Western Australian Bills Western Australian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Energy Legislation Amendment Bill 2003
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Amendments relating to gas
supply licensing
3. The Act amended 3
4. Section 11H amended 3
5. Section 11M amended 4
6. Section 11P amended 4
7. Section 11R amended 4
8. Section 11S amended 5
9. Section 11VA inserted 5
10. Section 11W amended 6
11. Section 11ZH amended 6
Part 3 -- Amendments to facilitate a
contestable retail gas market, and
related transitional provisions
Division 1 -- Preliminary
12. The Act amended 7
13. Long title amended 7
14. Section 3 amended 7
Division 2 -- Retail Market Schemes
15. Part 2B inserted 8
16. Schedule 2A inserted 33
210--2 page i
Energy Legislation Amendment Bill 2003
Contents
Division 3 -- Transfer of Minister's functions
under Part 2B of principal Act
17. Definitions 36
18. Purpose of this Division 36
19. Functions transferred from Minister to Authority 36
20. Effect of things done 38
21. Completion of things begun 38
22. Proceedings etc. 38
23. Records 38
24. Instruments 38
25. Reviews in progress etc. 39
26. Regulations for transitional matters 39
Division 4 -- Supply contracts for small use
customers
27. Section 11L amended 39
28. Part 2A Division 4A inserted 40
29. Section 11ZH amended 46
30. Schedule 1 amended 46
Division 5 -- Gas marketing code of conduct
31. Part 2C inserted 47
Division 6 -- Gas industry ombudsman scheme
32. Part 2D inserted 53
33. Schedule 2B inserted 58
34. Parliamentary Commissioner Act 1971 amended 60
Division 7 -- Recovery of costs
35. Section 11Q amended 61
36. Part 2A Division 4C inserted 62
Division 8 -- Last resort supply
37. Part 2A Division 6A inserted 63
38. Section 11ZE amended 68
Division 9 -- Regulation of use of heating value of
gas for charging purposes
39. Section 26 amended 69
Division 10 -- Regulation of supply where gas
from different sources enters a distribution
system
40. The Act amended 69
41. Section 16 inserted 70
page ii
Energy Legislation Amendment Bill 2003
Contents
Division 11 -- Transitional provisions for this Part
Subdivision 1 -- Preliminary
42. Definitions for this Division 71
Subdivision 2 -- Retail market schemes
43. Definitions 71
44. Approval of retail market schemes before
commencement of section 15 71
45. Regulations for retail gas market 72
46. Regulations for transitional matters 73
Subdivision 3 -- Gas supply contracts
47. Definition 73
48. Approval of standard form contract 74
49. Existing contracts 74
50. Non-standard contracts 75
51. Regulations for transitional matters 75
Subdivision 4 -- Initial marketing code of conduct
52. Definition 75
53. Approval of initial marketing code of conduct 76
54. Appointment of initial committee 76
55. Regulations for transitional matters 77
Subdivision 5 -- Initial gas industry ombudsman
scheme
56. Definition 77
57. Approval of initial gas industry ombudsman scheme 77
58. Regulations for transitional matters 78
Subdivision 6 -- Initial last resort supply plan
59. Definition 78
60. Initial last resort supply plan 78
61. Regulations for transitional matters 79
Part 4 -- Amendments to enable grant
of exclusive licences for gas supply
62. The Act amended 80
63. Section 11N amended 80
64. Part 2A Division 4B inserted 80
page iii
Energy Legislation Amendment Bill 2003
Contents
Part 5 -- Amendments relating to the
provision of information to the
Coordinator of Energy
65. The Act amended 83
66. Section 3 amended 83
67. Section 20A inserted 84
68. Section 21 amended 84
69. Section 22 replaced 84
70. Section 23 amended 85
71. Section 24 amended 85
72. Sections 24AA, 24AB and 24AC inserted 86
Part 6 -- Amendments relating to the
transfer of certain energy research
functions to the Coordinator of
Energy
Division 1 -- Minerals and Energy Research
Act 1987
73. The Act amended 89
74. Section 3 amended 89
75. Section 4 amended 90
76. Section 5 amended 90
77. Section 10 replaced 91
78. Section 12 amended 91
79. Section 16 amended 91
80. Sections 18 and 19 replaced and saving provision 91
81. Section 20 amended 93
82. Section 21 repealed 93
83. Section 25 amended 93
84. Section 26 amended 93
85. Section 31 amended 94
86. Section 34 amended 94
87. Section 35 amended 94
88. Part VIII replaced 94
89. Schedules 1 and 2 repealed 95
90. Various references to Department of Mines amended 95
page iv
Energy Legislation Amendment Bill 2003
Contents
Division 2 -- Energy Coordination Act 1994
91. The Act amended 95
92. Long title amended 95
93. Section 6 amended 96
94. Section 11M amended 96
95. Schedule 1 inserted 96
96. Schedule 1 amended 102
Division 3 -- Transitional provisions
97. Definitions 102
98. Ministerial instrument 103
99. Transfer of assets and liabilities 104
100. Responsibility for sustainable energy research matters 104
101. Agreements and instruments 104
Part 7 -- Amendments and validation
provision relating to Western
Power Corporation
Division 1 -- Electricity Corporation Act 1994
102. The Act amended 105
103. Section 7 amended 105
104. Section 70 amended 105
105. Section 70A inserted 105
106. Section 73 amended 106
107. Section 89 amended 107
108. Section 95 amended 108
109. Schedule 5 amended 109
110. Schedule 6 amended 110
111. Schedule 7 amended 112
Division 2 -- Energy Operators (Powers) Act 1979
112. The Act amended 112
113. Section 58 amended 112
114. Section 61 amended 113
115. Section 65 amended and transitional provision 114
116. Validation of certain agreements 116
Part 8 -- Miscellaneous Amendments
117. Gas Pipelines Access (Western Australia) Act 1998
amended 118
118. Energy Coordination Act 1994 amended 118
page v
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Energy Legislation Amendment Bill 2003
A Bill for
An Act to amend --
• the Energy Coordination Act 1994;
• the Parliamentary Commissioner Act 1971;
• the Gas Standards Act 1972;
• the Minerals and Energy Research Act 1987;
• the Electricity Corporation Act 1994;
• the Energy Operators (Powers) Act 1979; and
• some other Acts,
and to validate certain agreements made with Western Power
Corporation, and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Energy Legislation Amendment Bill 2003
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Energy Legislation Amendment
Act 2003.
