support of the application (otherthan, in the case of an application under
subsection (1), any matter not raisedin submissions
to the relevant Regulator before the decision was made);(ab)the relevant
access arrangement or proposed access arrangement or
revisionor proposed revision of an access
arrangement, together with any relatedaccess
arrangement information or proposed access arrangement
information;(ac)in the case of
an application under subsection (1a)—any notice of a
proposedvariation of Reference Tariff within an
Access Arrangement Period given bythe service
provider to the relevant Regulator under the Code;(ad)any written
submissions made to the relevant Regulator before the
decisionwas made;(c)any
reports relied on by the relevant Regulator before the decision was
made;(d)any draft decision, and submissions on
any draft decision made to the relevantRegulator;(e)the
decision of the relevant Regulator and the written record of it and
anywritten reasons for it;(f)the
transcript (if any) of any hearing conducted by the relevant
Regulator.(6)Except as otherwise provided in this
section, section 38 (except subsections (1) and(13)) applies to
an application under this section.(7)In
this section—Access Arrangement PeriodandReference Tariffhave the same
meanings as in theCode.Part
7—General40—Supply and haulage of natural gas(1)If a producer states terms and
conditions (whether or not including the price) (thefirstterms) on
which the producer offers to supply natural gas through a Code
pipeline thatis in operation at the time of the offer to
a person at a place other than the exit flangeof the
producer's processing plant, the producer must, on request by the
person, stateterms and conditions (including the price,
if the price was included in the first terms)(thesecond terms) on which the
producer will supply natural gas to the person at theexit
flange.(2)If there is a difference in the price
stated in the first terms and the second terms, theproducer must include in the second terms a
statement of the reasons for thedifference.(3)If
the producer offers to supply natural gas to a person at a place
other than the exitflange of the producer's processing plant,
the producer must, on request, offer tosupply the gas
at the exit flange on the terms and conditions (including price)
stated inaccordance with this section.38This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(4)In this
section—producermeans a person
who carries on a business of producing natural gas.41—Power to obtain information and
documents(1)If a relevant Regulator has reason to
believe that a person has information or adocument that
may assist the Regulator in the performance of any of the
Regulator'sprescribed duties under this Law, the
Regulator may require the person to give theRegulator the
information or a copy of the document.(2)A
requirement must be made in a written notice that identifies the
information ordocument and that specifies—(a)by when the requirement must be
complied with; and(b)in what form the information or copy
of the document is to be given to therelevant
Regulator.(3)The notice must also state that the
requirement is made under this section and mustinclude a copy
of this section.(4)A person must not, without lawful
excuse, fail to comply with any requirement madeunder this section in a notice given to the
person.Maximum penalty: $10 000 or imprisonment for
12 months.(5)If the person is a natural person, it
is a lawful excuse for the purpose of subsection (4)that
compliance may tend to incriminate the person or make the person
liable to apenalty for any other offence.(6)A person must not, in purported
compliance with a requirement made under thissection,
knowingly give the relevant Regulator information that is false or
misleading.Maximum penalty: $10 000 or imprisonment for
12 months.(7)A person must not—(a)threaten, intimidate or coerce another
person; or(b)take, threaten to take, incite or be
involved in any action that causes anotherperson to suffer
any loss, injury or disadvantage,because that
other person complied, or intends to comply, with a requirement
madeunder this section.Maximum penalty:
$10 000 or imprisonment for 12 months.(8)A
person is not liable in any way for any loss, damage or injury
suffered by anotherperson because of the giving in good faith
of a document or information to therelevant
Regulator under this section.(9)In
this section—prescribed dutymeans—(a)deciding whether to approve an access
arrangement under the Code;(b)deciding whether to approve changes to an
access arrangement under theCode;(c)deciding whether to approve a
contract, arrangement or understandingbetween a
service provider and an associate of a service provider;[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200239
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(ca)deciding under
the Code whether to approve, disallow or make a variation ofa
Reference Tariff within an Access Arrangement Period (within the
meaningof the Code);(d)monitoring compliance with the Code.42—Restriction on disclosure of confidential
information(1)This section applies if information or
a document is given to the relevant Regulatorunder section 41
and, at the time it is given, the person giving it states that it
is of aconfidential or commercially-sensitive
nature.(2)Except as otherwise provided in the
Code, the relevant Regulator must not disclose theinformation or the contents of the document
to any person unless—(a)the relevant
Regulator is of the opinion—(i)that
the disclosure of the information or document would not
causedetriment to the person supplying it or to
the person from whom thatperson received it; or(ii)that, although
the disclosure of the information or document wouldcause detriment to such a person, the public
benefit in disclosing itoutweighs that detriment; and(b)the relevant Regulator has given the
person who supplied the information ordocument a
written notice—(i)stating that the relevant Regulator
wishes to disclose the informationor contents of
the document, specifying the nature of the intendeddisclosure and setting out detailed reasons
why the Regulator wishesto make the disclosure; and(ii)stating that the
Regulator is of the opinion required by paragraph (a)and
setting out detailed reasons why it is of that opinion; and(iii)setting out a
copy of this section and section 43; and(c)if
the relevant Regulator is aware that the person who supplied
theinformation or document in turn received the
information or document fromanother person
and is aware of that other person's identity and address,
therelevant Regulator has given that other
person a written notice—(i)containing the
details required by paragraph (b); and(ii)stating that the relevant Regulator is of
the opinion required byparagraph (a) in relation to that
other person and setting out detailedreasons why it
is of that opinion; and(d)if the relevant
Regulator is the ACCC and the information or document is orincludes personal information within the
meaning of thePrivacy Act 1988ofthe
Commonwealth, the person to whom it is disclosed undertakes to
complywith the Information Privacy Principles set
out in section 14 of that Act inrespect of the
information or document; and(e)an
application for review is not lodged in respect of any notice given
underparagraph (b) or (c) within the time
permitted by section 43(3).40This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(3)Subsection (2)
does not prevent the relevant Regulator—(a)from
disclosing information or the contents of a document to a member of
thestaff of the relevant Regulator employed or
engaged for the purposes of thisLaw or to
another relevant Regulator; or(b)from
using information or a document for the purposes of civil or
criminalproceedings; or(c)from
supplying the information or document to the member of a
relevantappeals body for the purpose of proceedings
in relation to the information ordocument.(4)If an application for review of a
decision of the relevant Regulator is lodged undersection 43 with a relevant appeals body
and—(a)the application is withdrawn or
dismissed or the decision is affirmed, therelevant
Regulator may disclose any information, or the contents of
anydocument, that was the subject of the review
in the manner set out in thenotice given
under subsection (2)(b) or (c); or(b)the
decision is varied or set aside, the relevant Regulator may
discloseanything that the relevant appeals body
permits the relevant Regulator todisclose under
section 43(4)(b) in the manner specified by the relevantappeals body.(5)For
the purposes of this section, the disclosure of anything that is
already in the publicdomain at the time the relevant
Regulator wishes to disclose it cannot cause detrimentto
any person referred to in subsection (2)(b) or (c).43—Application for review of disclosure
notice(1)A person who is given a notice under
section 42(2)(b) or (c) and who is aggrieved by adecision of the relevant Regulator to
disclose information or the contents of adocument may
apply to the relevant appeals body for a review of the
decision.(2)An application may only be made on the
ground that—(a)the decision was not made in
accordance with law; or(b)the decision is
unreasonable having regard to all relevant circumstances.(3)The person must lodge the application
with the relevant appeals body within7 working days
after the person is given the notice.(4)In
granting an appeal under this section the relevant appeals body
may—(a)forbid disclosure by the relevant
Regulator of the information or documentthat is the
subject of the review; or(b)restrict the
intended disclosure by the relevant Regulator of the information
ordocument within limits specified by the
relevant appeals body.(5)Except as
otherwise provided in this section, section 38 (except subsections
(1), (2),(6) and (13)) applies to a review under this
section.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200241
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelinesAppendix to Schedule 1—Miscellaneous
provisions relating tointerpretationPart
1—Preliminary1—Displacement of Appendix by contrary
intentionThe application of this Appendix may be
displaced, wholly or partly, by acontrary
intention appearing in this Law.Part
2—General2—Law to be construed not to exceed
legislative power of Legislature(1)This
Law is to be construed as operating to the full extent of, but so
as not toexceed, the legislative power of the
Legislature.(2)If a provision of this Law, or the
application of a provision of this Law to aperson, subject
matter or circumstance would, but for this clause, be
construedas being in excess of the legislative power
of the Legislature—(a)it is a valid provision to the extent
to which it is not in excess of thepower;
and(b)the remainder of this Law, and the
application of the provision to otherpersons, subject
matters or circumstances, is not affected.(3)Without limiting subclause (2), this Law is
not to be construed as imposing anyduty on the NCC,
the Commonwealth Minister, the ACCC or the AustralianCompetition Tribunal to perform a function
or exercise a power if theimposition of the duty would be in
excess of the legislative power of theLegislature.Note—The
termfunctionis defined in
clause 10 to includeduty.(4)In particular, if a provision of this
Law appears to impose a duty on the NCC,the Commonwealth
Minister, the ACCC or the Australian Competition Tribunalto
perform a function or exercise a power in matters or circumstances
in whichthe assumption of the duty cannot be validly
authorised under the law of theCommonwealth, or
is otherwise ineffective, the provision is to be construed as
ifits operation were expressly confined
to—(a)acts or omissions of corporations to
which section 51(xx) of theConstitution of
the Commonwealthapplies; or(b)acts
or omissions taking place in the course of, or in relation to,
trade orcommerce between this jurisdiction and
places outside this jurisdiction(whether within
or outside Australia); or(c)acts or
omissions taking place outside Australia, or in relation to
thingsoutside Australia.(5)This
clause does not limit the effect that a provision of this Law would
validlyhave apart from this clause.42This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 13—Every section to be a substantive
enactmentEvery section of this Law has effect as a
substantive enactment withoutintroductory
words.4—Material that is, and is not, part of this
Law(1)The heading to a Part, Division or
Subdivision into which this Law is divided ispart of this
Law.(2)A Schedule, or Appendix to a Schedule,
to this Law is part of this Law.(3)A
heading to a section or subsection of this Law does not form part
of this Law.5—References to particular Acts and to
enactmentsIn this Law—(a)an
Act of this scheme participant may be cited—(i)by
its short title; or(ii)in another way
sufficient in an Act of this scheme participantfor the citation
of such an Act; and(b)a Commonwealth Act may be
cited—(i)by its short title; or(ii)in another way
sufficient in a Commonwealth Act for thecitation of such
an Act,together with a reference to the
Commonwealth; and(c)an Act of another scheme participant
may be cited—(i)by its short title; or(ii)in another way
sufficient in an Act of the scheme participantfor the citation
of such an Act,together with a reference to the scheme
participant.6—References taken to be included in Act or
Law citation etc(1)A reference in this Law to an Act
includes a reference to—(a)the Act as
originally enacted, and as amended from time to time sinceits
original enactment; and(b)if the Act has
been repealed and re-enacted (with or withoutmodification)
since the enactment of the reference, the Act as re-enacted, and as amended from time to time
since its re-enactment.(2)A reference in
this Law to a provision of this Law or of an Act includes areference to—(a)the
provision as originally enacted, and as amended from time to
timesince its original enactment; and(b)if the provision has been omitted and
re-enacted (with or withoutmodification)
since the enactment of the reference, the provision asre-enacted, and as amended from time to time
since its re-enactment.[15.9.2006] This version is not
published under theLegislation Revision and Publication Act
200243
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(3)Subclauses (1) and (2) apply to a
reference in this Law to a law of anotherscheme
participant as they apply to a reference in this Law to an Act and
to aprovision of an Act.7—Interpretation
best achieving Law's purpose(1)In
the interpretation of a provision of this Law, the interpretation
that will bestachieve the purpose or object of this Law is
to be preferred to any otherinterpretation.(2)Subclause (1) applies whether or not the
purpose is expressly stated in this Law.8—Use of
extrinsic material in interpretation(1)In
this clause—extrinsic materialmeans relevant
material not forming part of this Law,including, for
example—(a)material that is set out in the
document containing the text of this Lawas printed by
authority of the Government Printer of South Australia;and(b)a relevant
report of a Royal Commission, Law Reform Commission,commission or committee of inquiry, or a
similar body, that was laidbefore the
Legislative Council or House of Assembly of SouthAustralia before the provision concerned was
enacted; and(c)a relevant report of a committee of
the Legislative Council or House ofAssembly of
South Australia that was made to the Legislative Councilor
House of Assembly of South Australia before the provision
wasenacted; and(d)a
treaty or other international agreement that is mentioned in this
Law;and(e)an explanatory
note or memorandum relating to the Bill that containedthe
provision, or any relevant document, that was laid before, or
givento the members of, the Legislative Council
or House of Assembly ofSouth Australia by the member bringing
in the Bill before the provisionwas enacted;
and(f)the speech made to the Legislative
Council or House of Assembly ofSouth Australia
by the member in moving a motion that the Bill be reada
second time; and(g)material in the Votes and Proceedings
of the Legislative Council orHouse of
Assembly of South Australia or in any official record ofdebates in the Legislative Council or House
of Assembly of SouthAustralia; and(h)a
document that is declared by this Law to be a relevant document
forthe purposes of this clause;ordinary meaningmeans the
ordinary meaning conveyed by a provision havingregard to its
context in this Law and to the purpose of this Law.44This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(2)Subject to
subclause (3), in the interpretation of a provision of this
Law,consideration may be given to extrinsic
material capable of assisting in theinterpretation—(a)if
the provision is ambiguous or obscure, to provide an interpretation
ofit; or(b)if
the ordinary meaning of the provision leads to a result that
ismanifestly absurd or is unreasonable, to
provide an interpretation thatavoids such a
result; or(c)in any other case, to confirm the
interpretation conveyed by theordinary meaning
of the provision.(3)In determining whether consideration
should be given to extrinsic material, andin determining
the weight to be given to extrinsic material, regard is to be
hadto—(a)the desirability
of a provision being interpreted as having its ordinarymeaning; and(b)the
undesirability of prolonging proceedings without
compensatingadvantage; and(c)other relevant matters.9—Compliance with
forms(1)If a form is prescribed or approved by
or for the purpose of this Law, strictcompliance with
the form is not necessary and substantial compliance issufficient.(2)If a
form prescribed or approved by or for the purpose of this Law
requires—(a)the form to be completed in a
specified way; or(b)specified information or documents to
be included in, attached to orgiven with the
form; or(c)the form, or information or documents
included in, attached to or givenwith the form,
to be verified in a specified way,the form is not
properly completed unless the requirement is complied with.Part
3—Terms and references10—DefinitionsIn this
Law—Actmeans an Act of the
Legislature;affidavit, in relation to
a person allowed by law to affirm, declare or promise,includes affirmation, declaration and
promise;amendincludes—(a)omit or omit and substitute; or(b)alter or vary; or(c)amend by implication;[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200245
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelinesappointincludes
re-appoint;Australiameans the
Commonwealth of Australia but, when used in ageographical
sense, does not include an external Territory;breachincludes fail to comply with;business daymeans a day that
is not—(a)a Saturday or Sunday; or(b)a public holiday, special holiday or
bank holiday in the place in whichany relevant act
is to be or may be done;calendar monthmeans a period
starting at the beginning of any day of one ofthe 12 named
months and ending—(a)immediately before the beginning of
the corresponding day of the nextnamed month;
or(b)if there is no such corresponding day,
at the end of the next namedmonth;calendar yearmeans a period
of 12 months beginning on 1 January;commencement, in relation to
this Law or an Act or a provision of this Law oran
Act, means the time at which this Law, the Act or provision comes
intooperation;Commonwealthmeans the
Commonwealth of Australia but, when used in ageographical
sense, does not include an external territory;confer, in
relation to a function, includes impose;contraveneincludes fail to
comply with;definitionmeans a
provision of this Law (however expressed) that—(a)gives a meaning to a word or expression;
or(b)limits or extends the meaning of a
word or expression;documentincludes—(a)any paper or other material on which
there is writing; or(b)any paper or
other material on which there are marks, figures, symbolsor
perforations having a meaning for a person qualified to
interpretthem; or(c)any
disc, tape or other article or any material from which
sounds,images, writings or messages are capable of
being reproduced (with orwithout the aid of another article or
device);estateincludes
easement, charge, right, title, claim, demand, lien orencumbrance, whether at law or in
equity;expireincludes lapse
or otherwise cease to have effect;failincludes refuse;financial
yearmeans a period of 12 months beginning on 1
July;functionincludes
duty;46This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1Gazettemeans the
Government Gazette of this scheme participant;Governormeans the Governor acting with the advice
and consent of theExecutive Council;instrumentincludes a
statutory instrument;interest, in relation to
land or other property, means—(a)a
legal or equitable estate in the land or other property; or(b)a right, power or privilege over, or
in relation to, the land or otherproperty;internal Territorymeans the
Australian Capital Territory, the Jervis BayTerritory or the
Northern Territory;Jervis Bay Territorymeans the
Territory mentioned in theJervis Bay TerritoryAcceptance Act 1915of the
Commonwealth;makeincludes issue
or grant;minormeans an
individual who is under 18;modificationincludes
addition, omission or substitution;monthmeans a calendar month;named
monthmeans one of the 12 months of the
year;Northern Territorymeans the
Northern Territory of Australia;numbermeans—(a)a
number expressed in figures or words; or(b)a
letter; or(c)a combination of a number so expressed
and a letter;oath, in relation to
a person allowed by law to affirm, declare or promise,includes affirmation, declaration or
promise;officeincludes
position;omit, in relation to
a provision of this Law or an Act, includes repeal;partyincludes an
individual or a body politic or corporate;penaltyincludes forfeiture or punishment;personincludes an
individual or a body politic or corporate;powerincludes authority;prescribedmeans prescribed
by, or by regulations made or in force for thepurposes of or
under, this Law;printedincludes
typewritten, lithographed or reproduced by any mechanicalmeans;proceedingmeans a legal or
other action or proceeding;propertymeans any legal or equitable estate or
interest (whether present orfuture, vested
or contingent, or tangible or intangible) in real or
personalproperty of any description (including
money), and includes things in action;[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200247
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelinesprovision, in relation to
this Law or an Act, means words or other matter thatform
or forms part of this Law or the Act, and includes—(a)a Part, Division, Subdivision,
section, subsection, paragraph,subparagraph,
subsubparagraph or Schedule of or to this Law or theAct;
or(b)a section, clause, subclause, item,
column, table or form of or in aSchedule to this
Law or the Act; or(c)the long title and any preamble to the
Act;recordincludes
information stored or recorded by means of a computer;repealincludes—(a)revoke or rescind; or(b)repeal by implication; or(c)abrogate or limit the effect of this
Law or instrument concerned; or(d)exclude from, or include in, the application
of this Law or instrumentconcerned any person, subject matter
or circumstance;signincludes the
affixing of a seal or the making of a mark;statutory
declarationmeans a declaration made under an Act, or
under aCommonwealth Act or an Act of another
jurisdiction, that authorises adeclaration to
be made otherwise than in the course of a judicial
proceeding;statutory instrumentmeans an
instrument (including a regulation) made or inforce under or
for the purposes of this Law, and includes an instrument made
orin force under any such instrument;swear, in relation to
a person allowed by law to affirm, declare or promise,includes affirm, declare or promise;wordincludes any
symbol, figure or drawing;writingincludes any
mode of representing or reproducing words in a visibleform.11—Provisions
relating to defined terms and gender and number(1)If
this Law defines a word or expression, other parts of speech and
grammaticalforms of the word or expression have
corresponding meanings.(2)Definitions in
or applicable to this Law apply except so far as the context
orsubject matter otherwise indicates or
requires.(3)In this Law, words indicating a gender
include each other gender.(4)In this
Law—(a)words in the singular include the
plural; and(b)words in the plural include the
singular.48This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 112—Meaning of may and must etc(1)In this Law, the word "may", or a
similar word or expression, used in relation toa power
indicates that the power may be exercised or not exercised,
atdiscretion.(2)In
this Law, the word "must", or a similar word or expression, used in
relation toa power indicates that the power is required
to be exercised.(3)This clause has effect despite any
rule of construction to the contrary.13—Words and
expressions used in statutory instruments(1)Words and expressions used in a statutory
instrument have the same meaningsas they have,
from time to time, in this Law, or relevant provisions of this
Law,under or for the purposes of which the
instrument is made or in force.(2)This
clause has effect in relation to an instrument except so far as the
contraryintention appears in the instrument.14—Effect of express references to bodies
corporate and individualsIn this Law, a reference to a person
generally (whether the expression "person","another" or
"whoever" or another expression is used)—(a)does
not exclude a reference to a body corporate or an individualmerely because elsewhere in this Law there
is particular reference to abody corporate
(however expressed); and(b)does not exclude
a reference to an individual or a body corporatemerely because elsewhere in this Law there
is particular reference to anindividual
(however expressed).15—References to Minister(1)In this Law—(a)a
reference to a Minister is a reference to a Minister of the Crown
ofthis scheme participant; and(b)a reference to a particular Minister
by title, or to "the Minister" withoutspecifying a
particular Minister by title, includes a reference to
anotherMinister, or a member of the Executive
Council of this schemeparticipant, who is acting for and on
behalf of the Minister.(2)In a provision
of this Law, a reference to "the Minister", without specifying
aparticular Minister by title is a reference
to—(a)the Minister of this scheme
participant administering the provision; or(b)if,
for the time being, different Ministers of this scheme
participantadminister the provision in relation to
different matters—(i)if only one Minister of this scheme
participant administers theprovision in
relation to the relevant matter, the Minister; or(ii)if 2 or more
Ministers of this scheme participant administer theprovision in relation to the relevant
matter, any one of thoseMinister; or[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200249
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(c)if paragraph (b) does not apply and,
for the time being, 2 or moreMinisters
administer the provision, any one of the Ministers.(3)For the removal of doubt, it is
declared that if—(a)a provision of this Law is
administered by 2 or more Ministers of thisscheme
participant; and(b)the provision requires or permits
anything to be done in relation to anyof the
Ministers,the provision does not require or permit it
to be done in a particular case by or inrelation to more
than one of the Ministers.16—Production of records kept in
computers etcIf a person who keeps a record of
information by means of a mechanical,electronic or
other device is required by or under this Law—(a)to
produce the information or a document containing the information
toa court, tribunal or person; or(b)to make a document containing the
information available for inspectionby a court,
tribunal or person,then, unless the court, tribunal or person
otherwise directs—(c)the requirement obliges the person to
produce or make available forinspection, as
the case may be, a document that reproduces theinformation in a
form capable of being understood by the court, tribunalor
person; and(d)the production to the court, tribunal
or person of the document in thatform complies
with the requirement.17—This scheme participantIn
this Law—(a)a reference to an officer, office or
statutory body is a reference to suchan officer,
office or statutory body in and for this scheme participant;and(b)a reference to a
locality or other matter or thing is a reference to such alocality or other matter or thing in and of
this scheme participant.18—References to officers and holders
of officesIn this Law, a reference to a particular
officer, or to the holder of a particularoffice, includes
a reference to the person for the time being occupying or
actingin the office concerned.19—Reference to
certain provisions of LawIf a provision of this Law
refers—(a)to a Part, section or Schedule by a
number and without reference to thisLaw, the
reference is a reference to the Part, section or Schedule,designated by the number, of or to this Law;
or50This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(b)to a Schedule
without reference to it by a number and without referenceto
this Law, the reference, if there is only one Schedule to this Law,
is areference to the Schedule; or(c)to a Division, Subdivision,
subsection, paragraph, subparagraph,subsubparagraph,
clause, subclause, item, column, table or form by anumber and without reference to this Law,
the reference is a referenceto—(i)the Division, designated by the
number, of the Part in whichthe reference
occurs; and(ii)the Subdivision,
designated by the number, of the Division inwhich the
reference occurs; and(iii)the subsection,
designated by the number, of the section inwhich the
reference occurs; and(iv)the paragraph,
designated by the number, of the section,subsection,
Schedule or other provision in which the referenceoccurs; and(v)the
paragraph, designated by the number, of the clause,subclause, item, column, table or form of or
in the Schedule inwhich the reference occurs; and(vi)the
subparagraph, designated by the number, of the paragraphin
which the reference occurs; and(vii)the
subsubparagraph, designated by the number, of thesubparagraph in which the reference occurs;
and(viii)the section,
clause, subclause, item, column, table or form,designated by
the number, of or in the Schedule in which thereference
occurs,as the case requires.Part 4—Functions
and powers20—Performance of statutory functions(1)If this Law confers a function or
power on a person or body, the function maybe performed, or
the power may be exercised, from time to time as occasionrequires.(2)If
this Law confers a function or power on a particular officer or the
holder of aparticular office, the function may be
performed, or the power may beexercised, by
the person for the time being occupying or acting in the
officeconcerned.(3)If
this Law confers a function or power on a body (whether or not
incorporated),the performance of the function, or the
exercise of the power, is not affectedmerely because
of vacancies in the membership of the body.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200251
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines21—Power to make instrument or decision
includes power to amend orrepealIf this Law
authorises or requires the making of an instrument or
decision—(a)the power includes power to amend or
repeal the instrument ordecision; and(b)the
power to amend or repeal the instrument or decision is
exercisablein the same way, and subject to the same
conditions, as the power tomake the
instrument or decision.22—Matters for which statutory
instruments may make provision(1)If
this Law authorises or requires the making of a statutory
instrument inrelation to a matter, a statutory instrument
made under this Law may makeprovision for
the matter by applying, adopting or incorporating (with or
withoutmodification) the provisions of—(a)an Act or statutory instrument;
or(b)another document (whether of the same
or a different kind),as in force at a particular time or as
in force from time to time.(2)If a
statutory instrument applies, adopts or incorporates the provisions
of adocument, the statutory instrument applies,
adopts or incorporates theprovisions as in force from time to
time, unless the statutory instrumentotherwise
expressly provides.(3)A statutory instrument may—(a)apply generally throughout the
jurisdictional area of this schemeparticipant or
be limited in its application to a particular part of thatarea; or(b)apply generally to all persons, matters or
things or be limited in itsapplication
to—(i)particular persons, matters or things;
or(ii)particular
classes of persons, matters or things; or(c)otherwise apply generally or be limited in
its application by referenceto specified
exceptions or factors.(4)A statutory
instrument may—(a)apply differently according to
different specified factors; or(b)otherwise make different provision in
relation to—(i)different persons, matters or things;
or(ii)different
classes of persons, matters or things.(5)A
statutory instrument may authorise a matter or thing to be from
time to timedetermined, applied or regulated by a
specified person or body.(6)If this Law
authorises or requires a matter to be regulated by statutoryinstrument, the power may be exercised by
prohibiting by statutory instrumentthe matter or
any aspect of the matter.52This version is
not published under theLegislation Revision and Publication
Act 2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(7)If this Law
authorises or requires provision to be made with respect to a
matterby statutory instrument, a statutory
instrument made under this Law may makeprovision with
respect to a particular aspect of the matter despite the fact
thatprovision is made by this Law in relation to
another aspect of the matter or inrelation to
another matter.(8)A statutory instrument may provide for
the review of, or a right of appealagainst, a
decision made under the statutory instrument, or this Law, and
may,for that purpose, confer jurisdiction on any
court, tribunal, person or body.(9)A
statutory instrument may require a form prescribed by or under the
statutoryinstrument, or information or documents
included in, attached to or given withthe form, to be
verified by statutory declaration.23—Presumption of
validity and power to make(1)All conditions
and preliminary steps required for the making of a statutoryinstrument are presumed to have been
satisfied and performed in the absence ofevidence to the
contrary.(2)A statutory instrument is taken to be
made under all powers under which it maybe made, even
though it purports to be made under this Law or a particularprovision of this Law.24—Appointments
may be made by name or office(1)If
this Law authorises or requires a person or body—(a)to appoint a person to an office;
or(b)to appoint a person or body to
exercise a power; or(c)to appoint a
person or body to do another thing,the person or
body may make the appointment by—(d)appointing a person or body by name;
or(e)appointing a particular officer, or
the holder of a particular office, byreference to the
title of the office concerned.(2)An
appointment of a particular officer, or the holder of a particular
office, istaken to be the appointment of the person
for the time being occupying or actingin the office
concerned.25—Acting appointments(1)If
this Law authorises a person or body to appoint a person to act in
an office,the person or body may, in accordance with
this Law, appoint—(a)a person by name; or(b)a particular officer, or the holder of
a particular office, by reference tothe title of the
office concerned,to act in the office.(2)The
appointment may be expressed to have effect only in the
circumstancesspecified in the instrument of
appointment.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200253
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(3)The appointer may—(a)determine the terms and conditions of the
appointment, includingremuneration and allowances;
and(b)terminate the appointment at any
time.(4)The appointment, or the termination of
the appointment, must be in, orevidenced by,
writing signed by the appointer.(5)The
appointee must not act for more than one year during a vacancy in
theoffice.(6)If
the appointee is acting in the office otherwise than because of a
vacancy inthe office and the office becomes vacant,
then, subject to subclause (2), theappointee may
continue to act until—(a)the appointer
otherwise directs; or(b)the vacancy is
filled; or(c)the end of a year from the day of the
vacancy,whichever happens first.(7)The
appointment ceases to have effect if the appointee resigns by
writing signedand delivered to the appointer.(8)While the appointee is acting in the
office—(a)the appointee has all the powers and
functions of the holder of theoffice;
and(b)this Law and other laws apply to the
appointee as if the appointee werethe holder of
the office.(9)Anything done by or in relation to a
person purporting to act in the office is notinvalid merely
because—(a)the occasion for the appointment had
not arisen; or(b)the appointment had ceased to have
effect; or(c)the occasion for the person to act had
not arisen or had ceased.(10)If this Law
authorises the appointer to appoint a person to act during a
vacancyin the office, an appointment to act in the
office may be made by the appointerwhether or not
an appointment has previously been made to the office.26—Powers of appointment imply certain
incidental powers(1)If this Law authorises or requires a
person or body to appoint a person to anoffice—(a)the power may be exercised from time
to time as occasion requires; and(b)the
power includes—(i)power to remove or suspend, at any
time, a person appointed tothe office;
and(ii)power to appoint
another person to act in the office if a personappointed to the
office is removed or suspended; and54This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(iii)power to
reinstate or reappoint a person removed orsuspended;
and(iv)power to appoint
a person to act in the office if it is vacant(whether or not
the office has ever been filled); and(v)power to appoint a person to act in the
office if the personappointed to the office is absent or
is unable to discharge thefunctions of the office (whether
because of illness orotherwise).(2)The
power to remove or suspend a person under subclause (1)(b) may
beexercised even if this Law provides that the
holder of the office to which theperson was
appointed is to hold office for a specified period.(3)The power to make an appointment under
subclause (1)(b) may be exercisedfrom time to
time as occasion requires.(4)An appointment
under subclause (1)(b) may be expressed to have effect only
inthe circumstances specified in the
instrument of appointment.27—Delegation(1)If
this Law authorises a person to delegate a function or power, the
person may,in accordance with this Law, delegate the
function or power to—(a)a person by
name; or(b)a particular officer, or the holder of
a particular office, by reference tothe title of the
office concerned.(2)The delegation—(a)may
be general or limited; and(b)may be made from
time to time; and(c)may be revoked, wholly or partly, by
the delegator.(3)The delegation, or a revocation of the
delegation, must be in, or evidenced by,writing signed
by the delegator or if the delegator is a body corporate, by
aperson authorised by the body corporate for
the purpose.(4)A delegated function or power may be
exercised only in accordance with anyconditions to
which the delegation is subject.(5)The
delegate may, in the exercise of a delegated function or power, do
anythingthat is incidental to the delegated function
or power.(6)A delegated function or power that
purports to have been exercised by thedelegate is
taken to have been duly exercised by the delegate unless the
contraryis proved.(7)A
delegated function or power that is duly exercised by the delegate
is taken tohave been exercised by the delegator.(8)If, when exercised by the delegator, a
function or power is, under this Law,dependent on the
delegator's opinion, belief or state of mind in relation to
