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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
National Gas (South Australia) (Pipelines
Access—Arbitration) Amendment Bill 2017
A BILL FOR
An Act to amend the
National
Gas (South Australia) Act 2008
.
Contents
Part 2—Amendment
of National Gas (South Australia) Act 2008
83ASpecial
information and transparency requirements relating to non-scheme
pipelines
5Substitution of heading to Chapter
6
Chapter 6—Access disputes—scheme
pipelines
Chapter 6A—Access
disputes—non-scheme pipelines
Part 1—Interpretation and
application
216BMeaning of prospective
user
216DApplication of
this Chapter to disputes arising under Rules
216EChapter does
not limit how disputes about access may be raised or dealt with
216GDuty to
negotiate in good faith
216HNotification of access
dispute
216IParties to an access
dispute
Part 3—Reference of
dispute to arbitration
216LDetermination
of access dispute
216MPrinciples to
be taken into account
216NRestrictions on
access determinations
216OArbitrator's
power to terminate arbitration
216PAccess seeker's
right to terminate arbitration
Part 4—Compliance with access
determinations
216QCompliance with
access determinations
Part 5—Variation of
access determinations
216RVariation of
access determinations
216TCorrection of
access determinations for clerical mistakes etc
216UReservation of
capacity during an access dispute
7Amendment of section 271—Enforcement of
access determinations
294FSouth
Australian Minister to make initial Rules relating to access to non-scheme
pipelines
9Amendment of Schedule 1—Subject matter
for the National Gas Rules
The Parliament of South Australia enacts as
follows:
This Act may be cited as the National Gas (South Australia) (Pipelines
Access—Arbitration) Amendment Act 2017.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision in
Part 2
amends the National Gas Law set out in the Schedule to the
National
Gas (South Australia) Act 2008
.
Part 2—Amendment
of National Gas (South Australia)
Act 2008
Before section 84 insert:
83A—Special information and transparency
requirements relating to non-scheme pipelines
(1) In this section—
non-scheme pipeline means—
(a) a transmission pipeline that is not a scheme pipeline; and
(b) a distribution pipeline that is not a scheme pipeline.
(2) Without limiting
any other provision, the Rules may provide for such things as—
(a) the collection,
disclosure, verification, management and publication of information in relation
to services that may be provided by a non-scheme pipeline; and
(b) without limiting
paragraph (a)
, requirements about the information that must be provided by service
providers in relation to access (or potential access) to services provided by
means of any non-scheme pipeline, including information about—
(i) the terms and conditions on which the service provider is prepared to
make a non-scheme pipeline available for use by others; and
(ii) the procedures that the service provider will apply in determining a
proposal for access to a non-scheme pipeline; and
(iii) relevant prices, costs and methodologies associated with gaining
access to (and using) a non-scheme pipeline and relevant or related services;
and
(iv) access contracts and arrangements used (or required to be used) by
the service provider; and
(c) without limiting
paragraphs (a)
and
(b)
, information to be provided by a service provider in response to a request
for access to services provided by means of a non-scheme pipeline; and
(d) requirements to ensure that information is accurate and complete;
and
(e) requirements that relate to any matter that is contemplated by
Chapter 4 Part 2 (as if a reference to a covered pipeline service
provider in that Part were a reference to a service provider in relation to a
non-scheme pipeline and subject to any modifications made by the Rules and
subject to such other necessary alterations and modifications so as to apply
those requirements in relation to non-scheme pipelines); and
(f) the imposition or recovery of costs associated with any matter
referred to in a preceding paragraph or otherwise associated with facilitating
access (or potential access) to services provided by means of a non-scheme
pipeline.
(3) Nothing in
subsection (2)
limits any power to grant an exemption from complying with a provision, or
part of a provision, of the Rules.
(4) A reference in
subsection (2)
with respect to gaining access (or potential access) to services provided
by means of a non-scheme pipeline includes a reference to services that will
require an extension to, or expansion of the capacity of, a non-scheme
pipeline.