5 2. Commencement
(1) Except as stated in subsections (2) and (4), this Act comes into
operation on the day on which it receives the Royal Assent.
(2) The following provisions come into operation on a day fixed by
proclamation --
10 (a) Part 2;
(b) Part 3, other than Divisions 3, 10 and 11;
(c) Part 6, other than sections 97 and 98; and
(d) sections 109(4), 109(5), 110(4) and 111.
(3) Different days may be fixed under subsection (2) for different
15 provisions.
(4) Part 3 Division 3 comes into operation on the first anniversary
of the day on which Part 3 Division 2 comes into operation.
(5) A proclamation is not to be published for the purposes of
subsection (2)(c) until section 98(1) has been complied with.
page 2
Energy Legislation Amendment Bill 2003
Amendments relating to gas supply licensing Part 2
s. 3
Part 2 -- Amendments relating to gas supply licensing
3. The Act amended
The amendments in this Part are to the Energy Coordination
Act 1994*.
5 [* Reprinted as at 5 May 2000.
For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 119, see
also Economic Regulation Authority Bill 2002 currently before
Parliament.]
10 4. Section 11H amended
Section 11H(1) is repealed and the following subsections are
inserted instead --
"
(1) The Governor may by order published in the Gazette
15 exempt any person or class of persons from all or any
of the provisions of section 11G.
(1a) An exemption may be expressed to apply --
(a) generally; or
(b) only in respect of a specified supply area or a
20 specified part of a supply area.
(1b) An order under subsection (1) may provide for
circumstances in which, and conditions subject to
which, an exemption is to apply.
(1c) An exemption is of no effect at any time when a
25 condition to which it is subject is not being observed.
".
page 3
Energy Legislation Amendment Bill 2003
Part 2 Amendments relating to gas supply licensing
s. 5
5. Section 11M amended
Section 11M(4) is repealed and the following subsection is
inserted instead --
"
5 (4) The terms and conditions of licences that --
(a) have the same classification under
section 11D(1); and
(b) apply in the same supply area or part of a
supply area,
10 must be substantially similar, except to the extent that
the Authority considers that --
(c) it is not practicable to make them substantially
similar; or
(d) a difference is necessary to reflect particular
15 supply circumstances.
".
6. Section 11P amended
(1) Section 11P is amended by inserting before "An" the subsection
designation "(1)".
20 (2) At the end of section 11P the following subsection is inserted --
"
(2) An applicant must also provide such other information
as the Authority may request for the proper
consideration of the application.
25 ".
7. Section 11R amended
After section 11R(3) the following subsection is inserted --
"
(4) An applicant must also provide such other information
30 as the Authority may request for the proper
consideration of the application.
".
page 4
Energy Legislation Amendment Bill 2003
Amendments relating to gas supply licensing Part 2
s. 8
8. Section 11S amended
After section 11S(2) the following subsection is inserted --
"
(3) The duties imposed on the Authority by subsections (1)
5 and (2) apply only if --
(a) an application has been made in accordance
with section 11L, 11P or 11R, as the case may
be;
(b) section 11WE or 11ZQG does not prohibit the
10 grant or renewal of the licence or the approval
of the transfer; and
(c) where a requirement has been made under
section 11L(3), 11P(2) or 11R(4), the relevant
information has been provided to the Authority.
15 ".
9. Section 11VA inserted
After section 11V the following section is inserted --
"
11VA. Amendment of licence on application of licensee
20 (1) A licensee may apply to the Authority at any time for
amendment of the licence.
(2) An application --
(a) is to be made in a form approved by the
Authority; and
25 (b) is to be accompanied by the prescribed
application fee.
(3) The applicant must also provide such other information
as the Authority may require for the proper
consideration of the application.
page 5
Energy Legislation Amendment Bill 2003
Part 2 Amendments relating to gas supply licensing
s. 10
(4) The Authority may grant the application if --
(a) it has been made in accordance with
subsection (2); and
(b) where a requirement has been made under
5 subsection (3), the relevant information has
been provided to the Authority.
(5) Regulations made under section 26 may require the
Authority, before it makes a decision on an application
under this section, to undertake public consultation in
10 accordance with the procedure specified in the
regulations.
".
10. Section 11W amended
Section 11W(1) is amended by inserting after "may" the
15 following --
" , on its own initiative, ".
11. Section 11ZH amended
(1) After section 11ZH(2)(b) the following paragraph is inserted --
"
20 (ba) to refuse to amend a licence under
section 11VA;
".
(2) Section 11ZH(13) is repealed and the following subsection is
inserted instead --
25 "
(13) When Part 6 Division 2 and section 87 of the Gas
Pipelines Access (Western Australia) Act 1998 refer to
the functions of, and proceedings before, the Board
those functions and proceedings include functions and
30 proceedings under this section.