amatter, the function or power, when
exercised by the delegate, is dependent onthe delegate's
opinion, belief or state of mind in relation to the matter.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200255
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(9)If a function or power is delegated to
a particular officer or the holder of aparticular
office—(a)the delegation does not cease to have
effect merely because the personwho was the
particular officer or the holder of the particular officewhen
the power was delegated ceases to be the officer or the holder
ofthe office; and(b)the
function or power may be exercised by the person for the
timebeing occupying or acting in the office
concerned.(10)A function or
power that has been delegated may, despite the delegation,
beexercised by the delegator.28—Exercise of powers between enactment and
commencement(1)If a provision of this Law (theempowering provision) that does not
commenceon its enactment would, had it commenced,
confer a power—(a)to make an appointment; or(b)to make a statutory instrument of a
legislative or administrativecharacter;
or(c)to do another thing,then—(d)the
power may be exercised; and(e)anything may be done for the purpose of
enabling the exercise of thepower or of
bringing the appointment, instrument or other thing intoeffect,before the
empowering provision commences.(2)If a
provision of an Act of South Australia (theempowering
provision) thatdoes not
commence on its enactment would, had it commenced, amend aprovision of this Law so that it would
confer a power—(a)to make an appointment; or(b)to make a statutory instrument of a
legislative or administrativecharacter;
or(c)to do another thing,then—(d)the
power may be exercised; and(e)anything may be done for the purpose of
enabling the exercise of thepower or of
bringing the appointment, instrument or other thing intoeffect,before the
empowering provision commences.(3)If—(a)this Law has
commenced and confers a power to make a statutoryinstrument (thebasic
instrument-making power); and56This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(b)a provision of
an Act of South Australia that does not commence on itsenactment would, had it commenced, amend
this Law so as to conferadditional power to make a statutory
instrument (theadditionalinstrument-making power),then—(c)the
basic instrument-making power and the additional instrument-making power may be exercised by making a
single instrument; and(d)any provision of
the instrument that required an exercise of theadditional
instrument-making power is to be treated as made undersubclause (2).(4)If
an instrument, or a provision of an instrument, is made under
subclause (1) or(2) that is necessary for the purpose
of—(a)enabling the exercise of a power
mentioned in the subclause; or(b)bringing an appointment, instrument or other
thing made or done undersuch a power into effect,the
instrument or provision takes effect—(c)on
the making of the instrument; or(d)on
such later day (if any) on which, or at such later time (if any)
atwhich, the instrument or provision is
expressed to take effect.(5)If—(a)an appointment is made under subclause
(1) or (2); or(b)an instrument, or a provision of an
instrument, made undersubclause (1) or (2) is not necessary
for a purpose mentioned insubclause (4),the appointment,
instrument or provision take effect—(c)on
the commencement of the relevant empowering provision; or(d)on such later day (if any) on which,
or at such later time (if any) atwhich, the
appointment, instrument or provision is expressed to takeeffect.(6)Anything done under subclause (1) or (2)
does not confer a right, or impose aliability, on a
person before the relevant empowering provision commences.(7)After the enactment of a provision
mentioned in subclause (2) but before theprovision's
commencement, this clause applies as if the references insubclauses (2) and (5) to the commencement
of the empowering provision werereferences to
the commencement of the provision mentioned in subclause (2)
asamended by the empowering provision.(8)In the application of this clause to a
statutory instrument, a reference to theenactment of the
instrument is a reference to the making of the instrument.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200257
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelinesPart 5—Distance and time29—Matters
relating to distance and time(1)In
the measurement of distance for the purposes of this Law, the
distance is tobe measured along the shortest road
ordinarily used for travelling.(2)If a
period beginning on a given day, act or event is provided or
allowed for apurpose by this Law, the period is to be
calculated by excluding the day, or theday of the act
or event, and—(a)if the period is expressed to be a
specified number of clear days or atleast a
specified number of days, by excluding the day on which thepurpose is to be fulfilled; and(b)in any other case, by including the
day on which the purpose is to befulfilled.(3)If
the last day of a period provided or allowed by this Law for doing
anything isnot a business day in the place in which the
thing is to be or may be done, thething may be
done on the next business day in the place.(4)If
the last day of a period provided or allowed by this Law for the
filing orregistration of a document is a day on which
the office is closed where the filingor registration
is to be or may be done, the document may be filed or
registeredat the office on the next day that the
office is open.(5)If no time is provided or allowed for
doing anything, the thing is to be done assoon as
possible, and as often as the prescribed occasion happens.(6)If, in this Law, there is a reference
to time, the reference is, in relation to thedoing of
anything in a jurisdiction, a reference to the legal time in
thejurisdiction.Part 6—Service
of documents30—Service of documents(1)If
this Law requires or permits a document to be served on a person
(whetherthe expression "deliver", "give", "notify",
"send" or "serve" or anotherexpression is
used), the document may be served—(a)on
an individual—(i)by delivering it to the person
personally; or(ii)by leaving it
at, or by sending it by post, telex, facsimile orsimilar facility to, the address of the
place of residence orbusiness of the person last known to
the person serving thedocument; or(b)on a
body corporate—(i)by leaving it at the registered office
of the body corporate withan officer of the body corporate;
or(ii)by sending it by
post, telex, facsimile or similar facility to itsregistered office.58This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(2)Nothing in
subclause (1)—(a)affects the operation of another law
that authorises the service of adocument
otherwise than as provided in the subclause; or(b)affects the power of a court or tribunal to
authorise service of adocument otherwise than as provided in
the subclause.31—Meaning of service by post etc(1)If this Law requires or permits a
document to be served by post (whether theexpression
"deliver", "give", "notify", "send" or "serve" or another
expression isused), service—(a)may
be effected by properly addressing, prepaying and posting
thedocument as a letter; and(b)is taken to have been effected at the
time at which the letter would bedelivered in the
ordinary course of post, unless the contrary is proved.(2)If this Law requires or permits a
document to be served by a particular postalmethod (whether
the expression "deliver", "give", "notify", "send" or "serve"
oranother expression is used), the requirement
or permission is taken to besatisfied if the
document is posted by that method or, if that method is notavailable, by the equivalent, or nearest
equivalent, method provided for the timebeing by
Australia Post.Part 7—Effect of repeal, amendment or
expiration32—Time of Law ceasing to have effectIf a
provision of this Law is expressed—(a)to
expire on a specified day; or(b)to
remain or continue in force, or otherwise have effect, until
aspecified day,this provision
has effect until the last moment of the specified day.33—Repealed Law provisions not
revivedIf a provision of this Law is repealed or
amended by an Act of South Australia,or a provision
of an Act of South Australia, the provision is not revived
merelybecause the Act or the provision of the
Act—(a)is later repealed or amended;
or(b)later expires.34—Saving of
operation of repealed Law provisions(1)The
repeal, amendment or expiry of a provision of this Law does
not—(a)revive anything not in force or
existing at the time the repeal,amendment or
expiry takes effect; or(b)affect the
previous operation of the provision or anything suffered,done
or begun under the provision; or[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200259
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Schedule 1—Third party access to natural gas
pipelines(c)affect a right, privilege or liability
acquired, accrued or incurred underthe provision;
or(d)affect a penalty incurred in relation
to an offence arising under theprovision;
or(e)affect an investigation, proceeding or
remedy in relation to such a right,privilege,
liability or penalty.(2)Any such penalty
may be imposed and enforced, and any such investigation,proceeding or remedy may be begun, continued
or enforced, as if the provisionhad not been
repealed or amended or had not expired.35—Continuance of
repealed provisionsIf an Act of South Australia repeals some
provisions of this Law and enacts newprovisions in
substitution for the repealed provisions, the repealed
provisionscontinue in force until the new provisions
commence.36—Law and amending Acts to be read as
oneThis Law and all Acts of South Australia
amending this Law are to be read asone.Part
8—Offences under this Law37—Penalty at end of provisionIn
this Law, a penalty specified at the end of—(a)a
section (whether or not the section is divided into subsections);
or(b)a subsection (but not at the end of a
section); or(c)a section or subsection and expressed
in such a way as to indicate that itapplies only to
part of the section or subsection,indicates that
an offence mentioned in the section, subsection or part ispunishable on conviction or, if no offence
is mentioned, a contravention of thesection,
subsection or part constitutes an offence against the provision
that ispunishable, on conviction, by a penalty not
more than the specified penalty.38—Penalty other
than at end of provision(1)In this Law, a
penalty specified for an offence, or a contravention of a
provision,indicates that the offence is punishable on
conviction, or the contraventionconstitutes an
offence against the provision that is punishable, on conviction,
bya penalty not more than the specified
penalty.(2)This clause does not apply to a
penalty to which clause 37 applies.39—Indictable
offences and summary offences(1)An
offence against this Law that is not punishable by imprisonment
ispunishable summarily.(2)An
offence against this Law that is punishable by imprisonment is,
subject tosubclause (3), punishable on
indictment.60This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Third party access to natural gas
pipelines—Schedule 1(3)If—(a)a proceeding for an offence against
this Law that is punishable byimprisonment is
brought in a court of summary jurisdiction; and(b)the
prosecutor requests the court to hear and determine the
proceeding,the offence is punishable summarily and the
court must hear and determine theproceeding.(4)A
court of summary jurisdiction must not—(a)impose, in relation to a single offence
against this Law, a period ofimprisonment of
more than 2 years; or(b)impose, in
relation to offences against this Law, cumulative periods ofimprisonment that are, in total, more than 5
years.(5)Nothing in this clause renders a
person liable to be punished more than once inrelation to the
same offence.40—Double jeopardyIf an act or
omission constitutes an offence—(a)under this Law; or(b)under another law of this scheme participant
or a law of another schemeparticipant,and the offender
has been punished in relation to the offence under a lawmentioned in paragraph (b), the offender is
not liable to be punished in relationto the offence
under this Law.41—Aiding and abetting, attempts etc(1)A person who aids, abets, counsels or
procures, or by act or omission is in anyway directly or
indirectly concerned in or a party to, the commission of anoffence against this Law is taken to have
committed that offence and is liable tothe penalty for
the offence.(2)A person who attempts to commit an
offence against this Law commits anoffence and is
punishable as if the attempted offence had been committed.Part
9—Instruments under this Law42—Appendix
applies to statutory instruments(1)This
Appendix applies to a statutory instrument, and to things that may
be doneor are required to be done under a statutory
instrument, in the same way as itapplies to this
Law, and things that may be done or are required to be doneunder this Law, except so far as the context
or subject matter otherwise indicatesor
requires.(2)The fact that a provision of this
Appendix refers to this Law and not also to astatutory
instrument does not, by itself, indicate that the provision is
intended toapply only to this Law.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200261
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2Schedule
2—National Third Party Access Code for Natural GasPipeline SystemsNote—A
consolidated copy of this Code (as amended from time to time) is
available from the CodeRegistrar and accessible at
http://www.coderegistrar.sa.gov.au.INTRODUCTIONThis Code
establishes a national access regime for natural gas pipeline
systems.The objective of this Code is to establish a
framework for third party access to gaspipelines
that:(a)facilitates the development and
operation of a national market for naturalgas; and(b)prevents abuse of monopoly power;
and(c)promotes a competitive market for
natural gas in which customers maychoose
suppliers, including producers, retailers and traders; and(d)provides rights of access to natural
gas pipelines on conditions that are fairand reasonable
for both Service Providers and Users; and(e)provides for resolution of disputes.Under the Code, the owner or operator of a
Pipeline that is Covered under the Codeis required to
lodge an Access Arrangement with the Relevant Regulator. The
AccessArrangement is similar in many respects to
an undertaking under Part IIIA of theTrade Practices
Act and is designed to allow the owner or operator of the
CoveredPipeline to develop its own Tariffs and
other terms and conditions under which accesswill be made
available, subject to the requirements of the Code. The
RelevantRegulator will seek comments on the Access
Arrangement and then may either acceptit or reject it
and specify amendments it requires to be made to the AccessArrangement. If rejected, the Access
Arrangement must be modified and resubmitted.Under certain
circumstances, the Relevant Regulator may draft and approve its
ownAccess Arrangement. The legislation which
implements the Code provides foradministrative
review of certain regulatory decisions made under the Code.Important features of the Code are:•Coverage - the mechanism by which
Pipelines (including distributionsystems) become
subject to the Code;•reliance on an
up-front Access Arrangement outlining Services and ReferenceTariffs applicable to a Covered
Pipeline;•pricing principles;•ring fencing;•information disclosure requirements;•binding arbitration where there is a
dispute; and•specific timelines for all
processes.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
20021
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsThe aim of the
Code is to provide sufficient prescription so as to reduce
substantiallythe number of likely arbitrations, while at
the same time incorporating enoughflexibility for
the parties to negotiate contracts within an appropriate framework.
TheCode has also been designed to provide a
clear national access regime, withconsistency
between different jurisdictions.This
introduction to the Code and the overview in italics at the
beginning of eachsection of the Code do not form part of the
Code but in certain circumstances regardmay be had to
them in interpreting the Code (see Sections 10.4 and 10.5).1—COVERAGEThis section of
the Code describes the kinds of gas infrastructure which are
subject to the Codeand the basis on which particular
infrastructure is or may become subject to the Code.In
relation to the first issue, the scope of the Code is limited to
Pipelines used for the haulageof Natural Gas.
The definition of Pipeline includes gas transmission pipelines and
distributionnetworks and related facilities, but
excludes upstream facilities.In relation to
the second issue, a Pipeline may become Covered in one of four
ways.•Schedule A lists the Pipelines which
are automatically Covered by the Code(section
1.1).•In relation to other Pipelines, a case
by case approach applies under which specificcriteria are
applied to individual Pipelines to determine whether they are
Covered(sections 1.2–1.19).•In
addition, where a Pipeline is not Covered a Service Provider may
itself requestCoverage by proposing an Access Arrangement
for the Pipeline to the RelevantRegulator for
approval (sections 1.20 and 2.3).•Finally, if a competitive tender process
approved by the Relevant Regulator is used toselect the
Service Provider for a new Pipeline, that new Pipeline will be
Covered fromthe time the Relevant Regulator approves the
outcome of the competitive tender(section
1.21).The Code accordingly provides a high degree
of certainty for the Pipelines identified inSchedule A,
while retaining the flexibility to bring in other or new Pipelines
on a case-by-casebasis. Additional flexibility to respond to
changing circumstances exists as a result of thepotential for Coverage to be Revoked where
the criteria for Coverage cease to be satisfied.In
simple terms, the process for case by case Coverage is as
follows:•any person may seek Coverage of a
Pipeline by applying to the National CompetitionCouncil (theNCC);•the NCC
publishes a public notice on the application and seeks submissions,
includingfrom the Service Provider;•the NCC considers the submissions and
makes a recommendation to the RelevantMinister,
applying specified criteria; and•the
Relevant Minister considers the recommendation and decides on
Coverage.2This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2The termPipelineis defined in
the Gas Pipelines Access Law to include part of a Pipeline.Consequently, an application can be made for
the Coverage of the whole or any part of aPipeline
provided the Pipeline or the relevant part of the Pipeline is owned
or operated by thesame Service Provider or group of Service
Providers.The process for Revocation is similar to the
process for Coverage.As a decision to Cover a Pipeline or
revoke Coverage of a Pipeline can have majorcommercial
implications for the Service Provider and Prospective Users, the
Gas PipelinesAccess Law provides a mechanism for review
of the decision by the Relevant Appeals Body.An
extensions/expansions policy in the Access Arrangement for a
Covered Pipeline will definewhen an
extension to, or expansion of the Capacity of, a Covered Pipeline
will be treated aspart of the same Covered Pipeline and when
that extension or expansion is to be regarded as aseparate Pipeline which may be the subject
of a separate Coverage application.Pipelines in
Schedule A are Covered1.1Each Pipeline
listed in Schedule A is a Covered Pipeline from the date ofcommencement of the Code.NCC
to Recommend on an Application for Coverage1.2Pipelines other than those listed in
Schedule A may become Covered after thecommencement of
the Code where a person applies to the NCC for the Pipeline to
beCovered and, after receiving a
recommendation from the NCC, the Relevant Ministerdecides that the Pipeline should be
Covered.1.3Any person, including the Relevant
Regulator, may make an application to the NCCrequesting that
a particular Pipeline be Covered. A single application may be
madeunder this section 1.3 for the Coverage of
the whole or any part of a Pipeline, providedthat all of that
Pipeline, or all of that part of a Pipeline, is owned or operated
by thesame Service Provider or group of Service
Providers. The NCC may publishguidelines
concerning the form and content of Coverage applications and
specifyingthe amount of any fee to be paid on the
making of an application. If it does so,applications
must be made in accordance with those guidelines.1.4When the NCC receives an application
under section 1.3 the NCC must:(a)if
it considers that the application has been made on trivial or
vexatiousgrounds, reject the application without
further consideration; and(b)in all other
cases within 14 days after receipt of the application:(i)inform the Service Provider and each
other person known to theNCC who the NCC believes has a
sufficient interest in the matterthat it has
received the application; and(ii)publish a notice in a national daily
newspaper which at least:(A)describes the
Pipeline to which the application relates;(B)states how copies of the application may be
obtained; and(C)requests submissions within 21 days
after the date of thenotice.1.5The
NCC must provide a copy of the application to any person within 7
days after theperson requests a copy and pays any
reasonable fee required by the NCC.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 20023
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems1.6Within 35 days (but not earlier than 21
days) after the day on which a notice ispublished under
section 1.4(b), the NCC must prepare a draft recommendation on
theapplication and provide a copy of the draft
recommendation to the applicant, theService
Provider, each person who made a submission and any other person
whorequests a copy. In preparing the draft
recommendation the NCC must consider anysubmissions
received within the time specified in the notice published
undersection 1.4(b) and it may (but is not
obliged to) consider any submissions receivedafter that
time.1.7Within 28 days (but not earlier than
14 days) after the day on which its draftrecommendation
became publicly available, the NCC must submit a
recommendationto the Relevant Minister:(a)that the Pipeline be Covered;
or(b)that the Pipeline not be
Covered.If the NCC recommends that the Pipeline be
Covered, the NCC may do so to a greateror lesser extent
than requested by the applicant if, having regard to the part of
thePipeline that is necessary to provide
Services that Prospective Users may seek, theNCC considers it
appropriate. The NCC may not recommend Coverage of a greaterpart
of a Pipeline than is owned or operated by the same Service
Provider or group ofService Providers.1.8In
forming its recommendation the NCC must consider any submissions
received fromthe Service Provider, the applicant or any
other person within 14 days after the date onwhich its draft
recommendation became publicly available and it may (but is
notobliged to) consider submissions received
after that time.1.9Subject to sections 1.4(a) and 1.10,
the NCC must recommend that the Pipeline beCovered (either
to the extent described, or to a greater or lesser extent than
thatdescribed, in the application) if the NCC is
satisfied of all of the following matters,and cannot
recommend that the Pipeline be Covered, to any extent, if the NCC
is notsatisfied of one or more of the following
matters:(a)that access (or increased access) to
Services provided by means of thePipeline would
promote competition in at least one market (whether or not
inAustralia), other than the market for the
Services provided by means of thePipeline;(b)that it would be uneconomic for anyone
to develop another Pipeline toprovide the
Services provided by means of the Pipeline;(c)that
access (or increased access) to the Services provided by means of
thePipeline can be provided without undue risk
to human health or safety; and(d)that
access (or increased access) to the Services provided by means of
thePipeline would not be contrary to the public
interest.1.10At any time
prior to the NCC making a recommendation the relevant Service
Providermay notify the NCC that it agrees to
Coverage of the Pipeline to the same extent asspecified in the
application. The NCC may then recommend that the Pipeline beCovered to the same extent as specified in
the application without considering thematters set out
in paragraphs (a) to (d) of section 1.9. The NCC must forward
theService Provider's notice to the Relevant
Minister with its recommendation.4This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 21.11The
NCC must provide a copy of its recommendation and the reasons for
therecommendation to the Service Provider, the
applicant, each person who made asubmission and
any other person who requests a copy.1.12The
applicant may withdraw the application by notice to the NCC at any
time beforethe Relevant Minister makes a decision
concerning Coverage of the Pipeline.Relevant
Minister to Decide on a Coverage Recommendation1.13Within 21 days after a Coverage
recommendation is received by the RelevantMinister, the
Relevant Minister must make a decision:(a)that
the Pipeline is Covered; or(b)that
the Pipeline is not Covered.If the Relevant
Minister decides that the Pipeline is Covered, the Relevant
Ministermay do so to a greater or lesser extent than
requested by the applicant if, having regardto the part of
the Pipeline that is necessary to provide Services that Prospective
Usersmay seek, the Relevant Minister considers it
appropriate. The Relevant Minister maynot decide that
a greater part of a Pipeline is Covered than is owned or operated
by thesame Service Provider or group of Service
Providers.1.14The Relevant
Minister may require the NCC to provide such information, reports
andother assistance as the Relevant Minister
considers appropriate for the purpose ofconsidering the
application.1.15Subject to
section 1.16, the Relevant Minister must decide that the Pipeline
is Covered(either to the extent described, or to a
greater or lesser extent than that described, inthe
application) if the Relevant Minister is satisfied of all of the
matters set out inparagraphs (a) to (d) of section 1.9, but
the Relevant Minister cannot decide that thePipeline is
Covered, to any extent, if not satisfied of one or more of those
matters.1.16If the NCC
receives a notice under section 1.10, the Relevant Minister may
decide thatthe Pipeline is a Covered Pipeline without
considering the matters set out inparagraphs (a)
to (d) of section 1.9.1.17Promptly after
making a decision the Relevant Minister must provide a copy of
thedecision and reasons for the decision to the
NCC, the Relevant Regulator, the ServiceProvider, the
applicant, each person who made a submission to the NCC and any
otherperson who requests a copy.1.18The decision on
Coverage and the notice and reasons referred to in section 1.17
mustcontain a detailed description of the
Pipeline the subject of the decision.1.19The
decision on Coverage is subject to review by the Relevant Appeals
Body underthe Gas Pipelines Access Law. Subject to the
Gas Pipelines Access Law, a decision onCoverage has
effect on the date specified by the Relevant Minister, which date
mustnot be earlier than 14 days after the day
the decision was made.Pipelines subject to Access
Arrangements submitted under section 2.3 are Covered1.20A Pipeline which
is subject to an Access Arrangement submitted under section 2.3
isCovered from the date that the Access
Arrangement becomes effective until the expirydate, if any, as
contemplated under section 3.20. An application may be made
undersection 1.3 requesting that such a Pipeline
remain Covered after the AccessArrangement
expires if the period from the date of the application to the date
on whichthe Access Arrangement expires is not more
than 90 days.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
20025
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsNew Pipelines
the subject of an approved competitive tender are Covered1.21If the Relevant
Regulator makes a decision under section 3.32 approving the
outcomeof a competitive tender the Pipeline
concerned shall be a Covered Pipeline from thetime of that
decision.Prospective Service Provider may seek
Opinion of NCC1.22A Prospective
Service Provider may request an opinion from the NCC as to whether
aproposed Pipeline would meet the criteria
for Coverage in section 1.9.1.23The
NCC may provide an opinion in response to a request under section
1.22 but theopinion does not bind the NCC in relation to
any subsequent application for Coverageof the
Pipeline.Revocation of Coverage1.24Pipelines listed in Schedule A and Pipelines
that have become Covered after thecommencement of
the Code may cease to be Covered where a person applies to
theNCC for Coverage of the Covered Pipeline to
be revoked and, after receiving arecommendation
from the NCC, the Relevant Minister determines that Coverage
ofthe Covered Pipeline should be
revoked.1.25Any person,
including the Relevant Regulator, may make an application to the
NCCrequesting that Coverage of a particular
Covered Pipeline be revoked. The NCC maypublish
guidelines concerning the form and content of revocation
applications andspecifying the amount of any fee to be paid
on the making of an application. If it doesso, applications
must be made in accordance with those guidelines.1.26When the NCC
receives an application it must:(a)(except where the application has been made
by the Relevant Regulator) if itconsiders that
the application has been made on trivial or vexatious
grounds,reject the application without further
consideration;(b)in all other cases within 14 days
after the receipt of the application:(i)inform the Service Provider and each other
person known to theNCC who the NCC believes has a sufficient
interest in the matterthat it has received the application;
and(ii)publish a notice
in a national daily newspaper which at least:(A)describes the Covered Pipeline to which the
applicationrelates;(B)states how copies of the application may be
obtained; and(C)requests submissions within 21 days
after the date of thenotice.1.27The
NCC must provide a copy of the application to any person within 7
days after theperson requests a copy and pays any
reasonable fee required by the NCC.6This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 21.28Within 35 days (but not earlier than 21
days) after the day on which a notice ispublished under
section 1.26(b), the NCC must prepare a draft recommendation on
theapplication and provide a copy of the draft
recommendation to the Service Provider,the applicant,
each person who made a submission and any other person who
requestsa copy. In preparing the draft
recommendation the NCC must consider anysubmissions
received within the time specified in the notice published under
section1.26(b) and it may (but is not obliged to)
consider any submissions received after thattime.1.29Within 28 days
(but not earlier than 14 days) after the day on which its
draftrecommendation became publicly available,
the NCC must submit a recommendationto the Relevant
Minister:(a)that Coverage of the Covered Pipeline
be revoked; or(b)that Coverage of the Covered Pipeline
not be revoked.If the NCC recommends that Coverage of the
Covered Pipeline be revoked, it may doso to a greater
or lesser extent than requested by the applicant if, having regard
to thepart of the Covered Pipeline that is
necessary to provide services that ProspectiveUsers may seek,
the NCC considers it appropriate.1.30In
forming its recommendation the NCC must consider any submissions
received fromthe Service Provider, the applicant or any
other person within 14 days after the date onwhich its draft
recommendation became publicly available and it may (but is
notobliged to) consider any submissions
received after that time.1.31Subject to
section 1.26(a), the NCC cannot recommend that Coverage of the
CoveredPipeline be Revoked, to any extent, if the
NCC is satisfied of all of the matters set outin paragraphs
(a) to (d) of section 1.9, but the NCC must recommend that Coverage
ofthe Covered Pipeline be revoked (either to
the extent described, or to a greater orlesser extent
than that described, in the application) if the NCC is not
satisfied of oneor more of those matters.1.32The NCC must
provide a copy of its recommendation and the reasons for therecommendation to the Service Provider, the
applicant, each person who made asubmission and
any other person who requests a copy.1.33The
applicant may withdraw the application by notice to the NCC at any
time beforethe Relevant Minister makes a decision
concerning revocation of Coverage of theCovered
Pipeline.Relevant Minister to Decide on a Revocation
Recommendation1.34Within 21 days
after a revocation recommendation is received by the
RelevantMinister, the Relevant Minister must make a
decision:(a)that Coverage of the Covered Pipeline
is revoked; or(b)that Coverage of the Covered Pipeline
is not revoked.If the Relevant Minister decides that
Coverage of the Covered Pipeline is revoked, theRelevant Minister may do so to a greater or
lesser extent than requested by theapplicant if,
having regard to the part of the Pipeline that is necessary to
provideServices that Prospective Users may seek,
the Relevant Minister considers itappropriate.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 20027
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems1.35The
Relevant Minister may require the NCC to provide such information,
reports andother assistance as the Relevant Minister
considers appropriate for the purpose ofconsidering the
application.1.36The Relevant
Minister must decide not to revoke Coverage of the Covered
Pipeline, toany extent, if the Relevant Minister is
satisfied of all of the matters set out inparagraphs (a)
to (d) of section 1.9, but the Relevant Minister must decide to
revokeCoverage of the Covered Pipeline (either to
the extent described, or to a greater orlesser extent
than that described, in the application) if not satisfied of one or
more ofthose matters.1.37Promptly after making a decision the
Relevant Minister must provide a copy of thedecision and
reasons for the decision to the NCC, the Relevant Regulator, the
ServiceProvider, the applicant, each person who
made a submission to the NCC and any otherperson who
requests a copy.1.38The decision on
revocation and the notice and reasons referred to in section 1.37
must,if the decision is to revoke Coverage for
part or all of the Covered Pipeline, contain adetailed
description of the Covered Pipeline the subject of the
decision.1.39A decision on
revocation is subject to review by the Relevant Appeals Body under
theGas Pipelines Access Law. Subject to the Gas
Pipelines Access Law, the decision onrevocation has
effect on the date specified by the Relevant Minister, which date
mustnot be earlier than 14 days after the day
the decision was made.Extensions/Expansions of a Covered
Pipeline1.40An extension to,
or expansion of the Capacity of, a Covered Pipeline shall be
treatedas part of the Covered Pipeline for all
purposes under the Code if theExtensions/Expansions Policy contained in
the Access Arrangement for that CoveredPipeline
provides for that extension or expansion to be treated as part of
the CoveredPipeline.1.41The
Service Provider must notify the Code Registrar of any extension
to, or expansionof the Capacity of, a Covered Pipeline which
is to be treated as part of the CoveredPipeline
pursuant to section 1.40 when the extension or expansion would
require anamendment to the description of the Covered
Pipeline on the Public Register in orderfor that
description to remain an accurate description of the Covered
Pipeline.2—ACCESS ARRANGEMENTSWhere a Pipeline
is Covered, this section of the Code requires a Service Provider to
establishan Access Arrangement to the satisfaction of
the Relevant Regulator for that Covered Pipeline.An
Access Arrangement is a statement of the policies and the basic
terms and conditions whichapply to third party access to a
Covered Pipeline. The Service Provider and a User orProspective User are free to agree to terms
and conditions that differ from the AccessArrangement
(with the exception of the Queuing Policy). If an access dispute
arises, however,and is referred to the Relevant Regulator,
the Relevant Regulator (or any other Arbitrator itappoints) must apply the provisions of the
Access Arrangement in resolving the dispute. If aPipeline is not Covered a Service Provider
may voluntarily propose an Access Arrangement tothe
Relevant Regulator for approval. Upon approval the Pipeline becomes
a Covered Pipeline.8This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2An Access
Arrangement must be submitted to the Relevant Regulator for
approval. TheRelevant Regulator may approve an Access
Arrangement only if the Access Arrangementsatisfies the
minimum requirements set out in section 3. The Relevant Regulator
must notrefuse to approve an Access Arrangement
solely for the reason that the proposed AccessArrangement does
not address a matter that section 3 does not require an Access
Arrangementto address. Subject to this limit, the
Relevant Regulator has a broad discretion to refuse toaccept an Access Arrangement. If section 3
permits a range of outcomes on a particular issue(for
example, any Revisions Commencement Date is permitted), the
Relevant Regulator mayreject an outcome proposed by the
Service Provider which is within the permitted range andrequire a particular outcome be included in
the Access Arrangement (for example, a particularRevisions Commencement Date).An
Access Arrangement submitted to the Relevant Regulator for approval
must beaccompanied by Access Arrangement
Information. Access Arrangement Information shouldenable Users and Prospective Users to
understand the derivation of the elements of theproposed Access Arrangement and form an
opinion as to the compliance of the AccessArrangement with
the Code. The Access Arrangement Information must include the
categoriesof information identified in Attachment A to
the Code.The process whereby a compulsory Access
Arrangement is approved can be summarised asfollows:•The Service Provider submits a
proposed Access Arrangement, together with theAccess
Arrangement Information, to the Relevant Regulator.•The Relevant Regulator may require the
Service Provider to amend and resubmit theAccess
Arrangement Information.•The Relevant
Regulator publishes a public notice and seeks submissions on
theapplication.•The
Relevant Regulator considers the submissions, issues a draft
decision and then,after considering any submissions received
on the draft, makes a final decision whicheither:-approves the proposed Access
Arrangement; or-does not approve the proposed Access
Arrangement and states the revisionsto the Access
Arrangement which would be required before the RelevantRegulator would approve it; or-approves a revised Access Arrangement
submitted by the Service Providerwhich
incorporates amendments specified by the Relevant Regulator in
itsdraft decision.•If
the Relevant Regulator does not approve the Access Arrangement, the
ServiceProvider may propose an amended Access
Arrangement which incorporates therevisions
required by the Relevant Regulator. If the Service Provider does
not do so,the Relevant Regulator can impose its own
Access Arrangement.•The Gas Pipeline Access Law provides a
mechanism for the review of a decision bythe Relevant
Regulator to impose an Access Arrangement.A similar
process applies in relation to voluntary Access Arrangements,
except that the ServiceProvider may withdraw the application
at any time prior to approval of the AccessArrangement and
the Relevant Regulator may only approve or disapprove the
AccessArrangement; it may not impose its own
Access Arrangement.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
20029
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsAn Access
Arrangement must include a date for review. In addition, changes to
an AccessArrangement may be made before a review date
if the Relevant Regulator and the ServiceProvider agree.