5—Substitution
of heading to Chapter 6
Heading to Chapter 6—delete the heading and substitute:
Chapter 6—Access disputes—scheme
pipelines
After section 216 insert:
Chapter 6A—Access disputes—non-scheme
pipelines
Part 1—Interpretation and
application
216A—Definitions
In this Chapter—
access determination means a determination of an arbitrator
under
Part 3
and includes a variation under
Part 5
;
access dispute means a dispute between a user or prospective
user and a service provider about 1 or more aspects of access to a pipeline
service provided by means of a non-scheme pipeline (subject to the operation of
section 216C(2)
);
dispute hearing means a hearing conducted by an arbitrator
under this Chapter for the purpose of making an access determination;
distribution pipeline means a pipeline that is classified in
accordance with this Law or the Rules as a distribution pipeline and includes
any extension to, or expansion of the capacity of, such a pipeline that, by
operation of an access arrangement or access determination, is to be treated as
part of the pipeline;
non-scheme pipeline means a pipeline to which this Chapter
applies by operation of
section 216C
;
party, in relation to an access dispute, has the meaning
given by
section 216I
;
prospective user has the meaning given by
section 216B
;
scheme administrator means the AER;
transmission pipeline means a pipeline that is classified in
accordance with this Law or the Rules as a transmission pipeline and includes
any extension to, or expansion of the capacity of, such a pipeline that, by
operation of an access arrangement or access determination, is to be treated as
part of the pipeline;
user means a person who—
(a) is a party to a contract with a service provider under which the
service provider provides or intends to provide a pipeline service to that
person by means of a non-scheme pipeline; or
(b) has a right under an access determination to be provided with a
pipeline service by means of a non-scheme pipeline.
216B—Meaning of prospective
user
(1) For the purposes of this Chapter, a prospective user is a person who
seeks or wishes to be provided with a pipeline service by means of a non-scheme
pipeline.
(2) To avoid doubt, a
user is also a prospective user for the purposes of this Chapter if the user
seeks or wishes to be provided with a pipeline service by means of a non-scheme
pipeline other than a pipeline service already provided to them
under—
(a) a contract; or
does not limit the operation of
Part 5
.
216C—Application of Chapter
(1) Subject to
subsection (2)
, this Chapter applies to and in relation to—
(a) a transmission pipeline that is not a scheme pipeline; and
(b) a distribution pipeline that is not a scheme pipeline.
(2) This Chapter does
not apply to or in relation to—
(a) a pipeline, or part of a pipeline, excluded from the operation of this
Chapter by the Rules; or
(b) a pipeline within a class or group of pipelines excluded from the
operation of this Chapter by the Rules; or
(c) a pipeline service (including in relation to a specific pipeline, or
part of a specific pipeline) excluded from the operation of this Chapter by the
Rules.
216D—Application of this Chapter to disputes
arising under Rules
The provisions of this Chapter applicable to the determination of an access
dispute apply, subject to such modifications as may be prescribed by the Rules,
to the determination of any dispute arising under any provision of the Rules
specified in the Rules for the purposes of this section.
216E—Chapter does not limit how disputes about
access may be raised or dealt with
This Chapter is not to be taken to limit how a dispute about access to a
pipeline service may be raised or dealt with.
Part 2—Negotiation of access
216F—Access proposals
The Rules may contain provisions for or with respect to seeking access to a
pipeline service provided or to be provided by means of a non-scheme pipeline
(or by part of a non-scheme pipeline or by an extension to, or expansion of the
capacity of, a non-scheme pipeline).
216G—Duty to negotiate in good
faith
A prospective user or user seeking access to a pipeline service provided or
to be provided by means of a non-scheme pipeline (or by part of a non-scheme
pipeline or by an extension to, or expansion of the capacity of, a non-scheme
pipeline), and the service provider for the relevant non-scheme pipeline, must
negotiate in good faith with each other about whether access can be granted and,
if so, the terms and conditions for the provision of access to the prospective
user or user (as the case requires).
216H—Notification of access
dispute
(1) Subject to this
section, if a prospective user or user (as the case requires) and a service
provider cannot agree about 1 or more aspects of access to a pipeline
service after a request has been made in accordance with the Rules, the
prospective user or user, or the service provider, may notify the scheme
administrator, in writing, that an access dispute exists.
(2) A notification must include, in accordance with the Rules, information
about—
(a) the matters (if any) on which agreement has been reached;
and
(b) the matters that are in dispute; and
(c) any other matter specified by the Rules.
(3) A notification must be accompanied by the fee set by the Rules (if
any).
(4) A notification cannot be made under this section if the access dispute
relates to a matter excluded from arbitration under this Chapter by the
Rules.
216I—Parties to an access
dispute
The parties to an access dispute are—
(a) the parties to the negotiations that gave rise to the access dispute
under
section 216H(1)
; and
(b) if the scheme administrator is of the opinion that the resolution of
the access dispute may involve requiring another person to do something and that
it is appropriate that the person be joined as a party—that other
person.
Part 3—Reference of dispute to
arbitration
216J—Reference of dispute
(1) If the scheme administrator receives notification of an access dispute
under
Part 2
, the dispute must be referred to arbitration.
(2) The scheme administrator must give notice of the referral of an access
dispute to arbitration to the parties to the negotiations that gave rise to the
access dispute and, if relevant, to any other person who will be a party to the
access dispute.
216K—Selection of arbitrator
(1) The parties to an access dispute may agree to appoint, in accordance
with the Rules, the arbitrator for the purposes of an access dispute that is to
be referred to arbitration under this Part.