".
page 6
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Preliminary Division 1
s. 12
Part 3 -- Amendments to facilitate a contestable retail
gas market, and related transitional provisions
Division 1 -- Preliminary
12. The Act amended
5 The amendments in this Part are to the Energy Coordination
Act 1994* unless otherwise indicated.
[* Reprinted as at 5 May 2000.
For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 119, see
10 also Economic Regulation Authority Bill 2002 currently before
Parliament.]
13. Long title amended
The long title is amended by inserting after "licensing scheme;"
the following items --
15 "
• the facilitation of competition in the retail gas market by
provision for appropriate arrangements between
businesses operating in that market, a marketing code of
conduct and a scheme for the resolution of certain
20 customer disputes;
• other regulation of the gas supply industry;
".
14. Section 3 amended
Section 3 is amended in paragraph (b) of the definition of
25 "supply" by deleting "to small use customers".
page 7
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 2 Retail Market Schemes
s. 15
Division 2 -- Retail Market Schemes
15. Part 2B inserted
After Part 2A the following Part is inserted --
"
5 Part 2B -- Gas supply: retail market schemes
Division 1 -- Preliminary
11ZOA. Definitions
In this Part, unless the contrary intention appears --
"approved" means approved by the Minister under
10 Division 3;
"contravene" includes fail to comply with;
"formal entity" means a formal entity referred to in
section 11ZOF(1)(b);
"gas business operator" means --
15 (a) a gas market participant;
(b) a gas transmission operator; and
(c) a prescribed person within the meaning in
section 11ZOD(1)(b);
"gas distribution operator" has the meaning given by
20 section 11ZOC(1)(a);
"gas market participant" has the meaning given by
section 11ZOC(1);
"gas transmission operator" has the meaning given
by section 11ZOD(1)(a);
25 "member", in relation to a retail market scheme,
means a gas market participant who is bound by
agreement to comply with the relevant provisions
of the scheme as required by section 11ZOC(1);
page 8
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Retail Market Schemes Division 2
s. 15
"relevant provisions", in relation to a person, means
the provisions of a retail market scheme or retail
market rules, as the case may be, that are
applicable to the person;
5 "retail gas operator" has the meaning given by
section 11ZOC(1)(b);
"retail market rules" means rules of the kind
described in section 11ZOG, as from time to time
amended, that have effect as part of a retail market
10 scheme;
"retail market scheme" means a scheme of the kind
described in section 11ZOF.
Division 2 -- Purpose and content of a retail
market scheme
15 11ZOB. Purpose of retail market scheme
The purpose of a retail market scheme for a distribution
system is to ensure that the retail gas market that is
supplied through that system is regulated and operates
in a manner that is --
20 (a) open and competitive;
(b) efficient; and
(c) fair to gas market participants and their
customers.
11ZOC. Persons required to comply with a retail market
25 scheme
(1) Each of the following persons (a "gas market
participant") must be bound by agreement, as
provided by section 11ZOF(1)(a), to comply with the
relevant provisions of an approved retail market
30 scheme for a distribution system --
(a) a person (a "gas distribution operator") who
is required to hold a distribution licence for that
system; and
page 9
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 2 Retail Market Schemes
s. 15
(b) a person (a "retail gas operator") who sells
gas that is transported through that system.
(2) This section has effect subject to --
(a) section 11ZOE; and
5 (b) any exemption granted under section 11ZOS.
11ZOD. Persons required to comply with retail market rules
(1) The following persons must comply with the relevant
provisions of the retail market rules made as part of
any approved retail market scheme for a distribution
10 system --
(a) a person (a "gas transmission operator") who
operates a pipeline that is used to transport gas
into that distribution system for supply to
customers of retail gas operators;
15 (b) any other person (a "prescribed person")
who --
(i) is prescribed; or
(ii) belongs to a class of persons that is
prescribed,
20 for the purposes of this paragraph.
(2) Without limiting section 43(7) of the Interpretation
Act 1984, regulations made for the purposes of
subsection (1)(b) may --
(a) prescribe a person in terms that retail market
25 rules apply to the person; or
(b) prescribe a class of persons in terms that retail
market rules apply to persons belonging to the
class,
subject to any specified exception or limitation.
30 (3) This section has effect subject to any exemption
granted under section 11ZOS.
page 10
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Retail Market Schemes Division 2
s. 15
11ZOE. Exception to requirement for a scheme
A retail market scheme is not required to be in force for
a distribution system if --
(a) there is no more than one person who is
5 required to hold a distribution licence for that
system; and
(b) there is no more than one person who sells gas
that is transported through that system.
11ZOF. Elements of retail market scheme
10 (1) A retail market scheme for a distribution system is to
consist of --
(a) one or more agreements made between persons
who are gas market participants in relation to
that system;
15 (b) a formal entity (whether a company,
partnership, trust or otherwise) to provide the
structure through which the scheme is
administered; and
(c) a set of retail market rules.
20 (2) An agreement for the purposes of subsection (1)(a)
may take the form of a provision by which a person, on
becoming a member of a formal entity, is taken to
agree to specified matters.
(3) The documentation for the matters mentioned in
25 subsection (1)(a) and (b) is to set out --
(a) the arrangements and understandings between
the gas market participants concerned;
(b) their mutual rights and obligations; and
(c) all necessary incidental and supplementary
30 provisions,
to achieve the purposes set out in section 11ZOB.
page 11
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 2 Retail Market Schemes
s. 15
(4) Without limiting subsection (3), provision is to be
made in the documentation for a retail market scheme
for --
(a) the administration of the scheme;
5 (b) the cost of administration to be met by the gas
market participants who are members of the
scheme;
(c) how those costs are to be borne as between the
gas market participants concerned;
10 (d) reporting to the Minister on the operation of the
scheme;
(e) the resolution of disputes and questions that
may arise between the gas market participants
concerned;
15 (f) the scheme to be accessible to any gas market
participant in relation to the relevant
distribution system; and
(g) any other matter that is prescribed.