In either case if revisions to the Access Arrangement are proposed,
a processof public consultation and approval by the
Relevant Regulator, similar to that followed forapproving a compulsory Access Arrangement,
must be followed. The Relevant Regulator may,however,
dispense with public consultation if changes proposed between
reviews aresufficiently minor.Submission of
Access Arrangements2.1The Relevant Regulator may at any time
prepare and release for public comment,discussion or
issues papers and hold public consultations concerning any
matterrelevant to its functions under the
Code.2.2If a Pipeline is Covered, the Service
Provider must submit a proposed AccessArrangement
together with the applicable Access Arrangement Information for
theCovered Pipeline to the Relevant
Regulator:(a)within 90 days after the Pipeline
becomes Covered under section 1.19 or 1.21if the Covered
Pipeline is not described in Schedule A; or(b)within 90 days after the commencement of the
Code if the Covered Pipelineis described in
Schedule A.2.3If a Pipeline is not Covered, a
Service Provider may (or, in respect of a proposedPipeline, a Prospective Service Provider
may) apply to the Relevant Regulator forapproval of an
Access Arrangement by submitting the proposed Access
Arrangementto the Relevant Regulator together with the
applicable Access ArrangementInformation. In
sections 2.4 to 2.27 (inclusive) the termService
Providerincludes aProspective
Service Provider. In section 2.24 the termCovered
Pipelineincludes thePipeline the
subject of an Access Arrangement submitted under this section
2.3.2.4If the Relevant Regulator so requires
by a notice in writing (which may be given eitherbefore or after the Service Provider submits
an Access Arrangement), the ServiceProvider must
submit separate Access Arrangements (together with AccessArrangement Information) for different parts
of the Covered Pipeline as specified bythe Relevant
Regulator, so that the separate Access Arrangements in total apply
to thewhole of the Covered Pipeline. The Service
Provider may (if the Relevant Regulatoragrees)
voluntarily submit separate Access Arrangements (together with
AccessArrangement Information) for different parts
of the Covered Pipeline, so that theseparate Access
Arrangements in total apply to the whole of the Covered Pipeline.
Ifseparate Access Arrangements are submitted
in accordance with this clause each partof a Pipeline
that is the subject of an Access Arrangement will be treated as a
separateCovered Pipeline for all purposes under the
Code.2.5An Access Arrangement may include any
relevant matter but must include at least theelements
described in sections 3.1 to 3.20.2.6Access Arrangement Information must contain
such information as in the opinion ofthe Relevant
Regulator would enable Users and Prospective Users to understand
thederivation of the elements in the proposed
Access Arrangement and to form anopinion as to
the compliance of the Access Arrangement with the provisions of
theCode.2.7The
Access Arrangement Information may include any relevant information
but mustinclude at least the categories of
information described in Attachment A.10This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 22.8Information included in Access Arrangement
Information, including information of atype described
in Attachment A, may be categorised or aggregated to the
extentnecessary to ensure the disclosure of the
information is, in the opinion of the RelevantRegulator, not
unduly harmful to the legitimate business interests of the
ServiceProvider or a User or Prospective User.
However, nothing in this section 2.8 limits theRelevant
Regulator's power under the Gas Pipelines Access Law to
obtaininformation, including information in an
uncategorised or unaggregated form.Public
Consultation and Approval2.9At any time
after the receipt of the applicable Access Arrangement Information
undersection 2.2 or 2.3 and before a decision is
made to approve an Access Arrangement,the Relevant
Regulator:(a)may, of its own volition, require the
Service Provider to make changes to theAccess
Arrangement Information if the Relevant Regulator is not
satisfiedthat the Access Arrangement Information
meets the requirements of sections2.6 and 2.7;
and(b)must, if requested to do so by any
person, consider whether the AccessArrangement
Information meets the requirements of sections 2.6 and 2.7
anddecide whether or not to require the Service
Provider to make changes to theAccess
Arrangement Information accordingly.If the Relevant
Regulator requires the Service Provider to make changes to the
AccessArrangement Information it must specify the
reasons for its decision and must specifya reasonable
time by which the proposed Access Arrangement Information
thatrectifies the matters identified by the
Relevant Regulator must be resubmitted. TheRelevant
Regulator must not require information to be included in
AccessArrangement Information the release of which
in the Relevant Regulator's opinioncould be unduly
harmful to the legitimate business interests of the Service
Provider ora User or Prospective User. If the Relevant
Regulator requires the Service Provider tomake changes to
the Access Arrangement Information, the Service Provider
mustsubmit Access Arrangement Information
amended as required by the RelevantRegulator, by
the date specified by the Relevant Regulator.2.10After receiving a proposed Access
Arrangement the Relevant Regulator must:(a)inform each person known to the Relevant
Regulator who the RelevantRegulator believes has a sufficient
interest in the matter that it has receivedthe proposed
Access Arrangement and Access Arrangement Information; and(b)publish a notice in a national daily
newspaper which at least:(i)describes the
Covered Pipeline to which the proposed AccessArrangement
relates;(ii)states how
copies of the proposed Access Arrangement and theAccess Arrangement Information may be
obtained; and(iii)requests
submissions by a date specified in the notice.2.11The
Relevant Regulator must provide a copy of the proposed Access
Arrangement andthe Access Arrangement Information to any
person within 7 days after the personrequests a copy
and pays any reasonable fee required by the Relevant
Regulator.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200211
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems2.12The
Relevant Regulator must consider any submissions received by the
date specifiedin the notice published under section
2.10(b) and it may (but is not obliged) toconsider any
submissions received after that date.2.13After considering submissions received by
the date specified in the notice publishedunder section
2.10(b) the Relevant Regulator must issue a draft decision which
either:(a)proposes to approve the Access
Arrangement; or(b)proposes not to approve the Access
Arrangement and states the amendments(or nature of
the amendments) which would have to be made to the AccessArrangement in order for the Relevant
Regulator to approve it.2.14The Relevant
Regulator must:(a)provide a copy of its draft decision
to the Service Provider, any person whomade a
submission on the matter and any other person who requests a
copy;and(b)request
submissions from persons to whom it provides the draft decision by
adate specified by the Relevant
Regulator.2.15The Relevant
Regulator must consider any submissions received by the date
specifiedby the Relevant Regulator under section 2.14
and it may (but is not obliged) toconsider any
submissions received after that date.2.16After considering submissions received by
the date specified by the RelevantRegulator under
section 2.14, the Relevant Regulator must issue a final
decisionwhich:(a)approves the Access Arrangement; or(b)does not approve the Access
Arrangement and states the amendments (ornature of the
amendments) which would have to be made to the AccessArrangement in order for the Relevant
Regulator to approve it and the date bywhich a revised
Access Arrangement must be resubmitted by the ServiceProvider; or(c)approves a revised Access Arrangement
submitted by the Service Providerwhich the
Relevant Regulator is satisfied incorporates the amendmentsspecified by the Relevant Regulator in its
draft decision.2.17The Relevant
Regulator must provide a copy of its final decision to the
ServiceProvider, any person who made a submission
on the matter and any other person whorequests a
copy.2.18If the Relevant
Regulator decides not to approve the Access Arrangement
undersection 2.16(b), the Service Provider must
by the date specified by the RelevantRegulator under
section 2.16(b) submit a revised Access Arrangement to the
RelevantRegulator.2.19If
the Service Provider submits a revised Access Arrangement by the
date specified bythe Relevant Regulator under section
2.16(b), which the Relevant Regulator issatisfied
incorporates the amendments specified by the Relevant Regulator in
its finaldecision, the Relevant Regulator must issue
a final decision that approves the revisedAccess
Arrangement.12This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 22.20If
the Service Provider does not submit a revised Access Arrangement
by the datespecified by the Relevant Regulator under
section 2.16(b) or submits a revised AccessArrangement
which the Relevant Regulator is not satisfied incorporates
theamendments specified by the Relevant
Regulator in its final decision, the RelevantRegulator
must:(a)in the case of an Access Arrangement
submitted under section 2.2, draft andapprove its own
Access Arrangement, instead of the Access Arrangementproposed by the Service Provider; or(b)in the case of an Access Arrangement
submitted voluntarily under section 2.3,not approve the
Access Arrangement.2.21The Relevant
Regulator must issue a final decision under section 2.16 (and
sections2.19 and 2.20, if applicable) within six
months of receiving a proposed AccessArrangement. The
Relevant Regulator must also ensure that:(a)there is a period of at least 28 days
between the publication of a notice undersection 2.10(b)
and the last day for submissions specified in that notice;
and(b)there is a period of at least 14 days
between the publication of a draft decisionunder section
2.14 and the last day for submissions on the draft decisionspecified by the Relevant Regulator;
and(c)there is a period of at least 14 days
between the publication of a final decisionunder section
2.16(b) and the date specified by the Relevant Regulator as
thelast day for the Service Provider to submit
a revised Access Arrangement.In all other
respects the timing for the taking of each of the steps set out in
sections2.9, 2.10 and 2.12 to 2.20 (inclusive) is a
matter for the Relevant Regulator todetermine.2.22The
Relevant Regulator may increase the period of six months specified
in section2.21 by periods of up to two months on one
or more occasions provided it publishes ina national
newspaper notice of the decision to increase the period.2.23If a Service
Provider fails to submit a proposed Access Arrangement within the
timerequired under section 2.2, the Relevant
Regulator may draft and approve its ownAccess
Arrangement. Before approving its own Access Arrangement under
thissection 2.23 the Relevant Regulator
must:(a)prepare an information package which,
to the extent practicable, meets therequirements of
sections 2.6 and 2.7; and(b)follow the
process set out in sections 2.10 to 2.15 (inclusive) to the
extentpracticable as though the Access Arrangement
drafted by the RelevantRegulator had been proposed by the
Service Provider and the informationpackage prepared
by the Relevant Regulator had been Access ArrangementInformation proposed by the Service
Provider.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200213
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems2.24The
Relevant Regulator may approve a proposed Access Arrangement only
if it issatisfied the proposed Access Arrangement
contains the elements and satisfies theprinciples set
out in sections 3.1 to 3.20. The Relevant Regulator must not refuse
toapprove a proposed Access Arrangement solely
for the reason that the proposedAccess
Arrangement does not address a matter that sections 3.1 to 3.20 do
not requirean Access Arrangement to address. In
assessing a proposed Access Arrangement, theRelevant
Regulator must take the following into account:(a)the
Service Provider's legitimate business interests and investment in
theCovered Pipeline;(b)firm
and binding contractual obligations of the Service Provider or
otherpersons (or both) already using the Covered
Pipeline;(c)the operational and technical
requirements necessary for the safe and reliableoperation of the Covered Pipeline;(d)the economically efficient operation
of the Covered Pipeline;(e)the public
interest, including the public interest in having competition
inmarkets (whether or not in
Australia);(f)the interests of Users and Prospective
Users;(g)any other matters that the Relevant
Regulator considers are relevant.2.25The
Relevant Regulator must not approve an Access Arrangement (or draft
andapprove its own Access Arrangement) any
provision of which would, if applied,deprive any
person of a contractual right in existence prior to the date the
proposedAccess Arrangement was submitted (or
required to be submitted), other than anExclusivity
Right which arose on or after 30 March 1995.2.26A
decision by the Relevant Regulator under section 2.20(a) or 2.23 is
subject toreview by the Relevant Appeals Body under
the Gas Pipelines Access Law. Subject tothe Gas
Pipelines Access Law, the Relevant Regulator's decision to approve
theproposed Access Arrangement has effect on
the date specified by the RelevantRegulator, which
date must be not less than 14 days after the day the decision
wasmade.2.27A
Service Provider may withdraw a proposed Access Arrangement
submitted undersection 2.3 at any time before it is
approved by the Relevant Regulator. In thosecircumstances
the Service Provider is not required to comply with a related
decisionmade under section 2.9.Review of an
Access Arrangement2.28By the date
provided for in the Access Arrangement as the Revisions Submission
Date(or as otherwise required by an Access
Arrangement), the Service Provider must, andat any other
time the Service Provider may, submit to the Relevant
Regulatorproposed revisions to the Access Arrangement
together with the applicable AccessArrangement
Information.2.29The Access
Arrangement as revised by the proposed revisions may include
anyrelevant matter but must include at least
the elements described in sections 3.1 to 3.20.14This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 22.30At
any time after receipt of the applicable Access Arrangement
Information undersection 2.28 and before a decision is made
to approve revisions to an AccessArrangement the
Relevant Regulator:(a)may, of its own volition, require the
Service Provider to make changes to theAccess
Arrangement Information if the Relevant Regulator is not
satisfiedthat the Access Arrangement Information
meets the requirements of sections2.6 and 2.7;
and(b)must, if requested to do so by any
person, consider whether the AccessArrangement
Information meets the requirements of sections 2.6 and 2.7
anddecide whether or not to require the Service
Provider to make changes to theAccess
Arrangement Information accordingly.If the Relevant
Regulator requires the Service Provider to make changes to the
AccessArrangement Information it must specify the
reasons for its decision and must specifya reasonable
time by which the proposed Access Arrangement Information
thatrectifies the matters identified by the
Relevant Regulator must be resubmitted. TheRelevant
Regulator must not require information to be included in the
AccessArrangement Information the release of which
in the Relevant Regulator's opinioncould be unduly
harmful to the legitimate business interests of the Service
Provider ora User or Prospective User. If the Relevant
Regulator requires the Service Provider tomake changes to
the Access Arrangement Information, the Service Provider
mustsubmit Access Arrangement Information
amended as required by the RelevantRegulator, by
the date specified by the Relevant Regulator.2.31After receiving a proposed revision to an
Access Arrangement the Relevant Regulatormust:(a)inform each person known to the
Relevant Regulator who the RelevantRegulator
believes has a sufficient interest in the matter that it has
receivedthe proposed revision to the Access
Arrangement and Access ArrangementInformation;
and(b)publish a notice in a national daily
newspaper which at least:(i)describes the
Covered Pipeline to which the proposed revisions to theAccess Arrangement relates;(ii)states how
copies of the revisions to the Access Arrangement and theAccess Arrangement Information may be
obtained; and(iii)requests
submissions by a date specified in the notice.2.32The
Relevant Regulator must provide a copy of the proposed revisions to
the AccessArrangement and the Access Arrangement
Information to any person within 7 daysafter the person
requests a copy and pays any reasonable fee required by the
RelevantRegulator.2.33The
Relevant Regulator may dispense with the requirement to produce
AccessArrangement Information in respect of
proposed revisions and may approve or notapprove the
proposed revisions without consultation with, or receiving
submissionsfrom, persons other than the Service
Provider if:(a)the revisions have been proposed by
the Service Provider other than asrequired by the
Access Arrangement; and[15.9.2006] This version is not
published under theLegislation Revision and Publication Act
200215
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems(b)the
Relevant Regulator considers that the revisions proposed are not
materialand will not result in changes to Reference
Tariffs or to the Services that areReference
Services.2.34The Relevant
Regulator must consider any submissions received by the date
specifiedin the notice published under section
2.31(b) and it may (but is not obliged) toconsider any
submissions received after that date.2.35After considering submissions received by
the date specified in the notice publishedunder section
2.31(b) the Relevant Regulator must issue a draft decision which
either:(a)proposes to approve the revisions to
the Access Arrangement; or(b)proposes not to
approve the revisions to the Access Arrangement andprovides reasons why the Relevant Regulator
proposes not to approve therevisions to the
Access Arrangement (and, if the revisions have beenproposed by the Service Provider as required
by the Access Arrangement,states the amendments (or nature of
the amendments) which would have to bemade to the
revisions in order for the Relevant Regulator to approve
them).2.36The Relevant
Regulator must:(a)provide a copy of its draft decision
to the Service Provider, any person whomade a
submission on the matter and any other person who requests a
copy;and(b)request
submissions on the draft decision from persons to whom it
providesthe draft decision by a date specified by
the Relevant Regulator.2.37The Relevant
Regulator must consider any submissions received by the date
specifiedby the Relevant Regulator under section 2.36
and it may (but is not obliged) toconsider
submissions received after that date.2.38After considering any submissions received
by the date specified by the RelevantRegulator under
section 2.36, the Relevant Regulator must issue a final
decisionwhich:(a)approves the revisions to the Access
Arrangement; or(b)does not approve the revisions to the
Access Arrangement and, if therevisions have
been proposed by the Service Provider as required by theAccess Arrangement, states the amendments
(or nature of the amendments)which would have
to be made to the revisions in order for the RelevantRegulator to approve them and the date by
which the amended revisions tothe Access
Arrangement must be resubmitted by the Service Provider; or(c)approves amended revisions to the
Access Arrangement submitted by theService Provider
which the Relevant Regulator is satisfied incorporate theamendments specified by the Relevant
Regulator in its draft decision.2.39The
Relevant Regulator must provide a copy of its final decision to the
ServiceProvider, any person who made a submission
on the matter and other any person whorequests a
copy.16This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 22.40If
the Relevant Regulator decides not to approve the revisions to the
AccessArrangement under section 2.38(b) the
Service Provider must, if the revisions itproposed were
proposed as required by the Access Arrangement, submit
amendedrevisions to the Relevant Regulator by the
date specified by the Relevant Regulatorunder section
2.38(b).2.41If the Service
Provider submits amended revisions to the Access Arrangement by
thedate specified by the Relevant Regulator
under section 2.38(b) which the RelevantRegulator is
satisfied incorporate the amendments specified by the Relevant
Regulatorin its final decision, the Relevant
Regulator must issue a final decision that approvesthe
amended revisions to the Access Arrangement.2.42If
the Service Provider does not submit amended revisions to the
Access Arrangementby the date specified by the Relevant
Regulator under section 2.38(b) or submitsamended
revisions which the Relevant Regulator is not satisfied incorporate
theamendments specified by the Relevant
Regulator in its final decision, the RelevantRegulator must
draft and approve its own revisions to the Access
Arrangement,instead of the revisions proposed by the
Service Provider.2.43The Relevant
Regulator must issue a final decision under section 2.38 (and
sections2.41 or 2.42 if applicable) within six
months of receiving proposed revisions to anAccess
Arrangement. The Relevant Regulator must also ensure that:(a)there is a period of at least 28 days
between the publication of a notice undersection 2.31(b)
and the last day for submissions specified in that notice;(b)there is a period of at least 14 days
between the publication of a draft decisionunder section
2.36(b) and the last day for submissions on the draft
decisionspecified by the Relevant Regulator;
and(c)there is a period of at least 14 days
between the publication of a final decisionunder section
2.38(b) and the date specified by the Relevant Regulator as
thelast day for the Service Provider to submit
amended revisions to the AccessArrangement.In all other
respects the timing for the taking of each of the steps set out in
sections2.30, 2.31 and 2.33 to 2.42 (inclusive) is a
matter for the Relevant Regulator todetermine.2.44The
Relevant Regulator may increase the period of six months specified
insection 2.43 by periods of up to two months
on one or more occasions provided itpublishes in a
national newspaper notice of the decision to increase the
period.2.45If the Service
Provider fails to submit revisions to an Access Arrangement as
requiredby the Access Arrangement, the Relevant
Regulator may draft and approve its ownrevisions to the
Access Arrangement. Before approving its own revisions to an
AccessArrangement under this section 2.45 the
Relevant Regulator must:(a)prepare an
information package which, to the extent practicable, meets
therequirements of sections 2.6 and 2.7;
and(b)follow the process set out in sections
2.31 to 2.37 to the extent practicable asthough the
revisions to the Access Arrangement drafted by the RelevantRegulator had been proposed by the Service
Provider and the informationpackage drafted
by the Relevant Regulator had been Access ArrangementInformation proposed by the Service
Provider.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200217
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems2.46The
Relevant Regulator may approve proposed revisions to an Access
Arrangementonly if it is satisfied the Access
Arrangement as revised would contain the elementsand
satisfy the principles set out in sections 3.1 to 3.20. The
Relevant Regulator mustnot refuse to approve proposed
revisions to the Access Arrangement solely for thereason that the Access Arrangement as
revised would not address a matter thatsections 3.1 to
3.20 do not require an Access Arrangement to address. In
assessingproposed revisions to the Access
Arrangement, the Relevant Regulator:(a)must
take into account the factors described in section 2.24; and(b)must take into account the provisions
of the Access Arrangement.2.47The Relevant
Regulator must not approve revisions to an Access Arrangement
(ordraft and approve its own revisions to an
Access Arrangement) if a provision of theAccess
Arrangement as revised would, if applied, deprive any person of a
contractualright in existence prior to the date the
revisions to the Access Arrangement weresubmitted (or
were required to be submitted), other than an Exclusivity Right
whicharose on or after 30 March 1995.2.48A decision by
the Relevant Regulator under section 2.42 or 2.45 is subject to
reviewby the Relevant Appeals Body under the Gas
Pipelines Access Law. Subject to theGas Pipelines
Access Law, revisions to an Access Arrangement come into effect
onthe date specified by the Relevant Regulator
in its decision to approve the revisions(which date must
not be earlier than either a date 14 days after the day the
decisionwas made or, except where the Service
Provider submitted the revisions voluntarily orbecause a
mechanism of a type referred to in section 3.18(a) included in the
AccessArrangement was triggered, the Revisions
Commencement Date).Changes to an Approved Access Arrangement
between Reviews2.49An Access
Arrangement which has become effective may only be changed pursuant
tothis section 2.Access
Arrangement not to limit Access2.50For
the avoidance of doubt, nothing (except for the Queuing Policy)
contained in anAccess Arrangement (including the
description of Services in a Services Policy)limits:(a)the Services a Service Provider can
agree to provide to a User or ProspectiveUser;(b)the Services which can be the subject
of a dispute under section 6;(c)the
terms and conditions a Service Provider can agree with a User
orProspective User; or(d)the
terms and conditions which can be the subject of a dispute
undersection 6.18This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2Previous Access
Arrangements2.51If an Access
Arrangement or Access Arrangement Information or both with respect
toa Covered Pipeline have been accepted by the
Relevant Regulator under the GasSupply Act 1996
(NSW) prior to the commencement of the Gas Pipeline Access
Lawin New South Wales a Service Provider need
not submit a proposed AccessArrangement in
accordance with section 2.2 with respect to the Covered
Pipelineconcerned. In such circumstances the Access
Arrangement or Access ArrangementInformation or
both accepted under the Gas Supply Act 1996 (NSW) shall be
deemedto have been accepted under this Code and to
be the Access Arrangement or AccessArrangement
Information with respect to the relevant Covered Pipeline for
allpurposes under this Code.2.52A Service
Provider need not submit a proposed Access Arrangement or
AccessArrangement Information in accordance with
section 2.2 with respect to a CoveredPipeline
where:(a)before the date on which this Code
takes effect, the Service Provider (or,where the
Service Provider does not at the relevant time yet exist, a
personable to represent and bind the future
Service Provider) has submitted aproposed Access
Arrangement with respect to the Covered Pipeline togetherwith
the applicable Access Arrangement Information (if relevant) to
theperson who is under this Code the Relevant
Regulator for that CoveredPipeline; and(b)that
Relevant Regulator, having:(i)in
substance done the things it would have been required to do
inrelation to the proposed Access Arrangement
and the applicableAccess Arrangement Information submitted in
accordance withsection 2.2; and(ii)certified in writing that those things have
been done,has approved the proposed Access Arrangement
and Access ArrangementInformation.In such
circumstances the proposed Access Arrangement and Access
ArrangementInformation shall be deemed to have been
accepted under this Code and to be theAccess
Arrangement and Access Arrangement Information with respect to
therelevant Covered Pipeline for all purposes
under this Code.3—CONTENT OF AN ACCESS ARRANGEMENTAn
Access Arrangement must, as a minimum, include the elements
described in section 3 of theCode. Section 3
establishes the following requirements:Services Policy
-An Access Arrangement must include a policy
on the Services to be offered.The Services
Policy must:•include a description of one or more
Services which are to be offered;•where reasonable and practical, allow
Prospective Users to obtain a Service thatincludes only
those elements that the User wishes to be included in the Service;
and•where reasonable and practical, allow
Prospective Users to obtain a separate tariff inregard to a separate element of a
Service.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200219
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsReference Tariff
-An Access Arrangement must contain one or
more Reference Tariffs (theRelevant
Regulator may require more than one Reference Tariff when
appropriate). AReference Tariff operates as a benchmark
tariff for a specific Service, in effect giving the Usera
right of access to the specific Service at the Reference Tariff,
and giving the Service Providerthe right to
levy the Reference Tariff for that Service. Ordinarily a Reference
Tariff must be setin accordance with the principles set out in
section 8.As an alternative it is possible to have
Reference Tariffs for a new Pipeline set by a competitivetender process. Any person may conduct a
competitive tender to determine Reference Tariffsfor
a new Pipeline (and a review date for those Reference Tariffs). The
person conducting atender must first obtain the approval of the
Relevant Regulator for the tender processproposed. Before
granting approval the Relevant Regulator must be satisfied, amongst
otherthings, that the successful tenderer will be
selected principally on the basis that the tender willdeliver the lowest sustainable tariffs to
users generally over the life of the proposed Pipeline.After the tender process has been conducted
and the successful tender selected, the personconducting the
tender must submit the outcome of the process to the Relevant
Regulator for theRelevant Regulator's final approval. Before
granting final approval the Relevant Regulatormust be
satisfied, amongst other things, that the tender process proposed
was followed andthat the successful tenderer was selected in
accordance with the selection criteria set out in thetender approval request. Once final approval
is granted the Reference Tariffs proposed by thesuccessful tenderer will become the
Reference Tariffs for the proposed Pipeline.It is intended
that by using this process, Reference Tariffs will have been set in
a competitivemarket and will therefore naturally achieve
the objectives in section 8.1.Terms and
Conditions -An Access Arrangement must include the terms
and conditions onwhich the Service Provider will supply each
Reference Service.Capacity Management Policy -An
Access Arrangement must state whether the CoveredPipeline is a Contract Carriage Pipeline or
a Market Carriage Pipeline.Trading Policy
-An Access Arrangement for a Contract
Carriage Pipeline must include apolicy on the
trading of capacity. The Trading Policy must, amongst other things,
allow a Userto transfer capacity:•without the Service Provider's consent, if
the contract between the User and theService Provider
is unaltered by the Transfer; and•with
the Service Provider's consent, in any other case. Consent may be
withheld onlyon reasonable commercial or technical
grounds.Queuing Policy -An Access
Arrangement must include a policy for defining the priority
thatProspective Users have to negotiate for
specific Capacity (a Queuing Policy).Extensions/Expansions Policy -An
Access Arrangement must include a policy setting out amethod for determining whether an extension
or expansion to the Covered Pipeline is or is notto
be treated as part of the Covered Pipeline for the purposes of the
Code.Review Date -An Access
Arrangement must include a date on or by which revisions to
theAccess Arrangement must be submitted and a
date on which the revised Access Arrangement isintended to
commence.Services to be Offered3.1An
Access Arrangement must include a policy on the Service or Services
to be offered(aServices Policy).20This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 23.2The
Services Policy must comply with the following principles:(a)The Access Arrangement must include a
description of one or more Servicesthat the Service
Provider will make available to Users or Prospective Users,including:(i)one
or more Services that are likely to be sought by a significant
partof the market; and(ii)any
Service or Services which in the Relevant Regulator's
opinionshould be included in the Services
Policy.(b)To the extent practicable and
reasonable, a User or Prospective User must beable to obtain a
Service which includes only those elements that the User orProspective User wishes to be included in
the Service.(c)To the extent practicable and
reasonable, a Service Provider must provide aseparate Tariff
for an element of a Service if this is requested by a User
orProspective User.Reference
Tariffs and Reference Tariff Policy3.3An
Access Arrangement must include a Reference Tariff for:(a)at least one Service that is likely to
be sought by a significant part of themarket;
and(b)each Service that is likely to be
sought by a significant part of the market andfor which the
Relevant Regulator considers a Reference Tariff should beincluded.3.4Unless a Reference Tariff has been
determined through a competitive tender processas outlined in
sections 3.21 to 3.36, an Access Arrangement and any Reference
Tariffincluded in an Access Arrangement must, in
the Relevant Regulator's opinion, complywith the
Reference Tariff Principles described in section 8.3.5An Access Arrangement must also
include a policy describing the principles that areto
be used to determine a Reference Tariff (aReference Tariff
Policy). A ReferenceTariff Policy
must, in the Relevant Regulator's opinion, comply with the
ReferenceTariff Principles described in section
8.Terms and Conditions3.6An
Access Arrangement must include the terms and conditions on which
the ServiceProvider will supply each Reference Service.