(2) If the parties do not agree to the appointment of an arbitrator within
a period specified by the Rules, the arbitrator will be a person selected by the
scheme administrator after consultation with the parties to the access
dispute.
(3) The arbitrator must be a person who—
(a) is independent of the parties to the dispute; and
(b) is properly qualified to act in the resolution of the dispute;
and
(c) has no direct or indirect interest in the outcome of the
dispute.
(4) If for some reason an arbitrator does not complete an arbitration, the
parties may agree, in accordance with the Rules, to make a fresh appointment
and, in default of agreement within a period specified by the Rules, the scheme
administrator may, after consultation with the parties, make the
appointment.
216L—Determination of access
dispute
(1) Unless an arbitration is terminated under another provision of this
Chapter, the arbitrator must make a determination on access by the prospective
user or user (as the case requires) (including a determination that does not
require a service provider to provide access to any pipeline
services).
(2) A determination may deal with any matter relating to access by the
prospective user or user to the pipeline services specified by the Rules for the
purposes of this subsection (and the arbitrator must not make a determination
that is inconsistent with the Rules or goes beyond the matters specified by the
Rules).
(3) The Rules may also, in connection with the making of an access
determination, contain provisions for or with respect to such things
as—
(a) the form of any determination; and
(b) the content of any determination, including as to the giving of
reasons; and
(c) the time within which a determination must be made; and
(d) the process for making a determination; and
(e) when a determination takes effect; and
(f) the giving of notice of the making of a determination.
216M—Principles to be taken into
account
The arbitrator must, when making a determination on access, take into
account any pricing or other principle specified in the Rules.
216N—Restrictions on access
determinations
(1) The arbitrator must not make an access determination that would have
any of the following effects:
(a) preventing a user obtaining a sufficient amount of a pipeline service
under a contract or previous access determination to be able to meet the user's
reasonably anticipated requirements, measured at the time that the access
dispute was notified;
(b) preventing a prospective user or user from obtaining, by the exercise
of a pre-notification right, a sufficient amount of a pipeline service to be
able to meet the prospective user's or user's actual requirements;
(c) depriving a person of a relevant protected contractual
right.
(2) In this section—
pre-notification right means a right under a contract, or
under an access determination, that was in force at the time when the access
dispute was notified under
section 216H
;
relevant exclusivity right means an express contractual right
that—
(a) prevents a service provider supplying pipeline services to persons who
are not parties to the contract; or
(b) limits or controls a service provider's ability to supply pipeline
services to persons who are not parties to the contract,
but does not include a user's contractual right to obtain a certain amount
of pipeline services;
relevant protected contractual right means a right under a
contract (other than a relevant exclusivity right) that was in force immediately
before notification of an access dispute under
section 216H
.
216O—Arbitrator's power to terminate
arbitration
(1) An arbitrator may determine not to proceed with an arbitration (and
terminate the proceedings under this Chapter) if the arbitrator considers
that—
(a) the notification of the dispute was vexatious; or
(b) the subject matter of the dispute is trivial, misconceived or lacking
in substance; or
(c) the party who notified the access dispute did not negotiate in good
faith; or
(d) there is some other good reason why the arbitration should not
proceed.
(2) Furthermore, the arbitrator may at any time terminate an arbitration
without making an access determination if the arbitrator considers
that—
(a) the prospective user or user seeking access is not engaging in the
arbitration in good faith; or
(b) the terms and conditions on which access is to be granted should be
governed by an existing contract or determination.
(3) The arbitrator may
also at any time terminate an arbitration if the arbitrator considers that a
specified dispute termination circumstance has occurred.
(4) In
subsection (3)
, a specified dispute termination circumstance is a
circumstance specified by the Rules as being a circumstance, the occurrence of
which, entitles the arbitrator to terminate an access dispute without any
further step being taken.
216P—Access seeker's right to terminate
arbitration
(1) The prospective user or user seeking access to pipelines services
under this Chapter may terminate the arbitration before an access determination
is made by the arbitrator.
(2) The arbitration is terminated under this section by giving notice of
termination to—
(a) the arbitrator; and
(b) the other parties to the arbitration; and
(c) the scheme administrator.
Part 4—Compliance with access
determinations
216Q—Compliance with access
determinations
(1) Subject to the Rules and to
subsection (2)
, an access determination is enforceable as if it were a contract between
the parties to the access determination.
(2) A prospective user
or user of a pipeline service to which an access determination relates is not
bound to seek access to the service (but if access is sought or obtained then
the prospective user or user (as the case requires) is bound by any relevant
provision of the access determination).
Part 5—Variation of access
determinations
216R—Variation of access
determinations
(1) An access determination may be varied by agreement between all parties
to the access determination.
(2) The Rules may also contain provisions with respect to seeking
variations to an access determination.