11ZOG. Requirements for retail market rules
20 (1) Retail market rules for a distribution system are to set
out in relation to the operations of the relevant gas
business operators --
(a) the systems, practices, procedures and
processes; and
25 (b) rights and obligations of the gas business
operators and their customers,
that are to be in place to achieve the purposes set out in
section 11ZOB.
(2) Without limiting subsection (1) provision is to be made
30 for and in relation to --
(a) the roles and functions of each kind of gas
business operator;
page 12
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Retail Market Schemes Division 2
s. 15
(b) the transfer of customers between retail gas
operators, including --
(i) the procedures to be followed;
(ii) the information to be provided; and
5 (iii) requirements for the consent of a
customer to be obtained to the taking of
any specified step in respect of the
customer;
(c) the collection, management and use of data
10 arising from the metering of gas flow;
(d) the provision of access to, and copies of, the
data referred to in paragraph (c);
(e) the rights, powers and obligations of gas
business operators, and the procedures that are
15 to apply, in respect of an imbalance during a
particular period between --
(i) the amount of gas of an operator that is
entered on behalf of the operator into a
distribution system or part of a
20 distribution system; and
(ii) the amount of gas that is withdrawn by
the operator from,
that system or that part of a system;
(f) the keeping, retention and auditing of records;
25 (g) the resolution of disputes and questions that
may arise;
(h) subject to Division 3, the requirements to be
observed in making an amendment to, or
replacing, the retail market rules;
30 (i) monitoring compliance with the retail market
rules;
(j) the enforcement of the retail market rules,
including by the imposition of penalties; and
page 13
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 2 Retail Market Schemes
s. 15
(k) any other matter that is prescribed.
(3) Retail market rules are of no effect to the extent that
they are inconsistent with this Act or another written
law.
5 (4) Retail market rules are not subsidiary legislation for the
purposes of the Interpretation Act 1984.
11ZOH. Regulations for retail market scheme or rules
Regulations may be made --
(a) authorising the inclusion in a retail market
10 scheme or in retail market rules of a
provision --
(i) of a particular kind;
(ii) having a particular effect or operation;
or
15 (iii) relating to a particular matter or
particular circumstances;
or
(b) making any provision that --
(i) facilitates the operation of a retail
20 market scheme or retail market rules;
and
(ii) cannot be included in the scheme or
rules under the provisions of
section 11ZOF or 11ZOG.
page 14
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Retail Market Schemes Division 2
s. 15
Division 3 -- Preparation, approval, review and
amendment of retail market schemes
11ZOI. Submission of retail market scheme for approval
(1) A proposed retail market scheme for a distribution
5 system may be submitted to the Minister for approval
by --
(a) the members of; or
(b) the formal entity for,
the proposed scheme.
10 (2) A retail market scheme is not to be submitted under
subsection (1) unless the gas market participants
concerned have agreed to be bound by the scheme.
(3) A retail market scheme for a distribution system is not
to be submitted under subsection (1) unless the gas
15 market participants concerned have consulted with --
(a) any gas transmission operator whose pipeline is
used to transport gas into that system; and
(b) a prescribed person within the meaning in
section 11ZOD(1)(b) in relation to that system.
20 (4) Consultation under subsection (3) is only required --
(a) in relation to the provisions of the retail market
rules that will apply to --
(i) the gas transmission operator; or
(ii) the prescribed person within the
25 meaning in section 11ZOD(1)(b),
as part of the scheme; and
(b) in the case of a person referred to in
paragraph (a)(ii) to the extent that the person --
(i) is required by the regulations to be
30 consulted under subsection (3); or
page 15
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 2 Retail Market Schemes
s. 15
(ii) meets any criteria in relation to the
requirement for consultation that are
prescribed for the purposes of this
subparagraph.
5 11ZOJ. Approval of retail market schemes
(1) Where a proposed retail market scheme is submitted
under section 11ZOI, the Minister may --
(a) in accordance with sections 11ZON and
11ZOP, approve the proposed scheme; or
10 (b) request that it be amended.
(2) If, following a request under subsection (1)(b), the
scheme is submitted with amendments, the Minister
may --
(a) in accordance with sections 11ZON and
15 11ZOP, approve the amended scheme; or
(b) request that it be further amended.
(3) If, following a request under subsection (2)(b), the
scheme is submitted with further amendments, the
Minister is to --
20 (a) approve the amended scheme; or
(b) refuse to approve it,
in accordance with sections 11ZON and 11ZOP.
(4) The Minister is to cause notice of the approval of a
retail market scheme to be published in the Gazette.
25 11ZOK. Commencement of retail market schemes
(1) A retail market scheme comes into force on a day
determined by the Minister by instrument in writing.
(2) The Minister may from time to time, by further
instrument in writing, amend an instrument made under
30 subsection (1).
page 16
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Retail Market Schemes Division 2
s. 15
(3) An instrument made under subsection (1) or (2) is to be
published in the Gazette.
11ZOL. Submission of amendment for approval
(1) The members for the time being of an approved retail
5 market scheme may --
(a) prepare an amendment to the scheme; and
(b) submit the amendment to the Minister for
approval.
(2) An amendment to a retail market scheme is not to be
10 submitted under subsection (1) unless the provisions of
the scheme relating to proposals for amendment of the
scheme have been complied with.