The terms and conditions included must,in the Relevant
Regulator's opinion, be reasonable.Capacity
Management Policy3.7An Access Arrangement must include a
statement (aCapacity Management Policy)that the Covered Pipeline is
either:(a)a Contract Carriage Pipeline;
or(b)a Market Carriage Pipeline.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200221
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems3.8The
Relevant Regulator must not accept an Access Arrangement which
states that theCovered Pipeline is a Market Carriage
Pipeline unless the Relevant Minister of eachScheme
Participant in whose Jurisdictional Area the Pipeline is wholly or
partlylocated has given a notice to the Relevant
Regulator permitting the Covered Pipelineto be a Market
Carriage Pipeline.Trading Policy3.9The
Access Arrangement for a Covered Pipeline which is described in the
AccessArrangement as a Contract Carriage Pipeline
must include a policy that explains therights of a User
to trade its right to obtain a Service to another person (aTradingPolicy).3.10The Trading
Policy must comply with the following principles:(a)A User must be permitted to transfer
or assign all or part of its ContractedCapacity without
the consent of the Service Provider concerned if:(i)the User's obligations under the
contract with the Service Providerremain in full
force and effect after the transfer or assignment; and(ii)the terms of the
contract with the Service Provider are not altered asa
result of the transfer or assignment (aBare
Transfer).In these circumstances the Trading
Policy may require that the transfereenotify the
Service Provider prior to utilising the portion of the
ContractedCapacity subject to the Bare Transfer and of
the nature of the ContractedCapacity subject
to the Bare Transfer, but the Trading Policy must not
requireany other details regarding the transaction
to be provided to the ServiceProvider.(b)Where commercially and technically
reasonable, a User must be permitted totransfer or
assign all or part of its Contracted Capacity other than by way of
aBare Transfer with the prior consent of the
Service Provider. The ServiceProvider may
withhold its consent only on reasonable commercial ortechnical grounds and may make its consent
subject to conditions only if theyare reasonable
on commercial and technical grounds. The Trading Policy mayspecify conditions in advance under which
consent will or will not be givenand conditions
that must be adhered to as a condition of consent being
given.(c)Where commercially and technically
reasonable, a User must be permitted tochange the
Delivery Point or Receipt Point from that specified in any
contractfor the relevant Service with the prior
written consent of the Service Provider.The Service
Provider may withhold its consent only on reasonablecommercial or technical grounds and may make
its consent subject toconditions only if they are reasonable
on commercial and technical grounds.The Trading
Policy may specify conditions in advance under which consentwill
or will not be given and conditions that must be adhered to as a
conditionof consent being given.22This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 23.11Examples of things that would be reasonable
for the purposes of section 3.10(b) and(c) are:(a)the Service Provider refusing to agree
to a User's request to change itsDelivery Point
where a reduction in the amount of the Service provided to
theoriginal Delivery Point will not result in a
corresponding increase in theService
Provider's ability to provide that Service to the alternative
DeliveryPoint; and(b)the
Service Provider specifying that, as a condition of its agreement
to achange in the Delivery Point or Receipt
Point, the Service Provider mustreceive the same
amount of revenue it would have received before thechange.Queuing
Policy3.12An Access
Arrangement must include a policy for determining the priority that
aProspective User has, as against any other
Prospective User, to obtain access to SpareCapacity and
Developable Capacity (and to seek dispute resolution under section
6)where the provision of the Service sought by
that Prospective User may impede theability of the
Service Provider to provide a Service that is sought or which may
besought by another Prospective User (aQueuing Policy).3.13The Queuing
Policy must:(a)set out sufficient detail to enable
Users and Prospective Users to understandin advance how
the Queuing Policy will operate;(b)accommodate, to the extent reasonably
possible, the legitimate businessinterests of the
Service Provider and of Users and Prospective Users; and(c)generate, to the extent reasonably
possible, economically efficient outcomes.3.14The
Relevant Regulator may require the Queuing Policy to deal with any
other matterthe Relevant Regulator thinks fit taking
into account the matters listed in section 2.24.3.15Notwithstanding
anything else contained in this Code, the Service Provider
mustcomply with the Queuing Policy specified in
the Service Provider's AccessArrangement.Extensions/Expansions Policy3.16An Access
Arrangement must include a policy (anExtensions/Expansions Policy)which sets out:(a)the
method to be applied to determine whether any extension to, or
expansionof the Capacity of, the Covered
Pipeline:(i)should be treated as part of the
Covered Pipeline for all purposesunder the Code;
or(ii)should not be
treated as part of the Covered Pipeline for any purposeunder the Code;(for example,
the Extensions/Expansions Policy could provide that theService Provider may, with the Relevant
Regulator's consent, elect at somepoint in time
whether or not an extension or expansion will be part of theCovered Pipeline or will not be part of the
Covered Pipeline);[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200223
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems(b)specify how any extension or expansion which
is to be treated as part of theCovered Pipeline
will affect Reference Tariffs (for example, theExtensions/Expansions Policy could
provide:(i)Reference Tariffs will remain
unchanged but a Surcharge may belevied on
Incremental Users where permitted by sections 8.25 and8.26; or(ii)specify that a review will be triggered and
that the Service Providermust submit revisions to the Access
Arrangement pursuant tosection 2.28);(c)if
the Service Provider agrees to fund New Facilities if certain
conditions aremet, a description of those New Facilities
and the conditions on which theService Provider
will fund the New Facilities.The Relevant
Regulator may not require the Extensions/Expansions Policy to
statethat the Service Provider will fund New
Facilities unless the Service Provider agrees.Review and
Expiry of the Access Arrangement3.17An
Access Arrangement must include:(a)a
date upon which the Service Provider must submit revisions to the
AccessArrangement (aRevisions
Submission Date); and(b)a
date upon which the next revisions to the Access Arrangement are
intendedto commence (aRevisions
Commencement Date).In approving the Revisions Submissions
Date and Revisions Commencement Date,the Relevant
Regulator must have regard to the objectives in section 8.1, and
may inmaking its decision on an Access Arrangement
(or revisions to an AccessArrangement), if it considers it
necessary having had regard to the objectives insection 8.1:(i)require an earlier or later Revisions
Submission Date and RevisionsCommencement
Date than proposed by the Service Provider in its proposedAccess Arrangement;(ii)require that specific major events be
defined that trigger an obligation on theService Provider
to submit revisions prior to the Revisions Submission Date.3.18An Access
Arrangement Period accepted by the Relevant Regulator may be of
anylength; however, if the Access Arrangement
Period is more than five years, theRelevant
Regulator must not approve the Access Arrangement without
consideringwhether mechanisms should be included to
address the risk of forecasts on which theterms of the
Access Arrangement were based and approved proving incorrect.
Thesemechanisms may include:(a)requiring the Service Provider to submit
revisions to the Access Arrangementprior to the
Revisions Submission Date if certain events occur, for
example:(i)if a Service Provider's profits
derived from a Covered Pipeline areoutside a
specified range or if the value of Services reserved incontracts with Users are outside a specified
range;(ii)if the type or
mix of Services provided by means of a CoveredPipeline changes
in a certain way; or24This version is
not published under theLegislation Revision and Publication
Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2(b)a
Service Provider returning some or all revenue or profits in excess
of acertain amount to Users, whether in the form
of lower charges or some otherform.Where a mechanism is included in an Access
Arrangement pursuant tosection 3.18(a), the Relevant
Regulator must investigate no less frequently than onceevery five years whether a review event
identified in the mechanism has occurred.3.19Nothing in section 3.18 shall be taken to
imply that the Relevant Regulator may notapprove an
Access Arrangement Period longer than 5 years if the Relevant
Regulatorconsiders this appropriate, having regard to
the objectives of section 8.1.3.20An
Access Arrangement submitted under section 2.3 may include a date
at which timethe Access Arrangement will expire. If an
Access Arrangement submitted undersection 2.3
expires, the Covered Pipeline the subject of the Access
Arrangementceases to be Covered on the expiry date. The
Service Provider must notify the CodeRegistrar if a
Pipeline ceases to be Covered under this section and the Code
Registrarmust update the Public Register
accordingly.Determining Reference Tariffs through a
Competitive Tender Process3.21Any person who
wishes to conduct a tender in relation to a Pipeline that has not
beenbuilt may make an application to the
Relevant Regulator (aTender Approval Request)requesting the Relevant Regulator to
approve the use of a tender process to determine:(a)Reference Tariffs for certain
Reference Services to be provided by means ofthe proposed
Pipeline;(b)other specified items which are
required to be included in an AccessArrangement and
which are directly relevant to the determination of theReference Tariffs concerned (including,
without limitation, the RevisionsSubmission Date
and Revisions Commencement Date).3.22A
Tender Approval Request must:(a)nominate the location or locations from
where the proposed Pipeline will takegas and the
location or locations of the gas market to which the
proposedPipeline will deliver gas;(b)detail the process (including
procedures and rules) proposed to be followed inconducting the tender process, including the
minimum requirements which atender must meet
before it will be accepted as a conforming tender (forexample, the date by which tenders must be
received);(c)detail the selection criteria to be
applied in selecting the successful tender;and(d)specify a possible Revisions
Commencement Date or a series of possibleRevisions
Commencement Dates to be established for the proposed
Pipeline,in relation to which tenderers are asked to
submit tenders and proposeReference Tariffs.The
specification of a Revisions Commencement Date in a Tender Approval
Requestand a decision to approve such a Tender
Approval Request do not limit in any way theRelevant
Regulator's discretion to approve or not approve a RevisionsCommencement Date pursuant to section
3.33(d).[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200225
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems3.23Subject to section 3.27, within 14 days
after receiving a Tender Approval Requestwhich conforms
with section 3.22 the Relevant Regulator must:(a)inform each person known to the Relevant
Regulator who the RelevantRegulator believes has a sufficient
interest in the matter that it has received aTender Approval
Request; and(b)publish a notice in a national daily
newspaper which at least:(i)describes the
proposed Pipeline to which the Tender ApprovalRequest
relates;(ii)states how
copies of the Tender Approval Request can be obtained;and(iii)requests
submissions by a date specified in the notice (not being adate
earlier than 14 days, or later than 28 days, after the date of
thenotice).3.24The
Relevant Regulator must provide a copy of those parts of the Tender
ApprovalRequest that it has not agreed to keep
confidential to any person within seven daysafter the person
requests a copy and pays any reasonable fee required by the
RelevantRegulator.3.25Within 28 days of the date specified in the
notice published under section 3.23(b), theRelevant
Regulator must make a decision in relation to a Tender Approval
Requestthat:(a)approves the Tender Approval Request;
or(b)does not approve the Tender Approval
Request.In making a decision under this section 3.25
the Relevant Regulator must consider anysubmissions
received within the time specified in the notice published
undersection 3.23(b) and may (but is not obliged
to) consider any submissions receivedafter the
time.3.26The Relevant
Regulator may reject a Tender Approval Request without
furtherconsideration if it is of the opinion that
the application has been made on trivial orvexatious
grounds.3.27The Relevant
Regulator may at any time decide not to approve a Tender
ApprovalRequest if it is of the opinion that the
person who submitted the Tender ApprovalRequest may
have, or may appear to have, a conflict of interest if it conducted
thetender process. The Relevant Regulator may
decide not to approve a Tender ApprovalRequest under
this section 3.27 without conducting the public consultation
requiredunder section 3.23. If the Relevant
Regulator decides not to approve a TenderApproval Request
under this section 3.27 on conflict of interest grounds,
anotherperson may submit a new Tender Approval
Request under section 3.21 in relation tothe same
proposed Pipeline.3.28The Relevant
Regulator must decide to approve a Tender Approval Request
ifsatisfied of all of the following and must
decide not to approve a Tender ApprovalRequest if not
satisfied of all of the following:(a)(new pipeline): that the
proposed Pipeline will be a new Pipeline;26This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2(b)(public interest and Reference Tariff
objectives): that using the tenderprocess as
outlined in the Tender Approval Request to determine
ReferenceTariffs is in the public interest and is an
appropriate mechanism in thecircumstances
for ensuring that Reference Tariffs achieve the objectives
insection 8.1;(c)(tender process will be
competitive): that the number and character of
tenderslikely to be received would be such as to
ensure a competitive outcome; and(d)(exclusion of certain tenders):
that the proposed procedures and rules to befollowed in
conducting the proposed tender will result in a tender beingexcluded from consideration if it:(i)does not include a statement of the
Reference Tariffs the tendererproposes and the
Reference Services to which those ReferenceTariffs would
apply;(ii)does not include
a policy on whether the additional revenue whichwould result if the volume of gas actually
transported by theproposed Pipeline exceeds a certain volume
will either be retained bythe Service Provider or returned in
whole or in part to Users in theform of lower
charges or some other form (anAdditional
RevenuePolicy);(iii)does not provide
that the residual value of the proposed Pipeline afterthe
expiration of the initial Reference Tariff will be based ondepreciation over the Pipeline's economic
life;(iv)limits or
purports to limit the Services to which access might besought under this Code; or(v)otherwise includes elements
inconsistent with this Code except ascontemplated by
section 3.34;(e)(consideration of
all conforming tenders): that the proposed procedures
andrules to be followed in conducting the
proposed tender will result in no tenderbeing excluded
from consideration except in the circumstances outlined inparagraph (d) or if the tender does not
conform to other reasonablerequirements in
the request for tenders or does not meet reasonable
prudentialand technical requirements;(f)(selection
criteria): that the selection criteria to be applied
in conducting theproposed tender:(i)will
result in the successful tender being selected principally on
thebasis that the tender will deliver the
lowest sustainable tariffs(including but not limited to
Reference Tariffs) to Users generallyover the
economic life of the proposed Pipeline; and(ii)are
likely to result in Reference Tariffs that meet the criteriaspecified in section 3.33(c);(g)(determination of
items with the Reference Tariffs): that the
tenderdocuments specify which items required to be
included in an AccessArrangement other than Reference
Tariffs will be determined by the tenderand that those
items are directly relevant to the determination of
ReferenceTariffs;[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200227
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems(h)(configuration of Pipeline not
limited): that the tender documents
publishedby the person conducting the tender will not
specify the configuration of theproposed
Pipeline, including the areas the proposed Pipeline will
service,pipeline dimensions, level of compression or
other technical specifications,unless the
Relevant Regulator is satisfied it would be appropriate to do
so;(i)(other
documents): that any document supporting or relating
to the tenderprocess is consistent with this Code and
does not purport to limit:(i)the Services
which the Service Provider may provide or to whichaccess may be sought under this Code;(ii)the
configuration of the proposed Pipeline including the areas
theProposed Pipeline will service, pipeline
dimensions, level ofcompression and other technical
specifications unless the RelevantRegulator is
satisfied it would be appropriate to do so; or(iii)the
construction or operation of other Pipelines which could
delivergas to the same gas market as the proposed
Pipeline.3.29If the Relevant
Regulator has made a decision under section 3.25 approving a
TenderApproval Request and a tender process has
been conducted, the person who conductedthe tender
process may apply in writing to the Relevant Regulator for final
approvalunder section 3.32 (aFinal Approval
Request). A Final Approval Request mustinclude a statement of which tender was
selected and the reasons for that selectionbased on the
selection criteria.3.30After the
successful tenderer has been selected, the Relevant Regulator may
permit theperson who conducted the tender process and
the successful tenderer to agree tochanges to the
terms of the tender which result in minor changes to the
ReferenceTariffs proposed in the tender, provided the
Relevant Regulator is satisfied thechanges are
consistent with the requirements in section 3.28(a) to (i). The
amendedReference Tariffs shall be considered to be
the Reference Tariffs determined inaccordance with
the tender process for the purposes of the Relevant Regulator
makinga decision to approve or not approve a Final
Approval Request.3.31The Relevant
Regulator may before it makes a decision under section 3.32 require
theperson who submitted the Final Approval
Request to provide the Relevant Regulatorwith any
information or assistance the Relevant Regulator reasonably
requires.3.32If the Relevant
Regulator receives a Final Approval Request, the Relevant
Regulatormust within 28 days of receiving all
information it requires under section 3.31 make adecision that:(a)approves the Final Approval Request;
or(b)does not approve the Final Approval
Request.3.33The Relevant
Regulator must decide to approve the Final Approval Request
ifsatisfied of all of the following and must
decide not to approve the Final ApprovalRequest if not
satisfied of all of the following:(a)that
the successful tender was selected in accordance with the
selectioncriteria specified in the Tender Approval
Request approved by the RelevantRegulator under
section 3.25;28This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2(b)that
the tender process was conducted in accordance with the procedures
andrules specified in the Tender Approval
Request approved by the RelevantRegulator under
section 3.25;(c)that the Reference Tariffs determined
in accordance with the tender process:(i)achieve the objectives in section 8.1;
and(ii)contain or
reflect an allocation of costs between Services and anallocation of costs between Users which is
fair and reasonable;(d)that the
Revisions Commencement Date in the Access Arrangement for
theproposed Pipeline is not later than 15 years
after the Access Arrangement forthe proposed
Pipeline is approved or such later date as the Relevant
Regulatorconsiders appropriate for the proposed
Pipeline on the basis of the proposedtariffs
(including but not limited to Reference Tariffs); and(e)that the successful tenderer's Access
Arrangement for the proposed Pipelinewill contain an
Additional Revenue Policy that is appropriate for the
proposedPipeline on the basis of the proposed
tariffs (including but not limited toReference
Tariffs).3.34If the Relevant
Regulator makes a decision under section 3.32 approving a
FinalApproval Request then the proposed Pipeline
concerned shall be a Covered Pipelinefrom the time of
that decision. In any Access Arrangement for that Covered
Pipeline:(a)for each Reference Service for which a
Reference Tariff was determined bythe tender
process, the Reference Tariff shall be the Reference Tariff that
wasdetermined in accordance with the tender
process and approved by theRelevant
Regulator; and(b)each other item required to be
included in an Access Arrangement, which thetender documents
specified would be determined by the tender process, shallbe
as determined in accordance with the tender process and approved by
theRelevant Regulator.Nothing in this
section 3.34 limits the Reference Services for which the
RelevantRegulator can require a Reference Tariff to
be established.3.35If the Relevant
Regulator makes a decision under section 3.32 approving a
FinalApproval Request, then the Access
Arrangement Information for that CoveredPipeline need
not contain the information required by sections 2.6 and 2.7, or
anyother information, in respect of Reference
Tariffs determined pursuant tosection
3.34(a).3.36Nothing in
section 3.34 limits or affects the operation of any provision of
this Codeexcept the provisions of section 3 relating
to the content of an Access Arrangement tothe extent that
a Reference Tariff or other item included in the Access
Arrangementmay, under section 3.34, be determined in
accordance with the tender process.4—RING FENCING
ARRANGEMENTSThis section of the Code requires a Service
Provider to establish arrangements to segregate or"ring fence" its business of providing
Services using a Covered Pipeline. As a minimum, aService Provider must:•be a
legal entity;[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200229
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems•not
carry on a Related Business (essentially a business of producing,
purchasing orselling Natural Gas);•establish and maintain separate accounts for
the activity that is the subject of eachAccess
Arrangement;•establish and maintain a consolidated
set of accounts for all the activities undertakenby
the Service Provider;•allocate costs
shared between different accounts in a fair and reasonable
manner;•ensure that Confidential Information
provided by a User or a Prospective User is usedonly
for the purposes for which it was provided and is not disclosed
without the Useror Prospective User's consent;•ensure that Confidential Information
obtained by a Service Provider which mightreasonably be
expected to materially affect the commercial interests of a User
orProspective User is not disclosed to any
other person without the permission of theUser or
Prospective User to whom the information pertains;•ensure that Marketing Staff of a
Service Provider are not also working for anAssociate that
takes part in a Related Business; and•ensure that Marketing Staff of an Associate
that takes part in a Related Business arenot also working
for the Service Provider.In addition to these minimum
requirements, the Relevant Regulator may require the ServiceProvider to meet additional ring fencing
obligations. The Relevant Regulator also has adiscretion to
dispense with some of the ring fencing obligations. The Gas
Pipelines Access Lawprovides a mechanism for review by the
Relevant Appeals Body of a decision by the RelevantRegulator in relation to imposing additional
ring fencing obligations or waiving minimum ringfencing obligations.This section of
the Code also requires the Service Provider to establish procedures
to ensurecompliance with the ring fencing
obligations.Ring Fencing Minimum Obligations4.1A person who is a Service Provider in
respect of a Covered Pipeline (regardless ofwhether they are
also a Service Provider in respect of a Pipeline that is not
Covered)must comply with the following (but in the
case of paragraphs (a), (b), (h) and (i), asfrom the date
that is 6 months after the relevant Pipeline became
Covered):(a)be a legal entity incorporated
pursuant to the Corporations Law, a statutorycorporation, a
government or an entity established by royal charter;(b)not carry on a Related
Business;(c)establish and maintain a separate set
of accounts in respect of the Servicesprovided by each
Covered Pipeline in respect of which the person is a ServiceProvider;(d)establish and maintain a separate
consolidated set of accounts in respect ofthe entire
business of the Service Provider;(e)allocate any costs that are shared between
an activity that is covered by a setof accounts
described in section 4.1(c) and any other activity according to
amethodology for allocating costs that is
consistent with the principles insection 8.1 and
is otherwise fair and reasonable;30This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2(f)ensure that all Confidential Information
provided by a User or ProspectiveUser is used
only for the purpose for which that information was providedand
that such information is not disclosed to any other person without
theapproval of the User or Prospective User who
provided it, except:(i)if the
Confidential Information comes into the public domainotherwise than by disclosure by the Service
Provider; or(ii)to comply with
any law, any legally binding order of a court,government,
government or semi-government authority oradministrative
body or the listing rules of any relevant recognisedStock Exchange;(g)ensure that all Confidential Information
obtained by the Service Provider orby its servants,
consultants, independent contractors or agents in the course
ofconducting its business and which might
reasonably be expected to affectmaterially the
commercial interests of a User or Prospective User is notdisclosed to any other person without the
approval of the User or ProspectiveUser to whom
that information pertains, except:(i)if
the Confidential Information comes into the public domainotherwise than by disclosure by the Service
Provider; or(ii)to comply with
any law, any legally binding order of a court,government,
government or semi-government authority oradministrative
body or the listing rules of any relevant recognisedStock Exchange;(h)ensure that its Marketing Staff are not also
servants, consultants, independentcontractors or
agents of an Associate that takes part in a Related Businessand,
in the event that they become or are found to be involved in a
RelatedBusiness contrary to this section, must
procure their immediate removal fromits Marketing
Staff; and(i)ensure that none of its servants,
consultants, independent contractors oragents are
Marketing Staff of an Associate that takes part in a RelatedBusiness and, in the event that any
servants, consultants, independentcontractors or
agents are found to be the Marketing Staff of such an
Associatecontrary to this section, must procure their
immediate removal from theirposition with
the Service Provider.4.2In complying
with sections 4.1(c), (d) and (e) a Service Provider must:(a)if the Relevant Regulator has
published general accounting guidelines forService
Providers which apply to the accounts being prepared, comply
withthose guidelines; or(b)if
the Relevant Regulator has not published such guidelines, comply
withguidelines prepared by the Service Provider
and approved by the RelevantRegulator or, if
there are no such guidelines, comply with such guidelines
(ifany) as the Relevant Regulator advises the
Service Provider apply to thatService Provider
from time to time.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200231
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsSuch guidelines
may, amongst other things, require the accounts to contain
sufficientinformation, and to be presented in such a
manner, as would enable the verification bythe Relevant
Regulator of the calculation of the Reference Tariffs for
CoveredPipelines.Additional Ring
Fencing Obligations4.3The Relevant Regulator may by notice
to a Service Provider require the ServiceProvider to
comply with obligations in addition to those contained in section
4.1,having regard to the following
objectives:(a)ensuring that the Service Provider
does not have regard to the interests of anAssociate in
priority to the interests of other Users or Prospective Users
withrespect to the supply of Services (except as
provided for on a basis that dealsfairly between
all Users and Prospective Users under an applicable QueuingPolicy); and(b)ensuring that ring fencing obligations do
not impose unreasonable compliancecosts on the
Service Provider or its Associates.The Service
Provider must comply with any additional obligations imposed under
thissection 4.3.4.4Without limiting the additional obligations
that may be imposed under section 4.3, theRelevant
Regulator may require that:(a)the
Service Provider ensure its Additional Staff are not also
servants,consultants, independent contractors or
agents of an Associate that takes partin a Related
Business and, in the event that they become or are found to
beinvolved in a Related Business, ensure their
immediate removal from theAdditional Staff;(b)at
least one director of the Service Provider is not also a director
of acompany (whether or not an Associate) that
takes part in a Related Businessor is or may
become a User; and(c)the electronic, physical and
procedural security measures employed in respectof
the offices of the Service Provider and of all offices of its
Associates aresatisfactory to the Relevant
Regulator.The examples given in this section 4.4 shall
not be construed as limiting the types ofaction a Service
Provider may have to take in order to comply with section
4.1.Procedures for Adding Ring Fencing
Obligations4.5The Relevant Regulator must before
issuing a notice under section 4.3:(a)inform each person known to the Relevant
Regulator who the RelevantRegulator believes has a sufficient
interest in the matter that it is consideringissuing a notice
under section 4.3 with respect to a particular ServiceProvider; and(b)publish a notice in a national daily
newspaper which at least:(i)states who the
Service Provider concerned is and the obligations theRelevant Regulator is considering
adding;(ii)requests
submissions by a date specified in the notice (not being adate
earlier than 14 days after the date of the notice).32This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 24.6The
Relevant Regulator must consider any submissions received by the
date specifiedin the notice published under section 4.5(b)
and may (but is not obliged) to considerany submissions
received after that date.4.7Within 14 days
after the last day for submissions specified in the notice
publishedunder section 4.5(b) the Relevant Regulator
must issue a draft decision stating whetheror not it
intends to issue a notice under section 4.3.4.8The
Relevant Regulator must:(a)provide a copy
of its draft decision to the Service Provider, any person
whomade a submission on the matter and any
other person who requests a copy;and(b)request submissions from persons to
whom it provides the draft decision by aspecified date
(not being a date earlier than 14 days after the date the
draftdecision was issued).4.9The
Relevant Regulator must consider any submissions it receives by the
datespecified by the Relevant Regulator under
section 4.8 and it may (but is not obliged)to consider any
submissions received after that date.4.10Within 21 days after the last day for
submissions on the draft decision specified by theRelevant Regulator, the Relevant Regulator
must issue a final decision stating whetheror not it will
issue a notice under section 4.3.4.11Subject to the Gas Pipelines Access Law, a
notice under section 4.3 has effect 14 daysafter the notice
is given to the Service Provider or such later date as the
RelevantRegulator specifies in the notice. A Service
Provider may under the Gas PipelinesAccess Law have
a decision to issue a notice under section 4.3 reviewed by
theRelevant Appeals Body.Compliance
Procedures and Compliance Reporting4.12A
Service Provider must establish and maintain appropriate internal
procedures toensure it complies with its obligations
under this section 4. The Relevant Regulatormay require the
Service Provider to demonstrate the adequacy of these
proceduresupon reasonable notice. However, any
statement made or assurance given by theRelevant
Regulator concerning the adequacy of the Service Provider's