(3) The provisions of this Chapter about the arbitration of an access
dispute apply with necessary modifications to a proposal under the Rules to vary
an access determination or to a dispute arising out of such a
proposal.
Part 6—Hearing procedures
216S—Hearing procedures
Chapter 6 Part 6 applies to an arbitration under this
Chapter—
(a) as if—
(i) a reference in that Part to a dispute hearing were a reference to a
hearing conducted by an arbitrator for the purposes of making an access
determination under this Chapter; and
(ii) a reference in that Part to a party or parties were a reference to a
party or the parties to an arbitration under this Chapter; and
(iii) a reference in that Part to the dispute resolution body were a
reference to an arbitrator under this Chapter; and
(iv) a reference in that Part to an access dispute were a reference to an
access dispute under this Chapter; and
(b) subject to the exclusion of sections 206 and 207, and
subject to any other exclusion prescribed by the Regulations; and
(c) subject to any modifications prescribed by the Regulations;
and
(d) with such other necessary alterations and modifications.
Part 7—Miscellaneous matters
216T—Correction of access determinations for
clerical mistakes etc
The Rules may make provision with respect to correcting the following in an
access determination:
(a) a clerical mistake;
(b) an error arising from an accidental slip or omission;
(c) a material miscalculation of figures or a material mistake in the
description of any person, thing or matter referred to in an access
determination;
(d) a defect in form.
216U—Reservation of capacity during an access
dispute
A service provider who is in an access dispute with a user must not,
without the consent of the user, alter the rights that the user has to use the
capacity of the non-scheme pipeline during the period of the dispute.
216V—Costs of arbitration
(1) Subject to this
section, the costs of an arbitration under this Chapter (including costs
associated with the arbitration process and the cost of the arbitrator) will be
shared equally between the parties to the arbitration.
(2) The Rules may make provision with respect to the costs of an
arbitration under this Chapter, including rules that provide for a different
approach to allocating costs under
subsection (1)
in specified circumstances.
(3) Costs payable to an arbitrator are a debt due to the arbitrator and
may be recovered by the arbitrator in a court of competent
jurisdiction.
(4) Despite anything in a preceding subsection, the parties to an
arbitration will bear their own costs.
7—Amendment
of section 271—Enforcement of access determinations
Section 271—after subsection (4) insert:
(5) A reference in this section to an access determination includes a
reference to an access determination under Chapter 6A.
After section 294E insert:
294F—South Australian Minister to make initial
Rules relating to access to non-scheme pipelines
(1) The Minister in
right of the Crown of South Australia administering Part 2 of the
National
Gas (South Australia) Act 2008
of South Australia (the South Australian Minister) may make
Rules on any 1 or more of the following subjects:
(a) access proposals, access disputes and arbitrations under
Chapter 6A;
(b) the subject matter of a new head power added to Schedule 1 by the
Pipelines Access/Arbitration amendments;
(c) any other subject contemplated by, or consequential on, the Pipelines
Access/Arbitration amendments.
(2) Rules may only be made under
subsection (1)
on the recommendation of the MCE.
(3) Section 74(3) applies to Rules made under
subsection (1)
in the same way as it applies to Rules made by the AEMC.
(4) As soon as
practicable after making Rules under
subsection
(1)
, the South Australian Minister must—
(a) publish notice of
the making of the Rules in the South Australian Government Gazette stating the
date of commencement or, if they commence at different times, various dates of
commencement; and
(b) making the Rules publicly available.
(5) The South Australian Minister may, by a later notice published in the
South Australian Government Gazette, vary a commencement date fixed under
subsection (4)(a)
or this subsection.
(6) Once the first Rules have been made under
subsection (1)
, no further Rules can be made under that subsection.
(7) Rules in the nature of a derogation may be made under this section
even though no request has been made for the derogation.
(8) In this section—
Pipelines Access/Arbitration amendments means the amendments
made to this Law by the National Gas (South Australia) (Pipelines
Access—Arbitration) Amendment Act 2017.
9—Amendment
of Schedule 1—Subject matter for the National Gas
Rules
(1) Schedule 1, item 37—after "access determinations"
insert:
under Chapter 6 or 6A
(2) Schedule 1, item 38—after "access determination"
insert:
under Chapter 6 or an arbitrator to make an access determination under
Chapter 6A
(3) Schedule 1, item 39—after "access determinations that may be
made" insert:
under Chapter 6 or 6A
(4) Schedule 1—after item 48 insert:
48A |
For the purposes of items 40 to 47 (inclusive)— (a) a reference to the dispute resolution body will be taken to include a
reference to an arbitrator under Chapter 6A; and (b) a reference to an access determination will be taken to include a
reference to an access determination under Chapter 6A; and (c) a reference to a covered pipeline will be taken to include a reference
to a non-scheme pipeline under Chapter 6A. |