(3) An amendment to the retail market rules made as part
of a scheme for a distribution system is not to be
15 submitted under subsection (1) unless the members of
the scheme have consulted in relation to the
amendment with any of the following who would be
affected by the amendment if it is approved --
(a) a gas transmission operator whose pipeline is
20 used to transport gas into that system; and
(b) a prescribed person within the meaning in
section 11ZOD(1)(b).
(4) Consultation is required under subsection (3) with a
person referred to in subsection (3)(b) only to the
25 extent that the person --
(a) is required by the regulations to be consulted
under that subsection; or
(b) meets any criteria in relation to the requirement
for consultation that are prescribed for the
30 purposes of this paragraph.
page 17
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 2 Retail Market Schemes
s. 15
(5) In this section and in section 11ZOM --
"amendment" includes a replacement for the whole or
part of the retail market scheme.
11ZOM.Approval of amendment
5 Where an amendment is submitted under
section 11ZOL, the Minister is to, in accordance with
sections 11ZOO and 11ZOP --
(a) approve it;
(b) request that it be changed and approve it in a
10 changed form; or
(c) refuse to approve it.
11ZON. Prerequisites to approval of scheme
The Minister may approve a retail market scheme
under section 11ZOJ only if the Minister is satisfied --
15 (a) that the provisions of the scheme --
(i) comply with this Act; and
(ii) are suitable for the purposes of
section 11ZOB;
(b) any other principle, criterion or requirement
20 that is prescribed for the purposes of this
paragraph has been met; and
(c) the consultation required by section 11ZOI(3)
has taken place and --
(i) each person required to be consulted has
25 agreed, if the scheme is approved, to
comply with the relevant provisions of
the retail market rules made as part of
the scheme; or
page 18
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Retail Market Schemes Division 2
s. 15
(ii) if any person required to be consulted
has not so agreed, that person has been
given a reasonable opportunity in the
course of the consultation to provide
5 reasons for not agreeing and any reasons
so provided have been considered.
11ZOO. Prerequisites to approval of amendment
(1) The Minister may approve an amendment to a retail
market scheme under section 11ZOM only if the
10 Minister is satisfied that --
(a) if the amendment is made the provisions of the
scheme --
(i) will comply with this Act; and
(ii) be suitable for the purposes of
15 section 11ZOB;
(b) any other principle, criterion or requirement
that is prescribed for the purposes of this
paragraph has been met.
(2) The Minister may approve an amendment to any retail
20 market rules under section 11ZOM only if the Minister
is satisfied that the consultation required by
section 11ZOL(3) has taken place and --
(a) each person required to be consulted has agreed
to the amendment; or
25 (b) if any person required to be consulted has not
so agreed, that person has been given a
reasonable opportunity in the course of the
consultation to provide reasons for not agreeing
and any reasons so provided have been
30 considered.
page 19
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 2 Retail Market Schemes
s. 15
11ZOP. Matters to which Minister is to have regard
The Minister is also to have regard to --
(a) any principles, criteria or requirements that are
prescribed for the purposes of this paragraph;
5 and
(b) such other matters as the Minister considers
relevant,
when determining whether or not to give an approval
under section 11ZOJ or 11ZOM.
10 11ZOQ. Review of scheme
(1) The Minister must carry out a review of a retail market
scheme as soon as is practicable after the third
anniversary of its commencement.
(2) The purpose of a review is to re-assess the suitability of
15 the provisions of a scheme to achieve the purposes set
out in section 11ZOB.
Division 4 -- Enforcement
Subdivision 1 -- Enforcement of requirements for
membership of scheme
20 11ZOR. Membership required
(1) A gas distribution operator contravenes this section if
the operator --
(a) transports gas through a distribution system;
and
25 (b) is not a member of an approved retail market
scheme in force for that system.
page 20
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Retail Market Schemes Division 2
s. 15
(2) A retail gas operator contravenes this section if the
operator --
(a) sells gas that is transported through a
distribution system; and
5 (b) is not a member of an approved retail market
scheme in force for that system.
(3) Subsections (1) and (2) have effect subject to --
(a) section 11ZOE; and
(b) any exemption granted under section 11ZOS.
10 (4) A person who contravenes this section is liable to a
penalty under section 11ZOT.
11ZOS. Power to exempt
(1) The Minister may by order published in the Gazette
exempt --
15 (a) a gas business operator; or
(b) a class of gas business operators,
from any of the provisions of sections 11ZOC, 11ZOD
and 11ZOR.
(2) An order under subsection (1) may provide for
20 circumstances in which, and conditions subject to
which, an exemption is to apply.
(3) The Minister may only make an order under
subsection (1) if satisfied that the grant of an
exemption --
25 (a) would be consistent with the objects of
section 11ZOB; and
(b) would not be contrary to the public interest.
(4) In determining the question mentioned in
subsection (3)(b) the Minister may take into account
30 one or more of the matters referred to in
section 11H(3).
page 21
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 2 Retail Market Schemes
s. 15
(5) An exemption is of no effect at any time when a
condition to which it is subject is not being observed.
(6) An order under subsection (1) is subsidiary legislation
for the purposes of the Interpretation Act 1984.
5 (7) An order by which an order under subsection (1) is
revoked may contain provisions of a transitional or
supplementary nature in relation to the application of a
provision of this Part to any gas business operator, or
class of gas business operators, affected by the
10 revocation.
11ZOT. Enforcement of section 11ZOR
(1) If, in the opinion of the Minister, a person who is a gas
distribution operator or a retail gas operator has
contravened section 11ZOR, the Minister may cause a
15 notice to be served on the person requiring that the
contravention be rectified within a specified period.