complianceprocedures does not affect the Service
Provider's obligations under this section 4.4.13A
Service Provider must provide a report to the Relevant Regulator,
at reasonableintervals determined by the Relevant
Regulator, describing the measures taken by theService Provider
to ensure compliance with its obligations under this section 4,
andproviding an accurate assessment of the
effect of those measures.4.14A Service
Provider must provide a report of any breach of any of its
obligations underthis section 4 to the Relevant Regulator
immediately upon becoming aware that thebreach has
occurred.Waiver of Ring Fencing Obligations4.15The Relevant
Regulator may by notice to a Service Provider waive any of a
ServiceProvider's obligations under:(a)section 4.1(b) where the Relevant
Regulator is satisfied that:[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200233
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems(i)either the Covered Pipeline is not a
significant part of the Pipelinesystem in any
State or Territory in which it is located or there is morethan
one Service Provider in relation to the Covered Pipeline and
theService Provider concerned does not have a
significant interest in theCovered Pipeline
and does not actively participate in themanagement or
operation of the Covered Pipeline; and(ii)the
administrative costs to the Service Provider and its Associates
ofcomplying with that obligation outweighs any
public benefit arisingfrom the Service Provider meeting the
obligation, taking into accountarrangements put
in place by the Service Provider (if any) to ensurethat
Confidential Information the subject of sections 4.1(f) and (g)
isnot disclosed to the Service Provider or is
not disclosed to theservants, consultants, independent
contractors or agents of theService Provider
who take part in a Related Business; and(iii)an
arrangement has been established between the Service
Providerand the Relevant Regulator which the
Relevant Regulator is satisfiedreplicates the
manner in which section 7.1 would operate if theService Provider complied with section
4.1(b); and(b)sections 4.1(h) and (i) where the
Relevant Regulator is satisfied that theadministrative
costs to the Service Provider and its Associates of
complyingwith that obligation outweigh any public
benefit arising from the ServiceProvider meeting
the obligation.Procedures for Waiving Ring Fencing
Obligations4.16A Service
Provider may apply to the Relevant Regulator requesting the
RelevantRegulator to issue a notice under section
4.15.4.17When the
Relevant Regulator receives an application under section 4.16 the
RelevantRegulator must:(a)if
it considers that the application has been made on trivial or
vexatiousgrounds, reject the application without
further consideration; or(b)in all other
cases within 14 days after receipt of the application:(i)inform each person known to the
Relevant Regulator who theRelevant Regulator believes has a
sufficient interest in the matter thatit has received
the application; and(ii)publish a notice
in a national daily newspaper which at least:(A)states who the Service Provider concerned is
and theobligations that the application seeks to
have waived;(B)states how copies of the application
can be obtained;(C)requests submissions by a date
specified in the notice (notbeing a date
earlier than 14 days after the date of the notice).4.18The Relevant
Regulator must provide a copy of the application to any person
within7 days after the person requests a copy and
pays any reasonable fee required by theRelevant
Regulator.34This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 24.19The
Relevant Regulator must consider any submissions received by the
date specifiedin the notice published under section
4.17(b) and it may (but is not obliged) toconsider any
submissions received after that date.4.20Within 14 days after the last day for
submissions specified in the notice publishedunder section
4.17(b) the Relevant Regulator must issue a draft decision
statingwhether or not it intends to issue a notice
under section 4.15.4.21The Relevant
Regulator must:(a)provide a copy of its draft decision
to the Service Provider, any person whomade a
submission on the matter and any other person who requests a
copy;and(b)request
submissions from persons to whom it provides the draft decision by
aspecified date (not being a date earlier
than 14 days after the date the draftdecision was
issued).4.22The Relevant
Regulator must consider any submissions it receives by the
datespecified by the Relevant Regulator under
section 4.21 and it may (but is not obliged)to consider any
submissions received after that date.4.23Within 21 days after the last day for
submissions on the draft decision specified by theRelevant Regulator, the Relevant Regulator
must issue a final decision stating whetheror not it will
issue a notice under section 4.15.4.24Subject to the Gas Pipelines Access Law, a
notice under section 4.15 has effect 14days after the
notice is given to the Service Provider or such later date as the
RelevantRegulator specifies in the notice. A Service
Provider or other person adverselyaffected may
under the Gas Pipelines Access Law have a decision by the
RelevantRegulator to issue or not issue a notice
under section 4.15 reviewed by the RelevantAppeals
Body.5—INFORMATION AND TIMELINES FOR
NEGOTIATIONThis section of the Code places obligations
on Service Providers and Users to disclose to themarket information relevant to obtaining
access to Services provided by means of a CoveredPipeline.Service
Providers are required to:•establish, and
provide to bona fide Prospective Users who request it, an
InformationPackage containing general information on
the terms and conditions of access andexplaining how
to make a specific access request;•respond within 30 days to a specific request
for access; and•establish and maintain a public
register of Spare and Developable Capacity.Users with
Contracted Capacity which they do not expect to use must make
available to anyperson who requests it information about the
quantity, type and timing of that unutilisedContracted
Capacity. The User may notify the Service Provider of its
unutilised ContractedCapacity so that it is included on the
Service Provider's public register.[15.9.2006] This
version is not published under theLegislation
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Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsGeneral Requests
from Prospective Users5.1A Service
Provider must establish and maintain an Information Package in
relation toeach Covered Pipeline that contains at least
the following information:(a)the Access
Arrangement and Access Arrangement Information for therelevant Covered Pipeline;(b)a summary of the contents of the
public register referred to in section 5.9,updated at
reasonable intervals;(c)information
relating to all major trunk and mains pipes comprised in therelevant Covered Pipeline (for example, a
map showing the location and sizeof those
pipes);(d)a description of the Service
Provider's procedures relating to specific accessrequests, including a detailed description
of the information the ServiceProvider
requires in order to consider an access request; and(e)any other information the Relevant
Regulator reasonably requires to beincluded under
section 5.2.5.2The Relevant Regulator may require the
Service Provider to amend or includeadditional
information in the Information Package if the Relevant Regulator
considersthe amendment or additional information will
assist Prospective Users to decidewhether or not
to seek Services from the Service Provider or to determine how to
goabout seeking Services from the Service
Provider. The Relevant Regulator must notrequire
information to be included in the Information Package if its
disclosure could inthe Relevant Regulator's opinion be unduly
harmful to the legitimate business interestsof the Service
Provider or a User or Prospective User.5.3The
Service Provider must provide a copy of the Information Package to
any bonafide Prospective User within 14 days after
the Prospective User requests a copy andpays any
applicable fee. The Service Provider may require the payment of
areasonable fee (determined in a manner
approved by the Relevant Regulator) forcopying the
Access Arrangement Information, but must not charge a fee for any
otheritem included in the Information
Package.Specific Requests from Prospective
Users5.4If a Service Provider receives a
specific request for access to a Service provided bymeans of a Covered Pipeline it must, within
30 days after it has received theinformation
required to consider the request (as set out in the Information
Package),respond to the Prospective User:(a)confirming that Spare Capacity exists
to satisfy the request and specifying thecharges and
terms and conditions upon which it will make the Serviceavailable; or(b)advising that Spare Capacity does not exist
to satisfy the request; or(c)advising that
investigations are required to be undertaken prior to
respondingto the request.5.5If
the Service Provider advises that investigations are required to be
undertaken priorto responding to the request, it must also
advise the Prospective User of:(a)the
nature of the investigations;36This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2(b)a
plan, including a time schedule, for completing the investigations;
and(c)any reasonable costs which the
Prospective User may be required to meet inrespect of the
investigations.Upon obtaining the Prospective User's
consent to the plan and the proposed allocationof costs, the
Service Provider must proceed forthwith with the agreed
plan.5.6If the Service Provider advises that
Capacity does not exist to satisfy the request, itmust
provide an explanation outlining those aspects of the request which
cannot besatisfied and indicating, based on current
commitments, when the requirement mightbe able to be
satisfied.5.7If a Prospective User or a Service
Provider provides the other with informationpursuant to
section 5.4, 5.5 or 5.6 which it notifies the other is
confidential, therecipient must not disclose that information
to any other person except:(a)if
the information comes into the public domain otherwise than by
disclosureby the recipient; or(b)to
comply with any law, any legally binding order of a court,
government,government or semi-government authority or
administrative body or thelisting rules of any relevant
recognised Stock Exchange.Information Provided by Users to the
Market5.8Notwithstanding anything contained in
an Access Arrangement, where a User doesnot expect to
utilise fully its Contracted Capacity and where the unutilised
ContractedCapacity is a Marketable Parcel then the
User:(a)must promptly provide to any person
who requests it information about thequantity, type
and timing of the unutilised Contracted Capacity and maymake
publicly available the proposed terms and conditions (which
mayinclude price) for the sale of the
unutilised Contracted Capacity; and(b)may
notify the Service Provider of the unutilised Contracted
Capacity,including the quantity, type and timing of
the unutilised Contracted Capacityand the proposed
terms and conditions (which may include price) for the saleof
the unutilised Contracted Capacity.Public Register
of Capacity5.9The Service Provider must establish
and maintain a public register which includes:(a)an
indication of the Spare Capacity that it reasonably believes exists
fordelivery to defined points along the Covered
Pipeline (being defined pointsthat are likely
to be relevant commercially for a significant number ofProspective Users and the number of which is
reasonable on commercial andtechnical
grounds);(b)to the extent that it is commercially
and technically reasonable to include it,information on
planned or committed Developable Capacity and reasonablyexpected additions to Spare Capacity at the
defined points along the CoveredPipeline
referred to in paragraph (a), except where such disclosure may
beunduly harmful to the legitimate business
interests of the Service Provider ora User or
Prospective User; and(c)information
provided to the Service Provider by a User under section
5.8(b).[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200237
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsWhere a Covered
Pipeline comprises a hierarchy of pipes that are differentiated
by,amongst other things, pipeline operating
pressure and pipeline diameter, theinformation
referred to in paragraphs (a) and (b) may be limited to the trunk
and mainspipes.6—DISPUTE
RESOLUTIONThis section of the Code establishes a
mechanism whereby disputes between Prospective Usersand
Service Providers about the terms and conditions of access can be
submitted to theArbitrator for arbitration. This section of
the Code sets out rules relating to notification of adispute, withdrawal and termination of a
dispute, the nature of the arbitration decision to bemade
and certain guidelines and restrictions the Arbitrator must follow
in making its decision.The Gas Pipelines Access Law contains
the detailed procedural rules that will apply in anarbitration.The Code does
not limit the ability of a Service Provider and User to reach an
agreementabout access without recourse to these
dispute resolution procedures. The Code also does notlimit the terms and conditions on which a
Service Provider and User can reach agreement. Inparticular, parties can agree to a Tariff
other than the Reference Tariff. The provisions insection 6 will apply only if parties cannot
reach agreement and a dispute is notified to theRelevant Regulator.The dispute
resolution mechanism applies only to a dispute about Service
provided by meansof a Covered Pipeline (for example, a
dispute about access to Spare or Developable Capacityor a
dispute about interconnection). Spare Capacity is defined as
meaning, in the case of aContract Carriage Pipeline,
essentially, capacity that has not already been reserved in
acontract plus contractually reserved
capacity that is not being used. Although the Arbitratorcan
determine that access should be provided to contractually reserved
capacity that is notbeing used, it must not make a
decision that deprives a person of a contractual right.Consequently, access to contracted but
unused capacity can be ordered on an interruptiblebasis but the original contract holder
retains a priority right to that capacity.Although an
Access Arrangement (apart from the Queuing Policy) cannot limit the
scope forcommercial negotiation, or limit the range
of matters that can be the subject of an accessdispute, the
Arbitrator is bound to apply the provisions of the Access
Arrangement in an accessarbitration. The implications of this
are that:•except in relation to the Queuing
Policy, the dispute resolution procedure is themechanism
through which a User can require the Service Provider to grant
accessaccording to the terms of the Access
Arrangement (for example, to grant access to theReference Service at the Reference Tariff);
and•the Access Arrangement provides a
degree of certainty as to the outcome of an accessdispute.The Arbitrator
may before arbitrating a dispute:-require the parties to continue negotiations
or engage in some alternative disputeresolution
process; and-require written reports from the
parties.If the Arbitrator decides the sole subject
of dispute is what tariff should apply to a ReferenceService, the Arbitrator may short cut the
dispute resolution process and make an immediatedecision requiring the Reference Service to
be provided at the Reference Tariff.38This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2In any other
case, the arbitrator must in reaching a decision:•apply the provisions of the Access
Arrangement; and•take into account the factors listed
in section 6.15.The Arbitrator must not make a decision
that:•is inconsistent with the Access
Arrangement;•would prevent a User from obtaining a
Service to the extent provided for in acontract;•deprives a person of any contractual
right that existed prior to the notification of thedispute, other than an Exclusivity Right
which arose on or after 30 March 1995;•affects the valid priority rights of another
person under the Queuing Policy; or•requires a Service Provider, User or
Prospective User to accept a tariff for aReference
Service other than the Reference Tariff.Because the
Arbitrator cannot deprive a person of a contractual right,
"foundation shippers"contracts cannot be overturned by the
Arbitrator at either the Service Provider's or foundationshipper's request.The Arbitrator
is also precluded from granting access where the Service Provider
reasonablybelieves that access is incompatible with
the safe operation of the Covered Pipeline andprudent pipeline
practice accepted in the industry. If the Arbitrator is precluded
from grantingaccess on these grounds, the Service
Provider must disclose to the Prospective User theassumptions it used in forming its belief.
The Prospective User also has the option of requiringan
independent expert to provide an opinion on the matter. The expert
opinion cannot overridethe Service Provider's reasonable
belief on safety. In certain circumstances, however, furtheraction could be taken by the Relevant
Regulator or the Prospective User under the hinderingprovisions of the Gas Pipelines Access Law
if the advice of the expert contradicts the positionof
the Service Provider. In certain circumstances, the Arbitrator may
require a ServiceProvider to install a New Facility to expand
capacity.The final decision has effect 14 days after
the decision is made. The Service Provider is boundby
the decision. The Prospective User is also bound by the decision
unless it notifies theArbitrator within 14 days of the
decision that it does not intend to be bound by the decision.
Aspart of a decision, the Arbitrator may
require the parties to represent the decision in the formof a
binding contract.Notification of a Dispute6.1If a Prospective User and a Service
Provider are unable to agree on one or moreaspects of
access to a Service the Prospective User or Service Provider may
notify theRelevant Regulator in writing that a dispute
exists. A Prospective User or ServiceProvider may not
give a notice to the Relevant Regulator under this section unless
anAccess Arrangement has been accepted by the
Relevant Regulator (or the RelevantRegulator has
drafted and approved its own Access Arrangement) with respect to
theCovered Pipeline concerned.6.2On receiving the notification, the
Relevant Regulator must give notice in writing ofthe
access dispute to:(a)the Service Provider, if another
person notified the access dispute;(b)the
other person, if the Service Provider notified the access
dispute.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200239
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsThe parties to
an arbitration are the Prospective User or Users and the
ServiceProvider or Providers who are in dispute and
no other persons.6.3Before arbitrating a dispute, the
Arbitrator may:(a)require the parties to continue
negotiations or engage in an alternative disputeresolution process; and(b)require reports from each party setting out
the nature of the latest offers, thebasis upon which
those offers were made and the nature of any conflicts ofinterest that the Service Provider may have
that may affect its willingness toresolve the
dispute with the Prospective User.6.4Unless the Arbitrator makes a decision under
section 6.3, the Arbitrator must requirethe parties to
make submissions to the Arbitrator regarding the dispute by a
specifieddate.Withdrawal and
Termination of a Dispute6.5The person who
notified the dispute under section 6.1 or the Prospective User
maywithdraw notification of a dispute at any
time by notice to the Arbitrator. If thenotification is
withdrawn, it is taken for the purposes of this section 6 never to
havebeen given.6.6The
Relevant Regulator may at any time terminate an arbitration
(without making adecision) if the Relevant Regulator
considers that:(a)the notification of the dispute was
vexatious; or(b)the subject-matter of the dispute is
trivial, misconceived or lacking insubstance;
or(c)the party who notified the dispute has
not engaged in negotiations in goodfaith.The
Arbitration6.7Unless the Arbitrator terminates the
arbitration under section 6.6, the Arbitrator mustmake
a decision on access by the Prospective User to a Service.6.8The Arbitrator's decision may deal
with any matter relating to the provision of aService to a
Prospective User. By way of example, the decision may:(a)require the Service Provider to offer
to enter into a contract to provide aService to the
Prospective User at a specified Tariff and on specified
termsand conditions; or(b)require the Service Provider to install a
New Facility to increase the Capacityof the Covered
Pipeline pursuant to section 6.22.The decision
does not have to require the Service Provider to provide a Service
to theProspective User.6.9Subject to section 6.14, in making a
decision under section 6.7 the Arbitrator must:(a)consider submissions received from the
parties before the date specified bythe Arbitrator
under section 6.4;(b)after considering submissions received
by the date specified by the Arbitratorunder section
6.4, provide a draft decision to the parties and requestsubmissions from the parties by a specified
date;40This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2(c)consider submissions received from the
parties before the date specified bythe Arbitrator
under paragraph (b); and(d)after
considering submissions received by the date specified by the
Arbitratorunder paragraph (b) provide a final decision
to the parties.6.10The Arbitrator
may, but need not, by whatever means it considers appropriate
seekwritten submissions from persons who are not
parties to the dispute and take thosesubmissions into
account in making its decision under section 6.7.6.11The Arbitrator
must provide a final decision under section 6.7 within three months
ofrequiring parties to make submissions under
section 6.4. The Arbitrator must alsoensure that
there is a period of at least 14 days:(a)between requiring parties to make
submissions under section 6.4 and the lastday for such
submissions specified by the Arbitrator; and(b)between providing a draft decision to the
parties under section 6.9(b) and thelast day for
submissions on the draft decision specified by the
Arbitrator.In all other respects the timing for the
taking of each of the steps set out in section 6.9is a
matter for the Arbitrator to determine.6.12The
Arbitrator may increase the period of three months specified in
section 6.11 byperiods of up to one month on one or more
occasions provided it provides the parties(and each person
who has made a written submission to the Arbitrator) with a
noticeof the decision to increase the
period.6.13Subject to
sections 6.19 and 6.20, if:(a)the
sole subject of a dispute is the question of which Tariff should
apply to aReference Service; and(b)a
decision requiring the Service Provider to provide the Prospective
User withthe Reference Service that the Prospective
User seeks would not beinconsistent with sections 6.18 and
6.21,the Arbitrator must make a decision
requiring the Service Provider to provide theProspective User
with the Reference Service that the Prospective User seeks at
theReference Tariff and on the terms and
conditions specified under section 3.6.6.14The
Arbitrator need not before making a decision under section 6.13
issue a draftdecision.Guidance for the
Arbitrator6.15When arbitrating
a dispute the Arbitrator must, subject to sections 6.18(b), (c) and
(d),apply the provisions of the Access
Arrangement for the Covered Pipeline concerned.In addition, the
Arbitrator must take into account:(a)the
Service Provider's legitimate business interests and investment in
theCovered Pipeline;(b)the
costs to the Service Provider of providing access, including any
costs ofextending the Covered Pipeline, but not
costs associated with losses arisingfrom increased
competition in upstream or downstream markets;(c)the
economic value to the Service Provider of any additional investment
thatthe Prospective User or the Service Provider
has agreed to undertake;[15.9.2006] This version is not
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for Natural Gas Pipeline Systems(d)the
interests of all Users;(e)firm and binding
contractual obligations of the Service Provider or otherpersons (or both) already using the Covered
Pipeline;(f)the operational and technical
requirements necessary for the safe and reliableoperation of the Covered Pipeline;(g)the economically efficient operation
of the Covered Pipeline; and(h)the
benefit to the public from having competitive markets.6.16A Service
Provider must comply with a decision of the Arbitrator made under
thissection 6 from the date specified by the
Arbitrator.6.17The Arbitrator
may refuse to make a decision that requires the Service Provider
toprovide a particular Service to the
Prospective User if, without limitation, theArbitrator
considers there is substantial competition in the market for the
provision ofthe Service in question.Restrictions on
Decisions6.18Subject to
sections 6.19 and 6.20 and to the Queuing Policy contained in the
AccessArrangement, the Arbitrator must not make a
decision that:(a)subject to paragraphs (b), (c) and
(d), is inconsistent with the AccessArrangement;(b)would impede the existing right of a User to
obtain Services;(c)would deprive any person of a
contractual right that existed prior to thenotification of
the dispute, other than an Exclusivity Right which arose on
orafter 30 March 1995;(d)is
inconsistent with the applicable Queuing Policy; or(e)requires the Service Provider to
provide, or the User or Prospective User toaccept, a
Reference Service at a Tariff other than the Reference
Tariff.Effect of a Surcharge6.19If:(a)a dispute
relates (wholly or partly) to the Tariff to be charged for a
Service;and(b)but for this
section, the Arbitrator would have made a decision requiring
theService Provider to provide a specified
Service at a specified Tariff (whichcould be the
Reference Service at the Reference Tariff); and(c)the
Prospective User is a Prospective Incremental User; and(d)there is a Surcharge relating to the
relevant Incremental Capacity,the Arbitrator's
decision under section 6.7 or section 6.13 may require the
ServiceProvider to provide the Service that would
(but for this section) have been specifiedunder paragraph
(b) at a Tariff equal to the Tariff that would (but for this
section) havebeen specified under paragraph (b) plus the
Surcharge.42This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2Prior Capital
Contributions6.20If a User or
Prospective User claims it has funded the construction of all or
part of aCovered Pipeline, either directly or by
agreeing to pay the Service Provider a highercharge than it
would have paid in the absence of such a capital contribution, then
inmaking a decision the Arbitrator
must:(a)consider whether the User or
Prospective User did make a capital contributionto
the construction of all or part of the Covered Pipeline; and(b)consider the extent to which the User
or Prospective User has recouped anysuch capital
contribution.If the Arbitrator considers that the User or
Prospective User has made a capitalcontribution
which has not been fully recouped, the Arbitrator's decision under
section6.7 or section 6.13 may require the Service
Provider to provide the Service at a Tariffset in a way
that allows the User or Prospective User to recoup some or all of
theunrecouped portion of the capital
contribution.Safe Operation of a Covered Pipeline6.21Where the
Service Provider reasonably believes that it is not possible to
accommodatea Prospective User's requirement for a
Service consistently with the safe operation ofthe Covered
Pipeline and prudent pipeline practices accepted in the
industry:(a)the Arbitrator must not make a
decision that the Service Provider reasonablybelieves is not
consistent with the safe operation of the Covered Pipeline
andprudent pipeline practices accepted in the
industry;(b)where the Service is being sought by
the Prospective User on a noninterruptible
basis, the Arbitrator may require the Service Provider to offer
asimilar Service on an interruptible basis
and for the correspondinginterruptible price, where that would
be consistent with the safe operation ofthe Covered
Pipeline and prudent pipeline practices accepted in the
industry;and(c)the Service
Provider must disclose to the Prospective User the assumptions
ithas used in determining that it is not
possible to accommodate the ProspectiveUser's
requirement for a Service consistently with the safe operation of
theCovered Pipeline and prudent pipeline
practices accepted in the industry andmust provide the
Prospective User with the option of having an independentexpert nominated by the Service Provider, at
the cost of the Prospective User,give a
(nonbinding) opinion on the matter.Obligation to
Develop Capacity6.22In making a
decision under section 6.7 or section 6.13 the Arbitrator may
require theService Provider to expand the Capacity of a
Covered Pipeline to meet therequirements of
a Prospective User, provided that:(a)the
Service Provider is not required to extend the geographical range
of aCovered Pipeline;(b)the
expansion is technically and economically feasible and consistent
with thesafe and reliable provision of the
Service;(c)the Service Provider's legitimate
business interests are protected;[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200243
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems(d)the
Prospective User does not become the owner of a Covered Pipeline or
partof a Covered Pipeline without the agreement
of the Service Provider; and(e)the
Service Provider is not required to fund part or all of the
expansion(except where the Extensions/Expansions
Policy in the Access Arrangementfor the Covered
Pipeline states that the Service Provider will fund the NewFacility and the conditions specified in the
Extensions/Expansions Policyhave been
met).6.23If the
Arbitrator requires the Service Provider to install a New Facility
under section6.22 and the Prospective User bears the cost
of the expenditure on the New Facility,then:(a)all expenditure on the New Facility
constitutes New Facilities Investment bythe Service
Provider for the purposes of determining the Reference
Tariffs;(b)the Service Provider must levy a
Surcharge on Incremental Users (apart fromthe Prospective
User) consistent with the principles for Surcharges
containedin section 8 (with the Prospective User
treated as if it were paying aSurcharge for
the purposes of calculating a fair and reasonable Surcharge
forother Incremental Users); and(c)the terms of access for the
Prospective User shall reflect the value to theService Provider
of the contribution made by the Prospective User.Prospective User May Decide Not to Take a
Service6.24Where a decision
made under section 6.7 or section 6.13 requires the Service
Providerto provide, and the Prospective User to
accept, a Service on terms and conditionsspecified in the
decision, then:(a)subject to paragraph (b), the
Prospective User becomes bound by the decisionon the 14th day
after the day on which the decision was made, or, if
earlier,on the day the Prospective User notifies the
Service Provider that it intends tobe bound by the
decision; and(b)the Prospective User is not bound by
the decision if it notifies the Arbitratorthat it does not
intend to be bound by the decision within 14 days after theday
on which the decision was made (unless it has previously notified
theService Provider under paragraph (a), in
which case paragraph (a) applies).Reservation of
Capacity During an Access Dispute6.25No
priority rights of a User or Prospective User who is a party to a
dispute shall bealtered during the period of that dispute
until the Arbitrator's decision has been madeunder section
6.7 or section 6.13.Obligation to Reflect the Decision in
a Draft Contract6.26Where a decision
under section 6.7 or section 6.13 requires the Service Provider
toprovide a Service to the Prospective User on
terms and conditions specified in thedecision, the
Arbitrator may, as part of that decision, require the Service
Provider andProspective User to represent that decision
in the form of a contract between theparties and to
submit to the Arbitrator, within 14 days following the date the
decisioncomes into effect, either (at the choice of
the Service Provider or Prospective User):(a)a
copy of a draft contract; or(b)a
copy of a signed contract.44This version is
not published under theLegislation Revision and Publication
Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 26.27If
the parties do not submit the draft contract (or a copy of a signed
contract) to theArbitrator within the 14 day period referred
to in section 6.26, then the Arbitrator maymake a decision
on the form of any terms and conditions in the draft contract that
havenot been resolved within that time.7—GENERAL REGULATORY AND
MISCELLANEOUSPROVISIONSThis section of
the Code contains a number of miscellaneous provisions, including
provisionsdealing with the following.Associate Contracts- A Service
Provider is required to obtain the Relevant Regulator'sconsent before entering into certain
contracts (principally any contract with an Associate forthe
provision of a Service provided by means of a Covered Pipeline).
The Relevant Regulator'sdecision to not approve an Associate
Contract may be subject to review by the RelevantAppeals Body under the Gas Pipelines Access
Law.Decisions of the NCC, Relevant Minister,
Relevant Regulator and Arbitrator- Each
decisionto be made by the NCC, Relevant Minister,
Relevant Regulator or Arbitrator under the Codemust include
reasons. A copy of the decision and the reasons for it should be
placed on aPublic Register.Extensions to
Time Limits- Provision is made for the extension of
certain time limits in theCode.Approval of
Relevant Regulator Required for Associate Contracts7.1A Service Provider must not enter into
an Associate Contract without first obtainingthe approval of
the Relevant Regulator. The Relevant Regulator must not refuse
toapprove a proposed Associate Contract unless
it considers that the contract wouldhave the effect,
or would be likely to have the effect, of substantially
lessening,preventing or hindering competition in a
market.7.2If an Associate Contract provides for
the supply of Services at the Reference Tariff theRelevant Regulator may make a decision under
section 7.1 without conducting publicconsultation.7.3In
all other cases the Relevant Regulator must, prior to making a
decision undersection 7.1, conduct such public
consultations as it considers appropriate. Inconducting such
public consultations the Relevant Regulator may, but need not,
makepublic the content of part or all of the
Associate Contract. The Relevant Regulatormust not make
public any part of the Associate Contract which the Service
Providerclaims is confidential or commercially
sensitive except where the Relevant Regulatoris of the
opinion the disclosure of the part of the Associate Contract
concerned wouldnot be unduly harmful to the legitimate
business interests of the Service Provider or aUser or
Prospective User.7.4The Relevant Regulator is deemed to
have approved an Associate Contract if it doesnot notify the
Service Provider that it does not approve the Contract
within:(a)21 days after the day on which the
Service Provider's application to enter intothe Associate
Contact was received by the Relevant Regulator; or[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200245
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems(b)if,
within that 21 day period, the Relevant Regulator notifies the
ServiceProvider that it requires additional
information from the Service Provider toconsider the
application - the period of 21 days after the day on which
theService Provider's application to enter into
the Associate Contract wasreceived by the Relevant Regulator
plus the number of days in the periodcommencing on
the day on which the Relevant Regulator gave notice to theService Provider and ending on the day on
which the Relevant Regulatorreceives the
additional information from the Service Provider.7.5If the Relevant Regulator conducts a
public consultation in relation to an AssociateContract the
references in clause 7.4 to 21 days shall be read as references to
49 days.7.6A decision by the Relevant Regulator
not to approve an Associate Contract is subjectto review by the
Relevant Appeals Body under the Gas Pipelines Access Law.Decisions by the NCC, Relevant Minister,
Relevant Regulator and Arbitrator7.7If
the NCC, Relevant Minister, Relevant Regulator or Arbitrator is
required under thisCode to make a draft decision or a final
decision, the NCC, Relevant Minister,Relevant
Regulator or Arbitrator concerned must include its reasons in its
draftdecision or final decision.7.8Subject to section 7.12, the NCC shall
as soon as possible provide to the CodeRegistrar to
place on the Public Register a copy of:(a)each
application for Coverage of a Pipeline and application for
revocation ofCoverage of a Pipeline;(b)each
submission received by the NCC in relation to any such
application;(c)each recommendation made by the NCC in
relation to any such applicationand the reasons
given for such a recommendation; and(d)each
decision made by the Relevant Minister (and the Relevant Appeals
Bodyunder the Gas Pipelines Access Law, if
applicable) in relation to any suchapplication and
the reasons given for such a decision, including a
descriptionof the Pipeline the subject of that
decision.7.9Subject to section 7.12, each Relevant
Regulator shall as soon as possible provide tothe Code
Registrar to place on the Public Register:(a)in
relation to Access Arrangements a copy of:(i)each
proposed Access Arrangement or proposed revisions of anAccess Arrangement;(ii)each
proposed Access Arrangement Information or proposedrevisions of Access Arrangement
Information;(iii)each submission
received by the Relevant Regulator in relation to theAccess Arrangement or revisions to the
Access Arrangement;(iv)each submission
received by the Relevant Regulator in relation to theAccess Arrangement Information or revisions
to the AccessArrangement Information;46This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2(v)each
draft decision and final decision made by the RelevantRegulator (and the Relevant Appeals Body
under the Gas PipelinesAccess Law if applicable) in relation
to a proposed AccessArrangement, proposed revisions to an
Access Arrangement,proposed Access Arrangement Information or
proposed revisions toAccess Arrangement Information and the
reasons given for eachsuch draft or final decision;(vi)if an Access
Arrangement submitted under section 2.3 is accepted, adescription of the Pipeline which thereby
became Covered;(b)in relation to competitive tender
processes a copy of:(i)each Tender
Approval Request and Final Approval Request theRelevant
Regulator receives;(ii)each submission
and other document the Relevant Regulator receivesrelating to a Tender Approval Request and
Final Approval Request;(iii)each decision by
the Relevant Regulator relating to a TenderApproval Request
or Final Approval Request and the reasons givenfor each such
decision;(iv)a description of
any proposed Pipeline that becomes a CoveredPipeline
pursuant to section 3.34;(c)in relation to
arbitrations, if the Regulator considers it appropriate, a copy
ofeach draft or final decision of the Relevant
Regulator (or an Arbitratorappointed by it)
under section 6 of the Code and the reasons given for eachsuch
draft or final decision;(d)in relation to
ring fencing a copy of:(i)each application
received by the Relevant Regulator under section 4;(ii)each submission
received by the Relevant Regulator in relation toadding to or waiving ring fencing
obligations;(iii)any draft or
final decision by the Relevant Regulator (and theRelevant Appeals Body under the Gas
Pipelines Access Law ifapplicable) to add to or waive ring
fencing obligations and thereasons given
for any such draft or final decision;(e)in
relation to Associate Contracts a copy of:(i)each
decision made by the Relevant Regulator under section 7.1
andthe reasons given for any such
decision;(ii)if the Relevant
Regulator considers it appropriate, the proposedAssociate Contract.Public
Register7.10Subject to
section 7.12 the Code Registrar shall keep a Public Register and
place onthat register:(a)a
description of each Covered Pipeline;(b)each
document provided to it by the NCC under section 7.8 of the Code
andsection 10 or 11 of the Gas Pipelines Access
Law;[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200247
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems(c)each
document provided to it by a Relevant Regulator under section 7.9;
and(d)each document provided to it by a
Service Provider under either section 1.41or section
3.20.Treatment of Confidential Information7.11Where a person
furnishes information or a document to the NCC, Relevant Minister
orRelevant Regulator (other than in compliance
with a notice given by the RelevantRegulator under
section 41 of the Gas Pipelines Access Law) the person may, at
thetime when the document is furnished, state
that the information or document or part ofthe information
or document is of a confidential or commercially sensitive
nature.7.12The NCC,
Relevant Minister and Relevant Regulator must not disclose the
contents ofany such information or document or any such
part of the information or document toany person or
provide it to the Code Registrar to place on the Public Register
exceptwhere the NCC, Relevant Minister or Relevant
Regulator is of the opinion that thedisclosure of
the information or document or part of the information or
documentwould not be unduly harmful to the
legitimate business interests of the ServiceProvider or a
User or Prospective User.7.13Notwithstanding
section 7.12 the information provided to the Code Registrar by
theRelevant Regulator under section 7.9 must
include at least the information statedbelow for the
decision identified:(a)A decision in
relation to an Access Arrangement or revisions to an AccessArrangement:(i)the
valuations derived from employing each asset valuationmethodology to which regard was had pursuant
to section 8.10(a)and (b) and the assumptions on which those
valuations were based;(ii)the Initial
Capital Base for a Covered Pipeline that is in existence atthe
Commencement of the Code;(iii)a summary of the
assumptions and reasoning that resulted in thefigure adopted
as the Initial Capital Base for a Covered Pipeline thatis
in existence at the commencement of the Code, including if
theInitial Capital Base for a Covered Pipeline
that is in existence at thecommencement of
the Code is outside the range of valuesdetermined
according to sections 8.10(a) and (b), detailed reasons asto
why a figure outside that range was selected.(b)A
decision in relation to an Access Arrangement or revisions to an
AccessArrangement where the decision was to
approve a proposed AccessArrangement or proposed revisions:
details of where the assumptions adoptedby the Regulator
in approving the (or drafting and approving its own) AccessArrangement differ from the assumptions
described in the AccessArrangement Information and reasons
for that difference.7.14The Relevant
Regulator may provide a person who makes a request for
furtherinformation with such further information
relevant to the decision as it sees fit, otherthan information
which could not be provided to the Code Registrar undersection 7.12.48This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2Operational
Guidelines7.15In exercising
any functions under the Code the Relevant Regulator and the
Arbitratormay take into account any guidelines on
operational procedures approved by theRelevant
Ministers of all the Scheme Participants on the recommendation of
theNGPAC.Extensions to
Time Limits7.16If any section
of this Code requires the NCC or the Relevant Minister to do
somethingwithin a certain period, the NCC or the
Relevant Minister, as the case may be, may, ina particular
case, increase the period it has to do the thing in question by the
periodoriginally specified in the section of the
Code concerned.7.17The NCC or the
Relevant Minister may only increase the period it has to do a
thingunder section 7.16 if, before the day on
which the Code would have required the thingto be done, it
publishes in a national newspaper notice of the decision to
increase theperiod.7.18The
NCC and the Relevant Minister may increase the period it has to do
a thing anynumber of times provided on each occasion it
does so it complies with section 7.17.7.19The
Relevant Regulator may on one or more occasions, at its discretion,
grantextensions to any time period in this Code
that applies to a person other than theRelevant
Regulator, the NCC or the Relevant Minister, provided that an
applicationfor that extension has been received by it
before the expiration of the time period inquestion. Time
periods applying to the Relevant Regulator, NCC or Relevant
Ministermay be extended as otherwise provided in
this Code.8—REFERENCE TARIFF PRINCIPLESThis
section of the Code sets out the principles with which Reference
Tariffs and a ReferenceTariff Policy (the principles
underlying the calculation of Reference Tariffs) included in
anAccess Arrangement must comply.General PrinciplesThe Reference
Tariff Principles are designed to ensure that certain key
principles are reflectedin the Reference Tariff Policy and in
the calculation of all Reference Tariffs. Within theseparameters, the Reference Tariff Principles
are designed to provide a high degree of flexibilityso
that the Reference Tariff Policy can be designed to meet the
specific needs of each pipelinesystem. The
overarching requirement is that when Reference Tariffs are
determined andreviewed, they should be based on the
efficient cost (or anticipated efficient cost) of providingthe
Reference Services.The Principles also require that, where
appropriate, Reference Tariffs be designed to providethe
Service Provider with the ability to earn greater profits (or less
profits) than anticipatedbetween reviews if it outperforms (or
underperforms against) the benchmarks that wereadopted in
setting the Reference Tariffs. The intention is that, to the extent
possible, ServiceProviders be given a market-based incentive
to improve efficiency and to promote efficientgrowth of the
gas market (an Incentive Mechanism).[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200249
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsThe Reference
Tariff Policy and all Reference Tariffs should be designed to
achieve a numberof objectives, including providing the
Service Provider with the opportunity to earn a stream ofrevenue that recovers the costs of
delivering the Reference Service over the expected life of
theassets used in delivering that Service, to
replicate the outcome of a competitive market, and tobe
efficient in level and structure.Principles for
determining the Total RevenueReference
Tariffs are to be set on the basis of the sales of all Services
provided by the CoveredPipeline delivering (or being forecast
to deliver) a certain amount of revenue (Total Revenue)over
the period for which the Reference Tariffs remain in effect (the
Reference Tariff Period).The Reference Tariff Principles
specify three methodologies for determining the TotalRevenue:•Cost
of Service: where the Total Revenue is set to recover 'costs' with
those costs to becalculated on the basis of a return (Rate of
Return) on the value of the assets that formthe Covered
Pipeline (Capital Base), depreciation on the Capital Base
(Depreciation)and the operating, maintenance and other
non-capital costs (Non-Capital Costs)incurred in
delivering all Services.•IRR: where the
Total Revenue is set to provide an acceptable Internal Rate of
Return(IRR) for the Covered Pipeline on the basis
of forecast costs and sales.•NPV:
where the Total Revenue is set to deliver a Net Present Value (NPV)
for theCovered Pipeline (on the basis of forecast
costs and sales) equal to zero, using anacceptable
discount rate.While these methodologies are different ways
of assessing the Total Revenue, their outcomesshould be
consistent (for example, it is possible to express any NPV
calculation in terms of aCost of Service calculation by the
choice of an appropriate depreciation schedule). In
addition,other methodologies that can be translated
into one of these forms are acceptable (such as amethod that provides a real rate of return
on an inflation-indexed capital base).The principles
that guide the determination of the Reference Tariff Period are set
out inSection 3 of the Code. These principles
permit the Reference Tariff Period to be any length oftime
that is consistent with the objectives for setting Reference
Tariffs. However, the RelevantRegulator must
consider (but is not bound to require) inserting safeguards against
excessiveforecast error if the Reference Tariff
Period is over five years.The Reference Tariff Principles
recognise that these methods for calculating the Total
Revenuemay provide a range of feasible outcomes. In
narrowing this range, the Relevant Regulator ispermitted to
have regard to various financial and performance indicators.Broad principles for establishing the
Capital Base when Reference Tariffs are set initially andreviewed are set out, including principles
for:•establishing the Initial Capital Base
(including principles for valuing pipelines inexistence at the
commencement of the Code and those that come into existence
afterthe commencement of the Code);•valuing investment in new facilities
(including principles for determining whether NewFacilities Investment may be included in the
Capital Base, and for addressingdifferences
between forecast and actual capital expenditure) and•reducing the Capital Base where assets
cease to contribute, or make a reducedcontribution, to
the delivery of Services.50This version is
not published under theLegislation Revision and Publication
Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2These principles
apply equally to all of the methodologies for assessing Total
Revenue, and toclarify this, certain detailed principles
are translated into a form that is applicable to the IRRand
NPV methodologies.Broad principles for determining the Rate of
Return are also set out, essentially requiring areturn which is commensurate with the
prevailing conditions in the market for funds and therisks involved in delivering the Reference
Service.A number of principles are specified for the
Depreciation Schedule, which include that:•the
time-path for Reference Tariffs that is implied by the Depreciation
Schedule beconsistent with efficient market growth, and
in particular, to avoid deliveringReference
Tariffs that are excessively high in early years and low in later
years;•depreciation should be over the
economic life of the assets that form the CoveredPipeline; and•assets be depreciated only once for the
purposes of setting Reference Tariffs.Again, these
principles apply equally to all of the methodologies for assessing
Total Revenue,and to clarify this, certain detailed
principles are translated into a form that is applicable tothe
IRR and NPV methodologies.Finally, the Reference Tariff
Principles specify that Non Capital Costs are the operating,maintenance and other costs incurred (or
forecast to be incurred) in the delivery of allServices
provided by the Pipeline, and provide that these can be factored
into ReferenceTariffs if 'prudent'.Allocation of
the Total RevenueThe Reference Tariff Principles set out
broad principles for determining the portion of theTotal Revenue that a Reference Tariff should
be designed to recover from sales of theReference
Service, and the portion of revenue that should be recovered from
each User of thatReference Service. These principles
essentially require that the Charge paid by any User of aReference Service be cost reflective,
although substantial flexibility is provided.An exception to
the allocation rule is the case of 'prudent discounts'. Where a
User is receivinga discount (which implies the Service
Provider is receiving less revenue from that User thanthat
assumed in the calculation of Reference Tariffs), and such a
discount is 'prudent', theRelevant Regulator has the discretion
(when Reference Tariffs are set initially or reviewed) topermit the Service Provider to recover some
or all of that shortfall in revenue by raisingReference
Tariffs to other Users (if the discount is prudent, the Reference
Tariff would belower for all Users).Other
PrinciplesThis section also establishes:•principles concerning the use and
design of Incentive Mechanisms;•a
mechanism whereby certain parts of the Reference Tariff Policy
cannot be changedat a review of the Access Arrangement for a
certain period; and•principles for the charging of
Surcharges in relation to Incremental Capacity.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200251
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsGeneral
Principles8.1A Reference Tariff and Reference
Tariff Policy should be designed with a view toachieving the
following objectives:(a)providing the
Service Provider with the opportunity to earn a stream ofrevenue that recovers the efficient costs of
delivering the Reference Serviceover the
expected life of the assets used in delivering that Service;(b)replicating the outcome of a
competitive market;(c)ensuring the safe and reliable
operation of the Pipeline;(d)not distorting
investment decisions in Pipeline transportation systems or
inupstream and downstream industries;(e)efficiency in the level and structure
of the Reference Tariff; and(f)providing an incentive to the Service
Provider to reduce costs and to developthe market for
Reference and other Services.To the extent
that any of these objectives conflict in their application to a
particularReference Tariff determination, the Relevant
Regulator may determine the manner inwhich they can
best be reconciled or which of them should prevail.8.2The factors about which the Relevant
Regulator must be satisfied in determining toapprove a
Reference Tariff and Reference Tariff Policy are that:(a)the revenue to be generated from the
sales (or forecast sales) of all Servicesover the Access
Arrangement Period (theTotal Revenue) should
beestablished consistently with the principles
and according to one of themethodologies
contained in this section 8;(b)to
the extent that the Covered Pipeline is used to provide a number
ofServices, that portion of Total Revenue that
a Reference Tariff is designed torecover (which
may be based upon forecasts) is calculated consistently withthe
principles contained in this section 8;(c)a
Reference Tariff (which may be based upon forecasts) is designed so
thatthe portion of Total Revenue to be recovered
from a Reference Service(referred to in paragraph (b)) is
recovered from the Users of that ReferenceService
consistently with the principles contained in this section
8;(d)Incentive Mechanisms are incorporated
into the Reference Tariff Policywherever the
Relevant Regulator considers appropriate and such IncentiveMechanisms are consistent with the
principles contained in this section 8; and(e)any
forecasts required in setting the Reference Tariff represent best
estimatesarrived at on a reasonable basis.52This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2Form of
Regulation8.3Subject to these requirements and to
the Relevant Regulator being satisfied that it isconsistent with the objectives contained in
section 8.1, the manner in which aReference Tariff
may vary within an Access Arrangement Period throughimplementation of the Reference Tariff
Policy is within the discretion of the ServiceProvider. For
example, a Reference Tariff may be designed on the basis of:(a)a "price path" approach, whereby a
series of Reference Tariffs are determinedin advance for
the Access Arrangement Period to follow a path that is
forecastto deliver a revenue stream calculated
consistently with the principles in thissection 8, but
is not adjusted to account for subsequent events until thecommencement of the next Access Arrangement
Period;(b)a "cost of service" approach, whereby
the Tariff is set on the basis of theanticipated
costs of providing the Reference Service and is adjustedcontinuously in light of actual outcomes
(such as sales volumes and actualcosts) to ensure
that the Tariff recovers the actual costs of providing theService; or(c)variations or combinations of these
approaches.Total Revenue8.4The
Total Revenue (a portion of which will be recovered from sales of
ReferenceServices) should be calculated according to
one of the following methodologies:Cost of
Service: The Total Revenue is equal to the cost of
providing all Services(some of which may be the forecast of
such costs), and with this cost to be calculatedon
the basis of:(a)a return (Rate of
Return) on the value of the capital assets that
form theCovered Pipeline (Capital
Base);(b)depreciation of
the Capital Base (Depreciation); and(c)the operating, maintenance and other
non-capital costs incurred in providingall Services
provided by the Covered Pipeline (Non-Capital
Costs).IRR:
The Total Revenue will provide a forecast Internal Rate of Return
(IRR) for theCovered Pipeline that is consistent with the
principles in sections 8.30 and 8.31. TheIRR should be
calculated on the basis of a forecast of all costs to be incurred
inproviding such Services (including capital
costs) during the Access ArrangementPeriod.The
initial value of the Covered Pipeline in the IRR calculation is to
be given by theCapital Base at the commencement of the
Access Arrangement Period and theassumed residual
value of the Covered Pipeline at the end of the Access
ArrangementPeriod (Residual
Value) should be calculated consistently with the
principles in thissection 8.NPV:
The Total Revenue will provide a forecast Net Present Value (NPV)
for theCovered Pipeline equal to zero. The NPV
should be calculated on the basis of aforecast of all
costs to be incurred in providing such Services (including capital
costs)during the Access Arrangement Period, and
using a discount rate that would providethe Service
Provider with a return consistent with the principles in sections
8.30 and8.31.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200253
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsThe initial
value of the Covered Pipeline in the NPV calculation is to be given
by theCapital Base at the commencement of the
Access Arrangement Period and theassumed Residual
Value at the end of the Access Arrangement Period should becalculated consistently with the principles
in this section 8.The methodology used to calculate the Cost
of Service, an IRR or NPV should be inaccordance with
generally accepted industry practice.8.5Other methodologies may be used provided the
resulting Total Revenue can beexpressed in
terms of one of the methodologies described above.8.6In view of the manner in which the
Rate of Return, Capital Base, DepreciationSchedule and Non
Capital Costs may be determined (in each case involving
variousdiscretions), it is possible that a range of
values may be attributed to the TotalRevenue
described in section 8.4. In order to determine an appropriate
value withinthis range the Relevant Regulator may have
regard to any financial and operationalperformance
indicators it considers relevant in order to determine the level of
costswithin the range of feasible outcomes under
section 8.4 that is most consistent with theobjectives
contained in section 8.1.8.7If the Relevant
Regulator has considered financial and operational
performanceindicators for the purposes of section 8.6,
it must identify the indicators and providean explanation
of how they have been taken into account.Principles for
Establishing the Capital Base8.8Principles for establishing the Capital Base
for the Covered Pipeline when a ReferenceTariff is first
proposed for a Reference Service (ie, for the first Access
ArrangementPeriod) are set out in sections 8.10 to
8.14.8.9Sections 8.15 to 8.29 then describe
the principles to be applied in adjusting the valueof
the Capital Base over time as a result of additions to the Covered
Pipeline and as aresult of parts of the Covered Pipeline
ceasing to be used for the delivery of Services.Consistently with those principles, the
Capital Base at the commencement of eachAccess
Arrangement Period after the first, for the Cost of Service
methodology, isdetermined as:(a)the
Capital Base at the start of the immediately preceding
AccessArrangement Period; plus(b)the
New Facilities Investment or Recoverable Portion (whichever is
relevant)in the immediately preceding Access
Arrangement Period (adjusted asrelevant as a
consequence of section 8.22 to allow for the differences
betweenactual and forecast New Facilities
Investment); less(c)Depreciation for the immediately
preceding Access Arrangement Period; less(d)Redundant Capital identified prior to the
commencement of that AccessArrangement
Period,and for the IRR or NPV methodology, is
determined as:(e)the Residual Value assumed in the
previous Access Arrangement Period(adjusted as
relevant as a consequence of section 8.22 to allow for thedifferences between actual and forecast New
Facilities Investment); less(f)Redundant Capital identified prior to the
commencement of that AccessArrangement
Period.54This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2Initial Capital
Base - Existing Pipelines8.10When a Reference
Tariff is first proposed for a Reference Service provided by
aCovered Pipeline that was in existence at
the commencement of the Code, thefollowing
factors should be considered in establishing the initial Capital
Base for thatPipeline:(a)the
value that would result from taking the actual capital cost of the
CoveredPipeline and subtracting the accumulated
depreciation for those assetscharged to Users
(or thought to have been charged to Users) prior to thecommencement of the Code;(b)the value that would result from
applying the "depreciated optimisedreplacement
cost" methodology in valuing the Covered Pipeline;(c)the value that would result from
applying other well recognised assetvaluation
methodologies in valuing the Covered Pipeline;(d)the
advantages and disadvantages of each valuation methodology
appliedunder paragraphs (a), (b) and (c);(e)international best practice of
Pipelines in comparable situations and theimpact on the
international competitiveness of energy consuming
industries;(f)the basis on which Tariffs have been
(or appear to have been) set in the past,the economic
depreciation of the Covered Pipeline, and the historical
returnsto the Service Provider from the Covered
Pipeline;(g)the reasonable expectations of persons
under the regulatory regime thatapplied to the
Pipeline prior to the commencement of the Code;(h)the
impact on the economically efficient utilisation of gas
resources;(i)the comparability with the cost
structure of new Pipelines that may competewith the
Pipeline in question (for example, a Pipeline that may by-pass