(2) If, in the opinion of the Minister, the person fails to
comply with a notice under subsection (1), the Minister
may in writing order the person to pay a daily
20 monetary penalty fixed by the Minister, but not
exceeding $10 000.
(3) For the purposes of subsection (2), the daily penalty is
a penalty for each day on which the person acts in
contravention of section 11ZOR.
25 (4) The Minister is not to make an order under
subsection (2) unless the person has been --
(a) notified in writing of the proposed order; and
(b) given a reasonable opportunity to show why the
order should not be made.
30 (5) The Minister may recover a penalty imposed under
subsection (2) in a court of competent jurisdiction as a
debt due by the person to the Crown.
page 22
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Retail Market Schemes Division 2
s. 15
Subdivision 2 -- Enforcement of retail market
scheme and rules
11ZOU. Minister may impose penalty for breach
(1) This section applies if, in the opinion of the Minister --
5 (a) a person who is a gas market participant
contravenes a relevant provision of a retail
market scheme; or
(b) a person who is --
(i) a gas transmission operator; or
10 (ii) a prescribed person within the meaning
in section 11ZOD(1)(b),
contravenes a relevant provision of retail
market rules.
(2) The Minister may cause a notice to be served on the
15 person requiring that the contravention be rectified
within a specified period.
(3) If, in the opinion of the Minister, the person fails to
comply with a notice served under subsection (2), the
Minister may --
20 (a) serve a letter of reprimand on the person; or
(b) in writing order the person to pay a monetary
penalty fixed by the Minister, but not exceeding
$100 000.
(4) The Minister is not to serve a letter or make an order
25 under subsection (3) unless the person has been --
(a) notified in writing that the Minister proposes to
take action under subsection (3); and
(b) given a reasonable opportunity to show why
such action should not be taken.
page 23
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 2 Retail Market Schemes
s. 15
(5) The Minister may recover a penalty imposed under
subsection (3)(b) in a court of competent jurisdiction as
a debt due to the Crown by the person concerned.
Subdivision 3 -- Prohibition of certain conduct in relation to
5 a retail market scheme
11ZOV. Conduct preventing or hindering operation
(1) A person to whom this section applies must not engage
in conduct (the "prohibited conduct") for the purpose
of --
10 (a) preventing or hindering;
(b) attempting to prevent or hinder; or
(c) conspiring with others to prevent or hinder,
the operation of a retail market scheme in accordance
with section 11ZOB.
15 (2) A person to whom this section applies must not --
(a) aid, abet, counsel or procure a person to engage
in the prohibited conduct;
(b) induce, or attempt to induce, a person, whether
by threats or promises or otherwise, to engage
20 in the prohibited conduct; or
(c) be in any way, directly or indirectly, knowingly
concerned in, or party to, the engagement of a
person in the prohibited conduct.
(3) This section applies to --
25 (a) a gas business operator in relation to the retail
market scheme concerned;
(b) a person who is party to an agreement with
such a gas business operator relating to the
supply or distribution of gas; or
page 24
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Retail Market Schemes Division 2
s. 15
(c) an associate of --
(i) a gas business operator referred to in
paragraph (a); or
(ii) a person referred to in paragraph (b).
5 11ZOW. Interpretation of section 11ZOV
(1) In section 11ZOV --
(a) a reference to engaging in conduct is a
reference to --
(i) doing or refusing to do any act,
10 including --
(I) refusing to supply a service; or
(II) without reasonable grounds,
limiting or disrupting a service;
(ii) making, or giving effect to a provision
15 of, a contract or arrangement;
(iii) arriving at, or giving effect to a
provision of, an understanding; or
(iv) requiring the giving of, or giving, a
covenant;
20 (b) a reference to refusing to do an act includes a
reference to --
(i) refraining (otherwise than inadvertently)
from doing that act;
(ii) making it known that that act will not be
25 done.
(2) In section 11ZOV(3)(c) --
"associate" has the meaning it would have under
Part 1.2 Division 2 of the Corporations Act 2001
of the Commonwealth if sections 13, 14, 16(2)
30 and 17 of that Act were repealed.
page 25
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 2 Retail Market Schemes
s. 15
11ZOX. Establishing purpose of conduct
(1) For the purposes of section 11ZOV, a person is taken
to engage in conduct for a particular purpose if --
(a) the conduct is or was engaged in for that
5 purpose or for a purpose that includes, or
included, that purpose; and
(b) that purpose is or was a substantial purpose.
(2) A person may be taken to have engaged in conduct for
the purpose referred to in section 11ZOV even though,
10 after all the evidence has been considered, the
existence of that purpose is ascertainable only by
inference from --
(a) the conduct of the person or of any other
person; or
15 (b) other relevant circumstances.
(3) Subsection (2) does not limit the manner in which the
purpose of a person may be established for the purpose
of section 11ZOV.
11ZOY. Remedies for breach of section 11ZOV
20 (1) Criminal proceedings (including proceedings under
section 177 of The Criminal Code) do not lie against a
person by reason only that the person has contravened
section 11ZOV(1) or (2).
(2) The remedies set out in Schedule 2A are available
25 where a person has contravened section 11ZOV(1) or
(2).
(3) Nothing in this section or Schedule 2A affects the right
of a person --
(a) to bring civil proceedings in respect of any
30 matter or thing; or
page 26
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Retail Market Schemes Division 2
s. 15
(b) to seek any relief or remedy,
if the cause of action arises, or the relief or remedy is
sought, on grounds that do not rely on section 11ZOV.