someor all of the Pipeline in question);(j)the price paid for any asset recently
purchased by the Service Provider andthe
circumstances of that purchase; and(k)any
other factors the Relevant Regulator considers relevant.8.11The initial
Capital Base for Covered Pipelines that were in existence at
thecommencement of the Code normally should not
fall outside the range of valuesdetermined under
paragraphs (a) and (b) of section 8.10.Initial Capital
Base - New Pipelines8.12When a Reference
Tariff is first proposed for a Reference Service provided by
aCovered Pipeline that has come into
existence after the commencement of the Code,the initial
Capital Base for the Covered Pipeline is, subject to section 8.13,
the actualcapital cost of those assets at the time
they first enter service. A new Pipeline does notneed
to pass the tests described in section 8.16.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200255
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems8.13If
the period between the time the Covered Pipeline first enters
service and the timethe Reference Tariff is proposed is
such as reasonably to warrant adjustment to theactual capital
cost in establishing the initial Capital Base, then that cost
should beadjusted to account for New Facilities
Investment or the Recoverable Portion(whichever is
relevant), Depreciation and Redundant Capital incurred or
identifiedduring that period (as described in section
8.9).Initial Capital Base - After the Expiry of
an Access Arrangement8.14Where an Access
Arrangement has expired, the initial Capital Base at the time a
newAccess Arrangement is approved is the
Capital Base applying at the expiry of theprevious Access
Arrangement adjusted to account for the New Facilities Investment
orthe Recoverable Portion (whichever is
relevant), Depreciation and Redundant Capital(as described in
section 8.9) as if the previous Access Arrangement had remained
inforce.New Facilities
Investment8.15The Capital Base
for a Covered Pipeline may be increased from the commencement
ofa new Access Arrangement Period to recognise
additional capital costs incurred inconstructing New
Facilities for the purpose of providing Services.8.16The amount by
which the Capital Base may be increased is the amount of the
actualcapital cost incurred (New Facilities
Investment) provided that:(a)that
amount does not exceed the amount that would be invested by a
prudentService Provider acting efficiently, in
accordance with accepted goodindustry
practice, and to achieve the lowest sustainable cost of
deliveringServices; and(b)one
of the following conditions is satisfied:(i)the
Anticipated Incremental Revenue generated by the New
Facilityexceeds the New Facilities Investment;
or(ii)the Service
Provider and/or Users satisfy the Relevant Regulator thatthe
New Facility has system-wide benefits that, in the RelevantRegulator's opinion, justify the approval of
a higher Reference Tarifffor all Users; or(iii)the
New Facility is necessary to maintain the safety, integrity
orContracted Capacity of Services.8.17For the purposes
of administering section 8.16(a), the Relevant Regulator
mustconsider:(a)whether the New Facility exhibits economies
of scale or scope and theincrements in which Capacity can be
added; and(b)whether the lowest sustainable cost of
delivering Services over a reasonabletime frame may
require the installation of a New Facility with Capacitysufficient to meet forecast sales of
Services over that time frame.8.18A
Reference Tariff Policy may, at the discretion of the Service
Provider, state that theService Provider will undertake New
Facilities Investment that does not satisfy therequirements of
section 8.16. If the Service Provider incurs such New
FacilitiesInvestment, the Capital Base may be
increased by that part of the New FacilitiesInvestment which
does satisfy section 8.16 (theRecoverable
Portion).56This version is
not published under theLegislation Revision and Publication
Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 28.19The
Reference Tariff Policy may also provide that an amount in respect
of the balanceof the New Facilities Investment may
subsequently be added to the Capital Base if atany time the
type and volume of services provided using the increase in
Capacityattributable to the New Facility change such
that any part of the SpeculativeInvestment Fund
(as defined below) would then satisfy the requirements of
section8.16. The amount of theSpeculative
Investment Fundat any time is equal to:(a)the
difference between the New Facilities Investment and the
RecoverablePortion, less any amount the Service
Provider notifies the Relevant Regulator(at the time the
expenditure is incurred) that it has elected to recover
througha Surcharge under section 8.25 (Speculative Investment); plus(b)an annual increase in that amount
calculated on a compounded basis at a rateof return
approved by the Relevant Regulator which rate of return may,
butneed not, be different from the rate of
return implied in the Reference Tariff;less(c)any part of the Speculative Investment
Fund previously added to the CapitalBase under this
section 8.19.Forecast Capital Expenditure8.20Consistent with
the methodologies described in section 8.4, Reference Tariffs may
bedetermined on the basis of New Facilities
Investment that is forecast to occur withinthe Access
Arrangement Period provided that the New Facilities Investment
isreasonably expected to pass the requirements
in section 8.16 when the New FacilitiesInvestment is
forecast to occur.8.21If the Relevant
Regulator agrees to Reference Tariffs being determined on the basis
offorecast New Facilities Investment, this
need not (at the discretion of the RelevantRegulator) imply
that such New Facilities Investment will meet the requirements
ofSection 8.16 when the Relevant Regulator
considers revisions to an AccessArrangement
submitted by a Service Provider. However, the Relevant Regulator
may,at its discretion, agree (on written
application by the Service Provider) at the time atwhich the New Facilities Investment takes
place that it meets the requirements ofsection 8.16,
the effect of which is to bind the Relevant Regulator's decision
when theRelevant Regulator considers revisions to an
Access Arrangement submitted by theService
Provider. For the purposes of public consultation, any such
application mustbe treated as if it were a proposed revision
to the Access Arrangement submittedunder section
2.28.8.22For the purposes
of calculating the Capital Base at the commencement of thesubsequent Access Arrangement Period, either
the Reference Tariff Policy shoulddescribe or the
Relevant Regulator shall determine when the Relevant
Regulatorconsiders revisions to an Access Arrangement
submitted by a Service Provider, howthe New
Facilities Investment is to be determined for the purposes of
section 8.9. Thisincludes whether (and how) the Capital Base
at the commencement of the next AccessArrangement
Period should be adjusted if the actual New Facilities Investment
isdifferent from the forecast New Facilities
Investment (with this decision to bedesigned to best
meet the objectives in section 8.1).[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200257
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsCapital
Contributions8.23New Facilities
Investment may also be added to the Capital Base when a User makes
aCapital Contribution (as defined below) in
respect of a New Facility. Nothing in thisCode prevents a
User agreeing to pay the Service Provider a Charge which
exceedsthe Charge that would apply under a
Reference Tariff for a Reference Service (or, inrelation to another Service, under the
Equivalent Tariff) in any circumstanceincluding,
without limitation, if the excess is paid in respect of the funding
of a NewFacility (in which case the extra payment is
aCapital Contribution).8.24Any expenditure
on a New Facility in respect of which a User makes a CapitalContribution constitutes New Facilities
Investment incurred by the Service Providerfor the purposes
of this section 8. The User's obligations to the Service Provider
andthe Service Provider's obligations to the
User with respect to the Capital Contributionshall be as
agreed between the Service Provider and User.Surcharges8.25As
contemplated in section 8.19(a), unless precluded by the Service
Provider'sExtensions/Expansions Policy, a Service
Provider may elect by written notice to theRelevant
Regulator to recover all or part of an amount that it would not
recover at thePrevailing Tariffs through a Surcharge
(after commencement of the next AccessArrangement
Period, this amount is that amount that would otherwise
constituteSpeculative Investment). ASurchargeis a Charge in
addition to the Charge thatwould apply
under a Reference Tariff for a Reference Service (or, in relation
toanother Service, under the Tariff that would
be determined by the Arbitrator inarbitrating an
access dispute under section 6) that is levied on Users of
IncrementalCapacity in order for the Service Provider
to recover some or all of the cost of NewFacilities
Investment that can not be recovered at the Prevailing Tariffs (and
so cannotbe included in the Capital Base in
subsequent Access Arrangement Periods). If theRelevant
Regulator receives such a written notice, it may approve the
Surcharge, withan approval having the effect of binding the
Arbitrator in an access dispute undersection 6. For
the purposes of public consultation, the notice shall be treated as
if itwere a proposed revision to the Access
Arrangement submitted under section 2.28.8.26A
Service Provider may levy a Surcharge on Users of Incremental
Capacity providedthe following principles apply:(a)the Surcharges are designed to recover
only that part of the New FacilitiesInvestment that
satisfies the requirement in section 8.16(a);(b)the
costs that the Surcharges are designed to recover do not include
any coststhat are included in the Speculative
Investment Fund; and(c)the structure of
the Surcharges reflect a fair and reasonable sharing of thetotal recoverable cost between Incremental
Users (and for this purpose anyUser who is
paying a Capital Contribution should be assumed to be paying
aSurcharge).58This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2Capital
Redundancy8.27A Reference
Tariff Policy may include (and the Relevant Regulator may require
that itinclude) a mechanism that will, with effect
from the commencement of the nextAccess
Arrangement Period, remove an amount from the Capital Base (RedundantCapital)
for a Covered Pipeline so as to:(a)ensure that assets which cease to contribute
in anyway to the delivery ofServices are not
reflected in the Capital Base; and(b)share costs associated with a decline in the
volume of sales of Servicesprovided by
means of the Covered Pipeline between the Service Provider
andUsers.Before approving
a Reference Tariff which includes such a mechanism, the
RelevantRegulator must take into account the
uncertainty such a mechanism would cause andthe effect that
uncertainty would have on the Service Provider, Users and
ProspectiveUsers. If a Reference Tariff does include
such a mechanism, the determination of theRate of Return
(under sections 8.30 and 8.31) and the economic life of the
assets(under section 8.33) should take account of
the resulting risk (and cost) to the ServiceProvider of a
fall in the revenue received from sales of Services provided by
means ofthe Covered Pipeline or part of the Covered
Pipeline.8.28If assets that
are the subject of Redundant Capital subsequently contribute, or
make anenhanced contribution, to the delivery of
Services, the assets may be treated as a NewFacility having
New Facilities Investment (for the purpose of sections 8.16, 8.17,
8.18and 8.19) equal to the Redundant Capital
Value increased annually on a compoundedbasis by the
Rate of Return from the time the Redundant Capital Value was
removedfrom the Capital Base.8.29A
Reference Tariff Policy may include (and the Relevant Regulator may
require it toinclude) other mechanisms that have the same
effect on Reference Tariffs as the abovebut which do not
result in the removal of any amount from the Capital Base.Rate
of Return8.30The Rate of
Return used in determining a Reference Tariff should provide a
returnwhich is commensurate with prevailing
conditions in the market for funds and the riskinvolved in
delivering the Reference Service (as reflected in the terms and
conditionson which the Reference Service is offered
and any other risk associated withdelivering the
Reference Service).8.31By way of
example, the Rate of Return may be set on the basis of a weighted
averageof the return applicable to each source of
funds (equity, debt and any other relevantsource of
funds). Such returns may be determined on the basis of a well
acceptedfinancial model, such as the Capital Asset
Pricing Model. In general, the weightedaverage of the
return on funds should be calculated by reference to a
financingstructure that reflects standard industry
structures for a going concern and bestpractice.
However, other approaches may be adopted where the Relevant
Regulator issatisfied that to do so would be consistent
with the objectives contained in section 8.1.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200259
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsDepreciation
Schedule - Cost of Service8.32The Depreciation
Schedule is the set of depreciation schedules (one of which
maycorrespond to each asset or group of assets
that form part of the Covered Pipeline) thatis the basis
upon which the assets that form part of the Capital Base are to
bedepreciated for the purposes of determining
a Reference Tariff (theDepreciationSchedule).8.33The Depreciation
Schedule should be designed:(a)so
as to result in the Reference Tariff changing over time in a manner
that isconsistent with the efficient growth of the
market for the Services providedby the Pipeline
(and which may involve a substantial portion of thedepreciation taking place in future periods,
particularly where the calculationof the Reference
Tariffs has assumed significant market growth and thePipeline has been sized accordingly);(b)so that each asset or group of assets
that form part of the Covered Pipeline isdepreciated over
the economic life of that asset or group of assets;(c)so that, to the maximum extent that is
reasonable, the depreciation schedulefor each asset
or group of assets that form part of the Covered Pipeline isadjusted over the life of that asset or
group of assets to reflect changes in theexpected
economic life of that asset or group of assets; and(d)subject to section 8.27, so that an
asset is depreciated only once (that is, sothat the sum of
the Depreciation that is attributable to any asset or group
ofassets over the life of those assets is
equivalent to the value of that asset orgroup of assets
at the time at which the value of that asset or group of
assetswas first included in the Capital
Base).Application of Depreciation Principles to
the IRR/NPV Methodology8.34If the IRR or
NPV methodology is used, then the notional depreciation over
theAccess Arrangement Period for each asset or
group of assets that form part of theCovered Pipeline
is:(a)for an asset that was in existence at
the commencement of the AccessArrangement
Period, the difference between the value of that asset in
theCapital Base at the commencement of the
Access Arrangement Period and thevalue of that
asset that is reflected in the Residual Value; and(b)for a New Facility installed during
the Access Arrangement Period, thedifference
between the actual cost or forecast cost of the Facility
(whicheveris relevant) and the value of that asset
that is reflected in the Residual Value,and, to comply
with section 8.33:(c)the Residual Value of the Covered
Pipeline should reflect notionaldepreciation
that meets the principles of section 8.33; and60This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2(d)the
Reference Tariff should change over the Access Arrangement Period
in amanner that is consistent with the efficient
growth of the market for theServices
provided by the Pipeline (and which may involve a
substantialportion of the depreciation taking place
towards the end of the AccessArrangement
Period, particularly where the calculation of the ReferenceTariffs has assumed significant market
growth and the Pipeline has been sizedaccordingly).8.35In
implementing the principles in section 8.33 or 8.34, regard must be
had to thereasonable cash flow needs for Non Capital
Costs, financing cost requirements andsimilar needs of
the Service Provider.Non Capital Costs8.36Non
Capital Costs are the operating, maintenance and other costs
incurred in thedelivery of the Reference Service.8.37A Reference
Tariff may provide for the recovery of all Non Capital Costs (or
forecastNon Capital Costs, as relevant) except for
any such costs that would not be incurredby a prudent
Service Provider, acting efficiently, in accordance with accepted
andgood industry practice, and to achieve the
lowest sustainable cost of delivering theReference
Service.Allocation of Revenue (Costs) between
Services8.38Subject to
sections 8.40 and 8.43, to the maximum extent that is commercially
andtechnically reasonable, the portion of the
Total Revenue (referred to in section 8.4)that a Reference
Tariff should be designed to recover (which may be based onforecasts) should include:(a)all of the Total Revenue that reflects
costs incurred (including capital costs)that are
directly attributable to the Reference Service; and(b)a share of the Total Revenue that
reflects costs incurred (including capitalcosts) that are
attributable to providing the Reference Service jointly withother Services, with this share to be
determined in accordance with amethodology that
meets the objectives in section 8.1 and is otherwise fair
andreasonable.8.39If
the Relevant Regulator requires that a different methodology be
used to determinethe portion of Total Revenue to be recovered
from particular Reference Servicespursuant to
section 8.38 than that proposed by the Service Provider and
described inthe Access Arrangement Information, the
Relevant Regulator shall in its decision onthe Access
Arrangement or revisions to an Access Arrangement concerned provide
adetailed explanation of the methodology that
it requires be used to allocate costspursuant to
section 8.38.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200261
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems8.40Notwithstanding section 8.38, if the revenue
assumed in the Total Revenue calculationunder section
8.4 reflects costs (including capital costs) that are attributable
toproviding the Reference Service jointly with
a Rebatable Service, then all or part ofthe Total
Revenue that would have been recovered from the Rebatable Service
undersection 8.38 (if that Service was a
Reference Service) may be recovered from theReference
Service provided that an appropriate portion of any revenue
realised fromsales of any such Rebatable Service is
rebated to Users of the Reference Service(either through
a reduction in the Reference Tariff or through a direct rebate to
therelevant User or Users). The structure of
such a rebate mechanism should bedetermined
having regard to the following objectives:(a)providing the Service Provider with an
incentive to promote the efficient useof Capacity,
including through the sale of Rebatable Services; and(b)Users of the Reference Service sharing
in the gains from additional sales ofServices,
including from sales of Rebatable Services.8.41Alternative approaches to allocating the
costs described in section 8.4 may be usedprovided they
have substantially the same effect as the approach outlined
insections 8.38 and 8.40.Allocation of
Revenue (Costs) between Users8.42Subject to section 8.43, a Reference Tariff
should, to the maximum extent that istechnically and
commercially reasonable, be designed so that a particular User's
shareof the portion of Total Revenue to be
recovered from sales of a Reference Service(which may be on
the basis of forecasts) is consistent with the principles described
insection 8.38.Prudent
Discounts8.43If:(a)the nature of the market in which a
User or Prospective User of a ReferenceService or some
other Service operates, or the price of alternative fuelsavailable to such a User or Prospective
User, is such that the Service, if pricedat the nearest
Reference Tariff (or, if the Service is not a Reference
Service,at the Equivalent Tariff) would not be used
by that User or Prospective User;and(b)a Reference Tariff (or Equivalent
Tariff) calculated without regard torevenues from
that User or Prospective User would be greater than theReference Tariff (or Equivalent Tariff) if
calculated having regard torevenues
received from that User or Prospective User on the basis that it
isserved at a price less than the Reference
Tariff (or Equivalent Tariff),then the
Relevant Regulator may, with effect from the commencement of an
AccessArrangement Period, permit some or all of
any discount given to, or to be given to,that User or
Prospective User (where the discount is the difference between
theReference Tariff (or the Equivalent Tariff)
and the Tariff actually paid or to be paid bythe User or
Prospective User) to be either:(c)recovered from other Users of the Reference
Service under section 8.42, in amanner that the
Relevant Regulator is satisfied is fair and reasonable; or62This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2(d)recovered from the Reference Service or some
other Service or Servicesunder section 8.38 in a manner that
the Relevant Regulator is satisfied is fairand
reasonable.Use of Incentive Mechanisms8.44The Reference
Tariff Policy should, wherever the Relevant Regulator
considersappropriate, contain a mechanism that
permits the Service Provider to retain all, or ashare of, any returns to the Service
Provider from the sale of a Reference Serviceduring an Access
Arrangement Period that exceeds the level of returns expected at
thebeginning of the Access Arrangement Period
(anIncentive Mechanism),
particularlywhere the additional returns are
attributable (at least in part) to the efforts of theService Provider. Such additional returns
may result, amongst other things, fromlower Non
Capital Costs or greater sales of Services than forecast.8.45An Incentive
Mechanism may include (but is not limited to) the following:(a)specifying the Reference Tariff that
will apply during each year of the AccessArrangement
Period based on forecasts of all relevant variables (and
whichmay assume that the Service Provider can
achieve defined efficiency gains)regardless of
the realised values for those variables;(b)specifying a target for revenue from the
sale of all Services provided bymeans of the
Covered Pipeline, and specifying that a certain proportion of
anyrevenue received in excess of that target
shall be retained by the ServiceProvider and
that the remainder must be used to reduce the Tariffs for
allServices provided by means of the Covered
Pipeline (or to provide a rebate toUsers of the
Covered Pipeline); and(c)a rebate
mechanism for Rebatable Services pursuant to section 8.40
thatprovides for less than a full rebate of
revenues from the Rebatable Services tothe Users of the
Reference Service.8.46An Incentive
Mechanism should be designed with a view to achieving the
followingobjectives:(a)to
provide the Service Provider with an incentive to increase the
volume ofsales of all Services, but to avoid
providing an artificial incentive to favourthe sale of one
Service over another;(b)to provide the
Service Provider with an incentive to minimise the overallcosts attributable to providing those
Services, consistent with the safe andreliable
provision of such Services;(c)to
provide the Service Provider with an incentive to develop new
Services inresponse to the needs of the market for
Services;(d)to provide the Service Provider with
an incentive to undertake only prudentNew Facilities
Investment and to incur only prudent Non Capital Costs, andfor
this incentive to be taken into account when determining the
prudence ofNew Facilities Investment and Non Capital
Costs for the purposes of sections8.16 and 8.37;
and(e)to ensure that Users and Prospective
Users gain from increased efficiency,innovation and
volume of sales (but not necessarily in the AccessArrangement Period during which such
increased efficiency, innovation orvolume of sales
occur).[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200263
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsCertain
Reference Tariff Principles Not Subject to Periodic Review8.47The Reference
Tariff Policy may provide that certain principles are fixed for
aspecified period and not subject to change
when a Service Provider submits reviews toan Access
Arrangement without the agreement of the Service Provider. A
FixedPrinciple is an element of the Reference
Tariff Policy that can not be changed withoutthe agreement of
the Service Provider (Fixed Principle). The period
during which theFixed Principle may not be changed is the
Fixed Period (Fixed Period).8.48A Fixed
Principle may include any Structural Element, but in assessing
whether anyStructural Element may be a Fixed Principle
regard must be had to the interests of theService Provider
and the interests of Users and Prospective Users. A Market
VariableElement can not be a Fixed Principle. The
Fixed Period may be for all or part of theduration of an
Access Arrangement, but in determining a Fixed Period regard must
behad to the interests of the Service Provider
and the interests of Users and ProspectiveUsers.Assessment of Compliance with Section
88.49Subject to the
requirement for public consultation, the Relevant Regulator
maydetermine its own policies for assessing
whether a Reference Tariff meets therequirements of
this section 8. For example, the Relevant Regulator may:(a)draw an inference that an appropriate
Incentive Mechanism will result in:(i)New
Facilities Investment that meets the requirements ofsection 8.16(a) and 8.16(b)(i);
and/or(ii)that Non Capital
Costs meet the requirements of section 8.37;(b)draw
an inference that an appropriate policy by the Service Provider
inrelation to New Facilities Investment and/or
Non Capital Costs will, ifadhered to, result in:(i)New Facilities Investment that meets
the requirements of section8.16;
and/or(ii)Non Capital
Costs that meet the requirements of section 8.37;(c)assess whether New Facilities
Investment in relation to a number of NewFacilities (for
example, an investment program) considered together meet therequirements of section 8.16, and then use
this to draw an inference as towhether the New
Facilities Investment when considered in relation to eachindividual New Facility meets the
requirements of section 8.16.9—CODE
CHANGE9.1This Code may be amended by agreement
between the Relevant Ministers of theScheme
Participants in accordance with the Gas Pipelines Access Law if,
not earlierthan eight weeks prior to the agreement, the
NGPAC has provided a report to allRelevant
Ministers of the Scheme Participants in accordance with section 9.2
which:(a)makes a recommendation in relation to
an amendment to the Code;(b)sets out reasons
for that recommendation; and(c)sets
out a summary of the views of any member of the NGPAC who does
notagree with the recommendation.64This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 29.2A
report by the NGPAC for the purposes of section 9.1(a) must state
whether theNGPAC considers the amendment it recommends
to be significant or not significant.If the amendment
is considered to be significant, the report must confirm that
therecommendation is made following a public
consultation process under which theNGPAC
has:(a)prepared an information memorandum
setting out the amendment beingconsidered and a
statement of why such amendment may be desirable;(b)published a notice in a national daily
newspaper which at least:(i)stated that the
NGPAC was considering recommending anamendment to the
Code;(ii)stated how
copies of the information memorandum could beobtained;
and(iii)requested
submissions by a specified date, being a date not less than21
days after the date of the notice; and(c)considered any submissions received within
the time period specified in thenotice.9.3In accordance with the Gas Pipelines
Access Law, the Relevant Ministers of theScheme
Participants must ensure that:(a)a
copy of each agreement amending the Code is published in the
SouthAustralian Government Gazette; and(b)a notice of the making of each such
agreement is published in a newspapercirculating
generally in Australia.9.4In accordance
with the Gas Pipelines Access Law an amendment to the Code
haseffect on and from the day on which a copy
of the agreement for the amendment ispublished in the
South Australian Government Gazette or, if the agreement
providesthe amendment is to come into effect on a
later day, on that later day.10—INTERPRETATIONHow this Code
applies to Multiple Service Providers10.1—(a)This section
10.1 applies if there is more than one Service Provider inconnection with a Covered Pipeline,
including if:(i)the Covered Pipeline is owned or
operated by two or more persons asa joint venture
or partnership; or(ii)the Covered
Pipeline is owned and operated by different persons; or(iii)a Covered
Pipeline is legally owned by a person or persons on trustfor
others.In such a case each Service Provider in
connection with the Covered Pipelineis referred to
in this section 10.1 as a "Participant".[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200265
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems(b)If
this Code requires or permits something to be done by the Service
Provider,that thing may be done by one of the
Participants on behalf of all theParticipants.