Division 5 -- Directions
5 Subdivision 1 -- Directions to amend retail market scheme
11ZOZ. Minister may direct amendment
(1) The Minister may in writing direct the members of a
retail market scheme to make a specified amendment to
the scheme, and to do so within a specified time.
10 (2) The Minister must consult with the members concerned
before giving a direction under subsection (1).
(3) The members must comply with a direction given to
them under subsection (1).
11ZP. Non-compliance with direction for amendment
15 (1) If, in the opinion of the Minister, the persons who are
required to comply with a direction under
section 11ZOZ fail to do so, the Minister may in
writing order each of them to pay a daily monetary
penalty fixed by the Minister, but not exceeding
20 $2 000.
(2) For the purposes of subsection (1) the daily penalty in
respect of a person is a penalty for each day on
which --
(a) the person carries on business; and
25 (b) the direction given under section 11ZOZ is not
complied with.
(3) The Minister is not to make an order against a person
under subsection (1) unless the person has been --
(a) notified in writing of the proposed order; and
page 27
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 2 Retail Market Schemes
s. 15
(b) given a reasonable opportunity to show why the
order should not be made.
(4) The Minister may recover a penalty imposed under
subsection (1) in a court of competent jurisdiction as a
5 debt due by the person to the Crown.
(5) In subsection (2)(a) --
"business" means --
(a) in the case of a gas distribution operator, the
transport of gas through the relevant
10 distribution system; and
(b) in the case of a retail gas operator, the sale of
gas that is transported through the relevant
distribution system.
Subdivision 2 -- Directions as to operation of
15 retail market scheme
11ZPA. Directions to governing body of a scheme
(1) The Minister may, by notice in writing to the
governing body of a scheme, give directions as to --
(a) the provision of information or reports, or the
20 making of periodical returns, to the Minister by
the governing body;
(b) the attendance of a nominee of the Minister as
an observer at meetings of the governing body;
(c) the provision of meeting papers and related
25 material to the Minister in advance of meetings;
or
(d) any other prescribed matter.
(2) A direction may only be given under this section so far
as the Minister considers it is necessary or expedient --
30 (a) to achieve any of the purposes set out in
section 11ZOB;
page 28
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Retail Market Schemes Division 2
s. 15
(b) for monitoring the operation of a retail market
scheme; or
(c) for keeping the Minister informed as to --
(i) the affairs of a formal entity, including
5 its financial affairs; or
(ii) proposals that will affect the conduct of
its affairs.
(3) The Minister must consult with the governing body
concerned before giving a direction under
10 subsection (1).
(4) The Minister is to cause --
(a) notice of the giving of a direction under this
section; and
(b) a description of the nature of the direction,
15 to be published in the Gazette within 14 days after the
direction is given.
(5) A governing body must comply with a direction given
to it under this section.
(6) The Minister may, in writing, revoke or amend a
20 direction given under this section.
(7) In this section --
"governing body of a scheme" means the governing
body of the formal entity mentioned in
section 11ZOF(1)(b) for a retail market scheme.
25 11ZPB. Enforcement of directions
(1) If, in the opinion of the Minister, a governing body of a
formal entity fails to comply with a direction given to it
under section 11ZPA the Minister may in writing order
the formal entity to pay a monetary penalty fixed by
30 the Minister, but not exceeding $100 000.
page 29
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 2 Retail Market Schemes
s. 15
(2) The Minister is not to make an order under
subsection (1) unless the formal entity has been --
(a) notified in writing of the proposed order; and
(b) given a reasonable opportunity to show why the
5 order should not be made.
(3) The Minister may recover a penalty imposed under
subsection (1) in a court of competent jurisdiction as a
debt due to the Crown by the formal entity.
(4) References in this section to a formal entity include, in
10 the case of an entity that is not a body corporate, the
members of the entity.
Division 6 -- Review of certain decisions
11ZPC. Definition
In this Division --
15 "Board" means the Western Australian Gas Review
Board established by the Gas Pipelines Access
(Western Australia) Act 1998.
11ZPD. Review of decision to refuse approval
(1) If the Minister refuses to approve a retail market
20 scheme under section 11ZOJ the gas market
participants concerned, or the formal entity for the
proposed scheme, may apply to the Board for a review
of the decision.
(2) If the Minister refuses to approve an amendment to a
25 retail market scheme under section 11ZOM the
members of the scheme, or the formal entity for the
scheme, may apply to the Board for a review of the
decision.
page 30
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Retail Market Schemes Division 2
s. 15
11ZPE. Review of direction to amend scheme
If the Minister gives a direction under section 11ZOZ
for the amendment of a retail market scheme, the
members of the scheme, or the formal entity for the
5 scheme, may apply to the Board for a review of the
direction.
11ZPF. Review of penalty
(1) If the Minister makes an order imposing a penalty on a
person under section 11ZOT(2), 11ZOU(3)(b) or
10 11ZP(1), the person may apply to the Board for a
review of the decision.
(2) If the Minister makes an order imposing a penalty on a
formal entity under section 11ZPB(1), the governing
body of the formal entity may apply to the Board for a
15 review of the decision.
11ZPG. Time for making application
An application under this Division must be made
within 14 days after the applicant received notice in
writing of the decision or direction of the Minister.
20 11ZPH. Conduct of review
(1) The provisions of section 11ZH(3), (4), (5), (6), (7),
(8), (10), (11) and (13) apply for the purposes of a
review under this Division in the same way as they
apply to a review and proceedings under subsection (2)
25 of that section.