So, for example, a proposed Access Arrangement may besubmitted under section 2.2 by one
Participant on behalf of all Participants.(c)If a
provision of this Code refers to the Service Provider bearing any
costs,the provision applies as if the provision
referred to any of the Participantsbearing any
costs.(d)If a provision of this Code, other
than section 4, refers to the Service Providerdoing something,
the provision applies as if the provision referred to one ormore
of the Participants doing the thing on behalf of all the
Participants.10.2Where:(a)there is more than one Service
Provider in connection with a CoveredPipeline;(b)one is the owner and another is the
operator; and(c)responsibility for complying with the
obligations imposed by this Code on theService Provider
is allocated among them by their Access Arrangements ortheir Access Arrangement,each
Service Provider is responsible for complying with the obligations
allocated to it.How this Code applies to successor Service
Providers10.3If a person
becomes a Service Provider in relation to a Covered Pipeline (for
example,if the person purchases a Covered
Pipeline):(a)the Covered Pipeline shall remain a
Covered Pipeline;(b)any Access Arrangement approved
pursuant to the Code shall continue toapply to the
Covered Pipeline concerned despite the change in ServiceProvider and shall bind the person in the
same way it bound other ServiceProviders
immediately before the person became a Service Provider withrespect to the Covered Pipeline concerned;
and(c)any arbitration decision made pursuant
to the Code shall continue to apply tothe Covered
Pipeline concerned despite the change in Service Provider
andshall bind the person in the same way it
bound other Service Providersimmediately
before the person became a Service Provider with respect to
theCovered Pipeline concerned.Overviews10.4The
introduction to this Code and the overview in italics at the
beginning of eachsection of this Code do not form part of
this Code.10.5In interpreting
a provision of this Code consideration should be given to
theintroduction to this Code and the overview
in italics at the beginning of the relevantsection of this
Code:(a)to confirm that the meaning of the
provision is the ordinary meaningconveyed by the
text of the provision; or(b)to determine the
meaning of the provision when:(i)the
provision is ambiguous or obscure; or66This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2(ii)the
ordinary meaning conveyed by the text of the provision leads to
aresult that is manifestly absurd or
unreasonable.Notices10.6Where this Code requires or contemplates the
giving or making of any notice,application,
submission, opinion, consent, approval, agreement, reason,
explanation,report or other communication it must be
given or made in writing.Regulatory and Conduct
Provisions10.7For the purposes
of the Gas Pipelines Access Law:(a)The
following sections shall be Regulatory Provisions:•2.2 and 2.28 (Service Provider must
submit a proposed AccessArrangement or proposed revisions to
the Access Arrangement,together with Access Arrangement
Information);•2.4 (Relevant Regulator may require
more than one AccessArrangement);•2.9
and 2.30 (Relevant Regulator may require changes to AccessArrangement Information);•4.1(a), (b), (c), (d), (e), (h) and
(i) and 4.2 (basic ring fencingobligations
other than in relation to confidential information);•4.3 (additional ring fencing
obligations);•4.12 (establishing compliance
procedures);•4.13 (report to the Relevant
Regulator);•4.14 (reporting own
non-compliance);•5.1 and 5.2 (establishing information
package);•5.3 (provide information
package);•5.4 to 5.6 (inclusive) (response to
access request);•5.8 (information to be provided to the
market about unutilisedcontract capacity);•5.9 (public register of
capacity);(b)the following sections shall be
Conduct Provisions:•3.15 (enforcement of queuing
policy);•4.1(f) and (g) (basic ring fencing
obligations in relation toconfidential information);•5.7 (keeping additional information
confidential);•6.16, 6.24(a) and 6.26 (requiring
compliance with outcome ofarbitration);•7.1
(Associate contracts).[15.9.2006] This version is not
published under theLegislation Revision and Publication Act
200267
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsDefinitions10.8The
following definitions apply unless the context otherwise
requires:Access Arrangementmeans an
arrangement for access to a Covered Pipeline that hasbeen
approved by the Relevant Regulator.Access
Arrangement Informationmeans information provided by a
Service Providerto the Relevant Regulator pursuant to
section 2.2, 2.3, 2.9, 2.28 or 2.30.Access
Arrangement Periodmeans the period from when an Access
Arrangement orrevisions to an Access Arrangement take
effect (by virtue of a decision pursuant tosection 2) until
the next Revisions Commencement Date.Additional
Staffmeans servants, consultants, independent
consultants and agents of aService Provider
who are not Marketing Staff and who the Regulator regards asindirectly involved in the sale or
advertising of Services.Additional Revenue Policyhas
the meaning given in section 3.28(d).Anticipated
Incremental Revenuemeans the present value (calculated at the
Rate ofReturn) of the reasonably anticipated future
revenue from the sale of Services at thePrevailing
Tariffs which would not have been generated without the
IncrementalCapacity, minus the present value
(calculated at the Rate of Return) of the bestreasonable
forecast of the increase in Non Capital Costs directly attributable
to thesale of those Services.Arbitratorhas the meaning
given the Gas Pipelines Access Law.Associatehas
the meaning given in the Gas Pipelines Access Law.Associate Contractmeans;(a)a contract, arrangement or
understanding between the Service Provider and anAssociate in connection with the provision
of a Service; or(b)a contract, arrangement or
understanding between the Service Provider andany person in
connection with the provision of a Service which provides adirect or indirect benefit to an Associate
and which is not an arm's lengthtransaction.Bare
Transferhas the meaning given in section
3.10.Capacitymeans the
measure of the potential of a Covered Pipeline as currentlyconfigured to deliver a particular Service
between a Receipt Point and a DeliveryPoint at a point
in time.Capacity Management Policyhas
the meaning given in section 3.7.Capital
Basehas the meaning given in section 8.4.Capital Contributionhas the meaning
given in section 8.23.Charge, for a Service,
means the amount that is payable by a User to the ServiceProvider for that Service.Codemeans this
National Third Party Access Code for Natural Gas Pipeline
Systemsas changed from time to time in accordance
with the Gas Pipelines Access Law.Code
Registrarhas the meaning given in the Gas Pipelines
Access Law.68This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2Confidential
Informationmeans information that is by its nature
confidential or isknown by the other party to be confidential
and includes:(a)any information relating to the
financial position of the party and in particularincludes information relating to the assets
or liabilities of the party and anyother matter
that affects or may affect the financial position or reputation
ofthe party;(b)information relating to the internal
management and structure of the party orthe personnel,
policies and strategies of the party;(c)information of the party to which the other
party has access, other thaninformation
referred to in paragraphs (a) and (b), that has any actual
orpotential commercial value to the first
party or to the person or corporationwhich supplied
that information; and(d)any information
in the party's possession relating to the other party's clients
orsuppliers and like information.Contracted Capacitymeans that part
of the Capacity which has been reserved by aUser or Users
pursuant to a contract entered into with the Service
Provider.Contract Carriageis a system of
managing third party access whereby:(a)the
Service Provider normally manages its ability to provide
Servicesprimarily by requiring Users to use no more
than the quantity of Servicespecified in a
contract;(b)Users normally are required to enter
into a contract that specifies a quantity ofService;(c)charges for use of a Service normally
are based at least in part upon thequantity of
Service specified in a contract; and(d)a
User normally has the right to trade its right to obtain a Service
to anotherUser.Core
Provisionsmeans sections 2.24, 3.1 to 3.4 (inclusive),
3.28, 3.33, 3.34, 4.1 to 4.4(inclusive),
6.15, 6.18, 8.1 and 9.1 to 9.4 (inclusive) and this definition of
CoreProvisions.Coverage/Coveredmeans, in
relation to a Pipeline or part of a Pipeline, that thatPipeline or part of a Pipeline is subject to
the provisions of this Code pursuant tosections 1.1,
1.13, 1.20 or 1.21.Covered Pipelinemeans, subject
to sections 2.3 and 2.4, the whole or a particular partof a
Pipeline which is Covered and any extension to, or expansion of the
Capacity of,that Covered Pipeline which is to be treated
as part of the Covered Pipeline inaccordance with
the Extensions/Expansions Policy contained in the AccessArrangement for that Covered Pipeline and
any expansion of that Covered Pipelinerequired to be
installed under section 6.22.Delivery
Pointmeans the point or points within the Covered
Pipeline at which thecustody of Natural Gas is transferred
from a Service Provider to a User.Depreciationmeans, in any
year and on any asset or group of assets, the amountcalculated according to the Depreciation
Schedule for that year and for that asset orgroup of
assets.[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
200269
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsDepreciation
Schedulehas the meaning given in section
8.32.Developable Capacitymeans the
difference between the Capacity and the Capacitywhich would be available if additions of
plant and/or pipeline were made, but does notinclude any
extension of the geographic range of a Covered Pipeline.Equivalent Tariffmeans, in
relation to a Service that is not a Reference Service, theTariff that it is reasonably likely would
have been set as the Reference Tariff had theService been a
Reference Service.Exclusivity Rightmeans a
contractual right that by its terms either:(a)expressly prevents a Service Provider
supplying Services to persons who arenot parties to
the contract; or(b)expressly places a limitation on the
Service Provider's ability to supplyServices to
persons who are not parties to the contract,but does not
include a User's contractual right to obtain a certain volume of
Services.Final Approval Requesthas the meaning
given in section 3.29.Fixed Periodhas the meaning
given in section 8.47.Fixed Principlehas the meaning
given in section 8.47.Gas Pipelines Access Law, in
relation to a Scheme Participant, means:(a)in
the case of South Australia:(i)the
provisions referred to in paragraph (a) of the definition of
GasPipelines Access Law in section 3(1) of the
Gas Pipelines Access(South Australia) Act 1997 of South
Australia, as applying as a lawof South
Australia; and(ii)Regulations in
force under Part 3 of that Act; and(b)in
the case of Western Australia:(i)the
provisions of an Act of Western Australia corresponding to
theprovisions of the South Australian Act that
are referred to inparagraph (a)(i); and(ii)Regulations in force under the Western
Australian Act that makeprovisions corresponding to the
provisions of Regulation under Part3 of the South
Australian Act; and(c)in the case of any other Scheme
Participant:(i)the provisions referred to in
paragraph (a) of the definition of GasPipelines Access
Law in section 3(1) of the South Australian Act, asapplying as a law of that Scheme
Participant; and(ii)Regulations in
force under Part 3 of the South Australian Act, asapplying as a law of that Scheme
Participant.Incentive Mechanismhas the meaning
given in section 8.44.Incremental Capacitymeans the increase in Capacity attributable
to a New Facility.Incremental Revenuemeans revenue
generated by sales of Incremental Capacity.70This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2Incremental
Useris a User that could not have been serviced
without the addition ofthe Incremental Capacity.Information Packagemeans the
Information Package described in section 5.1.Jurisdictional
Areahas the meaning given in the Gas Pipelines
Access Law.Market Carriageis a system of
managing third party access whereby:(a)the
Service Provider does not normally manage its ability to provide
Servicesprimarily by requiring Users to use no more
than the quantity of Servicespecified in a
contract;(b)Users are normally not required to
enter a contract that specifies a quantity ofService;(c)charges for use of Services are
normally based on actual usage of Services;and(d)a User normally does not have a right
to trade its right to obtain a Service toanother
User.Market Variable Elementmeans a factor
that has a value assumed in the calculationof a Reference
Tariff, where the value of that factor will vary with changing
marketconditions during the Access Arrangement
Period or in future Access ArrangementPeriods, and
includes the sales or forecast sales of Services, any index used to
estimatethe general price level, real interest
rates, Non Capital Cost and any costs in the natureof
capital costs.Marketable Parcelmeans all or
part of a User's Contracted Capacity which the Userreasonably expects:(a)that
the User will not utilise and does not require for technical or
safetyreasons;(b)to
be of a size and type capable of being sold to another User or to
aProspective User; and(c)to
be able to sell without incurring transaction costs which exceed
the pricewhich that User would receive from another
User or Prospective User.Marketing Staffmeans servants,
consultants, independent contractors or agentsdirectly
involved in sales, sale provision or advertising (whether or not
they are alsoinvolved in other functions) but does not
include servants, consultants, independentcontractors or
agents involved only in:(a)strategic
decision making, including the executive officer or officers to
whomMarketing Staff report either directly or
indirectly;(b)technical, administrative, accounting
or service functions.Natural Gashas the meaning
given in the Gas Pipelines Access Law.NCCmeans the National Competition Council
established by section 29A of theTrade Practices
Act, 1974 (Commonwealth).New Facilities Investmenthas
the meaning given in section 8.16.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200271
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsNew
Facilitymeans:(a)any
extension to, or expansion of the Capacity of, a Covered Pipeline
whichis to be treated as part of the Covered
Pipeline in accordance with theExtensions/Expansions Policy contained in
the Access Arrangement for thatCovered
Pipeline; and(b)any expansion of the Capacity of a
Covered Pipeline required to be installedunder
6.22.NGPACmeans the
National Gas Pipelines Advisory Committee to be establishedunder the National Gas Agreement (which term
has the meaning given in the GasPipelines Access
Law).Non Capital Costshas the meaning
given in section 8.4.Pipelinehas the meaning
given in the Gas Pipelines Access Law.Prevailing
Tarifffor a Reference Service means the applicable
Reference Tariff, andfor any other Service, means the
Equivalent Tariff.Prospective Incremental Usermeans a person which may become an
IncrementalUser.Prospective
Service Providermeans a person who seeks or may seek to
become aService Provider.Prospective
Usermeans a person who seeks or who is
reasonably likely to seek toenter into a
contract for a Service and includes a User who seeks or may seek to
enterinto a contract for an additional
Service.Public Registermeans the public
register to be kept by the Code Registrar pursuant tosection 7.10.Queuing
Policyhas the meaning given in section
3.12.Rate of Returnhas the meaning
given in section 8.4.Rebatable Serviceis a Service
where:(a)there is substantial uncertainty
regarding expected future revenue from salesof that Service
due to the nature of the Service and/or the market for thatService; and(b)the
nature of the Service and the market for that Service is
substantiallydifferent to any Reference Service and the
market for that Reference Service.Receipt
Pointmeans the point or points within the Covered
Pipeline at which thecustody of Natural Gas is transferred
from a User to a Service Provider.Recoverable
Portionhas the meaning given in section
8.18.Redundant Capitalhas the meaning
given in section 8.27.Reference Servicemeans a Service
which is specified in an Access Arrangement andin respect of
which a Reference Tariff has been specified in that Access
Arrangement.Reference Tariffmeans a Tariff
specified in an Access Arrangement as correspondingto a
Reference Service and which has the operation that is described in
sections 6.13and 6.18.Reference Tariff
Policyhas the meaning given in section 3.5.72This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2Related
Businessmeans the business of producing, purchasing
or selling Natural Gas,but does not include purchasing or
selling of Natural Gas to the extent necessary:(a)for
the safe and reliable operation of a Covered Pipeline; or(b)to enable a Service Provider to
provide balancing services in connection witha Covered
Pipeline.Relevant Appeals Bodyhas the meaning
given in the Gas Pipelines Access Law.Relevant
Ministerhas the meaning given in the Gas Pipelines
Access Law.Relevant Regulatorhas the meaning
given in the Gas Pipelines Access Law.Residual
Valuehas the meaning given in section 8.4.Revisions Commencement Datehas
the meaning given in section 3.17.Revisions
Submission Datehas the meaning given in section
3.17.Scheme Participanthas the meaning
given in the Gas Pipelines Access Law.Servicemeans a service provided by means of a
Covered Pipeline (or when used insection 1 a
service provided by means of a Pipeline) including (without
limitation):(a)haulage services (such as firm
haulage, interruptible haulage, spot haulageand
backhaul);(b)the right to interconnect with the
Covered Pipeline; and(c)services
ancillary to the provisions of such services,but does not
include the production, sale or purchasing of Natural Gas.Services Policyhas the meaning
given in section 3.1.Service Providerhas the meaning
given in the Gas Pipelines Access Law.Spare
Capacitymeans:(a)in
relation to a Covered Pipeline described in the Access Arrangement
as aContract Carriage Pipeline:(i)the difference between the Capacity
and the Contracted Capacity;plus(ii)the difference
between the Contracted Capacity and the ContractedCapacity which is being used; and(b)in relation to a Covered Pipeline
described in the Access Arrangement as aMarket Carriage
Pipeline, the capacity to provide a Service without impedingthe
provision of the Service to any other User.Speculative
Investmenthas the meaning given in section
8.19.Speculative Investment Fundhas
the meaning given in section 8.19.[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200273
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsStructural
Elementmeans any principle or methodology that is
used in the calculationof a Reference Tariff where that
principle or methodology is not a Market VariableElement and has been structured for
Reference Tariff making purposes over a longerperiod than a
single Access Arrangement Period, and includes the
DepreciationSchedule, the financing structure that is
assumed for the purposes of section 8.30, andthat part of the
Rate of Return (calculated pursuant to section 8.30) that exceeds
thereturn that could be earned on an asset that
does not bear any market risk.Surchargehas
the meaning given in sections 8.25 and which has the effect defined
insection 6.19.Tariff,
for a Service, means the criteria that, when applied to a User's
characteristicsand requirements, determine the Charge that
is payable by that User to the ServiceProvider (this
shall not provide any limitation on the Tariff that may apply to
aService).Tender Approval
Requesthas the meaning given in section
3.21.Total Revenuehas the meaning
given in section 8.2.Trading Policyhas the meaning
given in section 3.9.Usermeans a person
who has a current contract for a Service or an entitlement to
aService as a result of an
arbitration.10.9Schedule 1 to
the Gas Pipelines Access Law contains miscellaneous provisions
whichrelate to the interpretation of the Gas
Pipelines Access Law and this Code.ATTACHMENT
A—INFORMATION DISCLOSURE BY ASERVICE PROVIDER
TO INTERESTED PARTIESPursuant to Section 2.7 the following
categories of information must be included inthe Access
Arrangement Information.The specific items of information
listed under each category are examples of theminimum
disclosure requirements applicable to that category but, pursuant
to Sections2.8 and 2.9, the Relevant Regulator
may:•allow some of the information
disclosed to be categorised or aggregated; and•not
require some of the specific items of information to be
disclosed,if in the Relevant Regulator's opinion it is
necessary in order to ensure the disclosureof the
information is not unduly harmful to the legitimate business
interests of theService Provider or a User or Prospective
User.Category 1:Information
Regarding Access & Pricing PrinciplesTariff
determination methodologyCost allocation approachIncentive structuresCategory
2:Information Regarding Capital CostsAsset values for each pricing zone, service
or category of assetInformation as to asset valuation
methodologies - historical cost or assetvaluationAssumptions on economic life of asset for
depreciationDepreciation74This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2Accumulated
depreciationCommitted capital works and capital
investmentDescription of nature and justification for
planned capital investmentRates of return - on equity and on
debtCapital structure - debt/equity split
assumedEquity returns assumed - variables used in
derivationDebt costs assumed - variables used in
derivationCategory 3:Information
Regarding Operations & MaintenanceFixed versus
variable costsCost allocation between zones, services or
categories of asset & betweenregulated/unregulatedWages &
Salaries - by pricing zone, service or category of assetCost
of services by others including rental equipmentGas
used in operations - unaccounted for gas to be separated from
compressorfuelMaterials &
supplyProperty taxesCategory
4:Information Regarding Overheads &
Marketing CostsTotal service provider costs at corporate
levelAllocation of costs between
regulated/unregulated segmentsAllocation of
costs between particular zones, services or categories of
assetCategory 5:Information
Regarding System Capacity & Volume AssumptionsDescription of system capabilitiesMap
of piping system - pipe sizes, distances and maximum
deliverycapabilityAverage daily
and peak demand at "city gates" defined by volume andpressureTotal annual
volume delivered - existing term and expected future volumesAnnual volume across each pricing zone,
service or category of assetSystem load
profile by month in each pricing zone, service or category
ofassetTotal number of
customers in each pricing zone, service or category of assetCategory 6:Information
Regarding Key Performance IndicatorsIndustry KPIs
used by the Service Provider to justify "reasonably
incurred"costsService
provider's KPIs for each pricing zone, service or category of
assetSCHEDULE A—PIPELINES TO BE COVERED
FROMCOMMENCEMENT OF THE CODEThis Schedule
includes a complete list of Gas Transmission and Distribution
Systemsthat are agreed jointly by governments as
passing the coverage tests and are to becovered at the
commencement of the Code.The assets described within each box
shown in this Schedule constitute a CoveredPipeline for the
purposes of section 1.1.[15.9.2006] This version is not
published under theLegislation Revision and Publication Act
200275
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline SystemsINDEXGENERAL MAP(Identifies
existing natural gas transmission pipelines and major
centresof distribution.)Queensland -
Natural Gas Transmission PipelinesQueensland -
Natural Gas Distribution SystemsNew South Wales
& Australian Capital Territory - Natural Gas Transmission
PipelinesNew South Wales & Australian Capital
Territory - Natural Gas Distribution SystemsVictoria -
Natural Gas Transmission PipelinesVictoria -
Natural Gas Distribution SystemsSouth Australia
- Natural Gas Transmission PipelinesSouth Australia
- Natural Gas Distribution SystemsWestern
Australia - Natural Gas Transmission PipelinesWestern
Australia - Natural Gas Distribution SystemsNorthern
Territory - Natural Gas Transmission PipelinesNorthern
Territory - Natural Gas Distribution SystemsPage No.12345678910111276This version is not published under
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Gas Pipeline Systems—Schedule 2[15.9.2006] This
version is not published under theLegislation
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for Natural Gas Pipeline Systems78This
version is not published under theLegislation
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Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2[15.9.2006] This
version is not published under theLegislation
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for Natural Gas Pipeline Systems80This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
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Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200281
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Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems82This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
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Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2[15.9.2006] This
version is not published under theLegislation
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Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems84This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200285
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems86This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200287
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems88This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200289
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems90This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200291
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems92This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200293
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems94This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200295
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems96This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
6.2.2003—Gas Pipelines Access (South
Australia) Act 1997National Third Party Access Code for Natural
Gas Pipeline Systems—Schedule 2[15.9.2006] This
version is not published under theLegislation
Revision and Publication Act 200297
Gas
Pipelines Access (South Australia) Act 1997—6.2.2003Schedule 2—National Third Party Access Code
for Natural Gas Pipeline Systems98This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Legislative historyLegislative
historyNotes•This
version is comprised of the following:Part 16.2.2003 (Reprint No 3)Part 21.7.2003 (Reprint No 4)Part 314.9.2006Part 41.7.2003 (Reprint No 4)Part 56.2.2003 (Reprint No 3)Part 61.7.2003 (Reprint No 4)Part 76.2.2003 (Reprint No 3)Schedule
114.9.2006Schedule
26.2.2003 (Reprint No 3)•Please note—References in the legislation to
other legislation or instruments or totitles of bodies
or offices are not automatically updated as part of the program for
therevision and publication of legislation and
therefore may be obsolete.•Earlier versions
of this Act (historical versions) are listed at the end of the
legislativehistory.•For
further information relating to the Act and subordinate legislation
made under theAct see the Index of South Australian
Statutes.Legislation amended by principal ActTheGas Pipelines Access (South Australia)
Act 1997amended the following:Gas Act
1997Petroleum Act 1940Principal Act
and amendmentsNew entries appear in bold.YearNoTitle199774Gas Pipelines Access (SouthAustralia) Act 1997Assent18.12.1997200074200123Statutes Amendment (Federal14.12.2000Courts—State
Jurisdiction) Act 2000Statutes Amendment
(Corporations)14.6.2001Act 2001Commencement30.7.1998 being
the day on which theGas Pipelines Access
(Commonwealth)Act 1998received the
Royal Assent:Commonwealth of Australia GazetteNo.GN 34, 26.8.1998 (Gazette
2.4.1998p1606) and s 2Pt 5
(ss 31—34)—28.1.2001 (Gazette25.1.2001
p301)Pt 16 (s 76)—15.7.2001 being the
dayon which theCorporations Act
2001ofthe Commonwealth came into
operation:Commonwealth of Australia GazetteNo.S 285, 13.7.2001 (Gazette
21.6.2001p2270)[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
20021
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Legislative history2002222003920064Gas
Pipelines Access (SouthAustralia) (Reviews) AmendmentAct
2002Statutes Amendment (Gas andElectricity) Act 2003Gas Pipelines
Access (SouthAustralia) (Greenfields PipelineIncentives) Amendment Act 200631.10.20026.2.2003
(Gazette 6.2.2003 p490)12.6.200322.6.2006Pt 3
(ss 65—73)—1.7.2003 (Gazette26.6.2003
p2812)14.9.2006 (Gazette 7.9.2006
p3165)Provisions amendedNew entries
appear in bold.Entries that relate to provisions that have
been deleted appear in italics.ProvisionHow
variedLong titleamended
underLegislation Revision andPublication Act
2002Pt 2s9the
Courtamended by 74/2000 s 31District
Courtinserted by 9/2003 s 65(1)Essential Servicesinserted by
9/2003 s 65(1)Commissionlocal appeals
bodysubstituted by 9/2003 s 65(2)local Regulatorsubstituted by
9/2003 s 65(3)Pt 3s 10s
10(1)substituted by 4/2006 s 4Pt
4Pt 4 Div 1s 17amended by 9/2003 s 66Pt 4 Div
2deleted by 74/2000 s 32Pt 4 Div
3deleted by 74/2000 s 32Pt 5s
23s 23(1)amended by
74/2000 s 33(a), (b)s 23(1a)inserted by
74/2000 s 33(c)Pt 6s 29deleted by 9/2003 s 67s 30s
30(1)amended by 9/2003 s 68(1)s
30(2)amended by 9/2003 s 68(2)s
31amended by 9/2003 s 69s 32substituted by 9/2003 s 70ss
33—39deleted by 9/2003 s 70s 40Commencement6.2.200328.1.20011.7.20031.7.20031.7.20031.7.200314.9.20061.7.200328.1.200128.1.200128.1.200128.1.20011.7.20031.7.20031.7.20031.7.20031.7.20031.7.20032This
version is not published under theLegislation
Revision and Publication Act 2002[15.9.2006]
14.9.2006—Gas Pipelines Access (South
Australia) Act 1997Legislative historys 40(1)s
40(1a)s 41s 41(1)ss
42 and 43ss 44—46Pt 7Pt 7
Div 2Pt 7 Div 2 Subdivs 3and 4Sch
1Pt 1s2civil penaltyprovisionFederal CourtPt 3s
11s 11(2)s 11(4)s
13s 13(7)associatePt
3APt 4s 16s
16(2)Pt 5s 32s
32(4)Pt 6s 38s
38(1)s 38(2)s 38(6)s
38(13)s 39s 39(1)s
39(1a)s 39(2)s 39(3)s
39(5)s 39(7)amended by
9/2003 s 71(1)inserted by 9/2003 s 71(2)amended by 9/2003 s 72substituted by
9/2003 s 73deleted by 9/2003 s 73omitted under
Legislation Revision andPublication Act 2002substituted by 4/2006 s 5(1)deleted by 74/2000 s 34(a)amended by 22/2002 s 3(a)inserted by 22/2002 s 3(b)substituted by 23/2001 s 76(a)inserted by 4/2006 s 5(2)amended by 23/2001 s 76(b)amended by 74/2000 s 34(b), (c)amended by 22/2002 s 4(a)substituted by 22/2002 s 4(b)amended by 22/2002 s 4(c)amended by 4/2006 s 5(3)substituted by
22/2002 s 5(a)inserted by 22/2002 s 5(a)amended by 22/2002 s 5(b), (c)amended by 22/2002 s 5(d)amended by 22/2002 s 5(e)inserted by 22/2002 s 5(f)1.7.20031.7.20031.7.20031.7.20031.7.20036.2.200314.9.200628.1.20016.2.20036.2.200315.7.200114.9.200615.7.200128.1.20016.2.20036.2.20036.2.200314.9.20066.2.20036.2.20036.2.20036.2.20036.2.20036.2.2003[15.9.2006] This version is not published
under theLegislation Revision and Publication Act
20023
Gas
Pipelines Access (South Australia) Act 1997—14.9.2006Legislative historyPt 7s
41s 41(9)prescribed
dutyamended by 22/2002 s 6Appcl
2substituted by 4/2006 s 5(4)6.2.200314.9.2006Transitional etc provisions associated with
Act or amendmentsStatutes Amendment (Gas and Electricity) Act
200377—Provisions relating to SAIPAR and ESC
under Gas Pipelines Access(South Australia) Act(1)The Essential Services Commission may
continue and complete any processcommenced by the
South Australian Independent Pricing and Access Regulator
undertheGas Pipelines Access (South Australia)
Act 1997but not completed before thecommencement of this section.(2)A reference to the South Australian
Independent Pricing and Access Regulator in aninstrument or
document that has been made or issued under, or relates to,
theGasPipelines Access (South Australia) Act
1997is (where the context permits) to be
readas a reference to the Essential Services
Commission.78—Acts Interpretation ActTheActs Interpretation Act 1915applies, except to the extent of any
inconsistencywith the provisions of this Part, to the
amendments effected by this Act.Historical
versionsReprint No 1—28.1.2001Reprint No
2—15.7.2001Reprint No 3—6.2.2003Reprint No
4—1.7.20034This version is not published under
theLegislation Revision and Publication Act
2002[15.9.2006]
219Gas Pipelines Access (Queensland) Act
1998Endnotes1Index to endnotesPage2Date to which amendments incorporated
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.2193Key . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . .2194Table of reprints
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .2205List
of legislation . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . .2206List of annotations . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . .2212Date to which amendments
incorporatedThis is the reprint date mentioned in the
Reprints Act 1992, section 5(c). Accordingly, thisreprint includes all amendments that
commenced operation on or before 31 December2004.Future amendments of the Gas Pipelines
Access (Queensland) Act 1998 may bemade in accordance
with this reprint under the Reprints Act 1992, section 49.3KeyKey to
abbreviations in list of legislation and annotationsKeyAIAamdamdtchdefdivexpgazhdginslapnotfdo in comorigpparaprecpresprevExplanation=Acts
Interpretation Act 1954=amended=amendment=chapter=definition=division=expires/expired=gazette=heading=inserted=lapsed=notified=order
in council=omitted=original=page=paragraph=preceding=present=previousKey(prev)procprovptpubdR[X]RArelocrenumrep(retro)rvsschsdivSIASIRSLsubunnumExplanation=previously=proclamation=provision=part=published=Reprint No.[X]=Reprints Act 1992=relocated=renumbered=repealed=retrospectively=revised edition=section=schedule=subdivision=Statutory Instruments Act 1992=Statutory Instruments Regulation
2002=subordinate legislation=substituted=unnumbered
220Gas Pipelines Access (Queensland) Act
19984Table of reprintsReprints are
issued for both future and past effective dates.For
the most up-to-date tableof reprints, see the reprint with the
latest effective date.Ifareprintnumberincludesaletterofthealphabet,thereprintwasreleasedinunauthorised, electronic form only.ReprintNo.11A1BAmendments to1999 Act No.
822001 Act No. 272001 Act No.
71Effective19 May
200025 May 20011 March
2002Reprint date2 June
200029 May 20018 March
2002ReprintNo.1C1D1E2Amendments included2002
Act No. 342003 Act No. 292004 Act No.
25—Effective16 August
20021 July 200331 December
200431 December 2004Notesspecial reprint11Reprints are not normally produced
unless there is a change to the Queensland Act,but this Act has
been reprinted due to the replacement of the Gas Pipelines
Access(South Australia) Act 1997 as at 14
September 2006, contained in the attachmentto the
Act.5List of legislationGas
Pipelines Access (Queensland) Act 1998 No. 28date of assent 18
May 1998ss 1–2 commenced on date of assentremaining provisions commenced 19 May 2000
(automatic commencement underAIA s 15DA(2))
(1999 No. 86 s 2)amending legislation—Electricity and
Gas Legislation Amendment Act 1999 No. 82 s 1, pt 3date
of assent 14 December 1999commenced on date of assentFirst
Home Owner Grant and Other Legislation Amendment Act 2001 No. 21 s
1 pt 3date of assent 17 May 2001s 1
commenced on 9 March 2001 (see s 2)remaining
provisions commenced on date of assentFederal Courts
(Consequential Amendments) Act 2001 No. 27 pts 1, 5date
of assent 25 May 2001commenced on date of
assent
221Gas Pipelines Access (Queensland) Act
1998Duties Act 2001 No. 71 ss 1–2(1), 551 sch
1date of assent 13 November 2001ss
1–2 commenced on date of assentremaining
provisions commenced 1 March 2002 (2002 SL No. 10)Justices and Other Legislation (Miscellaneous
Provisions) Act 2002 No. 34 s 1, pt 6date of assent 16
August 2002commenced on date of assentGas
Supply Act 2003 No. 29 ss 1–2, ch 8 pt 4date of assent 23
May 2003ss 1–2 commenced on date of assentremaining provisions commenced 1 July 2003
(2003 SL No. 121)Petroleum and Gas (Production and Safety) Act
2004 No. 25 ss 1, 2(2), ss 966–968(prev ss
906–908)date of assent 12 October 2004ss
1–2 commenced on date of assentremaining
provisions commenced 31 December 2004 (2004 SL No. 308)6List of annotationsInterpretation of some expressions in the Gas
Pipelines Access (Queensland) Lawand the Gas
Pipelines Access (Queensland) Regulationss 11amd
2001 No. 27 s 33def“local Minister”amd 2004 No. 25 s
967PART 3—NATIONAL ADMINISTRATION AND
ENFORCEMENTDivision 1—Conferral of function and
powersdiv hdgom 2001 No. 27 s
34Division 2—Federal Courtdiv 2 (ss
18–19)om 2001 No. 27 s 35Division
3—Administrative decisionsdiv 3 (ss 20–21)om 2001 No. 27 s
35Qualifications of tribunal memberss
25amd 2002 No. 34 s 20Vacation of
offices 28amd 2002 No. 34 s 21Exemption from taxess 54amd
2001 No. 71 s 551 sch 1Actions in relation to cross-boundary
pipeliness 55amd 2001 No. 27 s 36Definitions for pt 6s 56def“Queensland part of the PNG to
Queensland pipeline”amd2003No. 29 s
369def“pipeline licence”amd 2004 No. 25 s
968