(2) Subsection (1) also applies to the provisions of
section 11ZH(9) and (12) except that the references in
those subsections to the Authority are to be read as
references to the Minister.
page 31
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 2 Retail Market Schemes
s. 15
Division 7 -- Regulations for operation of
retail gas market
11ZPI. Regulations for retail gas market
(1) On the recommendation of the Minister, regulations
5 may be made in relation to a distribution system that
are necessary or convenient to ensure that the retail gas
market that is supplied through that system is regulated
and operates in a manner that is --
(a) open and competitive;
10 (b) efficient; and
(c) fair to gas market participants and their
customers.
(2) Without limiting subsection (1), regulations made in
relation to a distribution system may --
15 (a) provide for and in relation to matters that are
required to be provided for by a retail market
scheme, including those described in
section 11ZOG;
(b) prohibit the continued operation of an approved
20 retail market scheme for that system except as
may be provided for in the regulations; and
(c) provide for the punishment of a contravention
of the regulations, including by the imposition
of monetary penalties as provided in
25 section 11ZOU.
11ZPJ. Grounds for Minister's recommendation
(1) The Minister may under section 11ZPI recommend the
making of regulations for a distribution system only if
the Minister considers that --
30 (a) any approved retail market scheme for that
system --
(i) has ceased to be suitable for the
purposes of section 11ZOB; or
page 32
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Retail Market Schemes Division 2
s. 16
(ii) is not being implemented in a manner
that is suitable for those purposes;
or
(b) the formal entity for an approved retail market
5 scheme for that system --
(i) is not functioning effectively; or
(ii) is subject to external administration
under the Corporations Act 2001 of the
Commonwealth.
10 (2) A recommendation made by the Minister under
section 11ZPI is not liable to be challenged, reviewed
or called in question in any court.
11ZPK. Regulations override scheme etc.
Regulations made under section 11ZPI for a
15 distribution system have effect despite, and to the
exclusion of --
(a) the provisions of any approved retail market
scheme that would otherwise apply to that
system; and
20 (b) any provision of this Part, other than Division 1
and this Division.
".
16. Schedule 2A inserted
After Schedule 2 the following Schedule is inserted --
25 "
Schedule 2A -- Remedies for contravention of
section 11ZOV
[s. 11ZOY]
1. Definition
30 In this Schedule --
"Court" means the Supreme Court.
page 33
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 2 Retail Market Schemes
s. 16
2. Actions for damages for contravention of section 11ZOV
(1) A person who suffers loss or damage by reason of a
contravention of section 11ZOV(1) or (2) may recover the
amount of the loss or damage by action in a court of
5 competent jurisdiction against the person who engaged in
the conduct that constituted the contravention.
(2) An action under subclause (1) must be commenced within
3 years after the day on which the cause of action accrued.
3. Injunction
10 (1) If, on an application being made, the Court is satisfied that a
person has engaged, or is proposing to engage, in conduct
that constitutes or would constitute a contravention of
section 11ZOV(1) or (2), the Court may grant an injunction
in such terms as it determines to be appropriate.
15 (2) An application under subclause (1) may be made by any
person, whether or not the person has suffered loss or
damage by reason of the conduct concerned.
(3) If an application has been made for an injunction under
subclause (1), the Court may, if the Court determines it to be
20 appropriate, grant an injunction by consent of all the parties
to the proceedings, whether or not the Court is satisfied that
a person has engaged, or is proposing to engage, in conduct
of a kind mentioned in subclause (1).
(4) If, in the opinion of the Court, it is desirable to do so, it may
25 grant an interim injunction pending determination of an
application under subclause (1).
(5) The Court may rescind or vary an injunction granted under
subclause (1), (3) or (4).
(6) The power of the Court to grant an injunction under
30 subclause (1) 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 referred to in subclause (1);
page 34
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Retail Market Schemes Division 2
s. 16
(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 other person if the person
5 engages in conduct of that kind.
(7) The power of the Court to grant an injunction requiring a
person to do any act or thing may be exercised 
(a) whether or not it appears to the Court that the
person intends to refuse or fail again, or to continue
10 to refuse or fail, to do that act or thing;
(b) whether or not the person has previously refused or
failed to do that act or thing; and
(c) whether or not there is an imminent danger of
substantial damage to any other person if the person
15 refuses or fails to do that act or thing.
(8) The Court is not to require an applicant under this section or
any other person, as a condition of granting an interim
injunction, to give any undertaking as to damages.
(9) Nothing in this clause affects any other power the Court
20 may have to grant injunctive relief.
4. Declaratory relief
(1) The Court, on application being made, may make an order
declaring whether or not a particular person has engaged in
conduct that constitutes a contravention of
25 section 11ZOV(1) or (2).
(2) An application under subclause (1) may be made by any
person, whether or not the person has suffered loss or
damage by reason of the conduct concerned.
(3) An order under subclause (1) in respect of a person may
30 include one or more of the following 
(a) a requirement that the person cease, within a
specified period, the act, activity or practice
constituting the contravention;
page 35
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 3 Transfer of Minister's functions under Part 2B of principal Act
s. 17
(b) a requirement that the person take such action, or
adopt such practice, as the Court requires for
remedying the contravention or preventing a
recurrence of the contravention;
5 (c) a declaration that the person has contravened a
relevant provision of the retail market rules
concerned.
".
Division 3 -- Transfer of Minister's functions under Part 2B
10 of principal Act
17. Definitions
In this Division --
"Authority" and "Minister" have the same meanings as they
have for the purposes of the principal Act;
15 "commencement day" means the day on which this Division
comes into operation as provided by section 2(4);
"Part 2B function" means a function under Part 2B of the
principal Act that by operation of section 19(1) is vested in
the Authority in place of the Minister;
20 "principal Act" means the Energy Coordination Act 1994.
18. Purpose of this Division
The purpose of this Division is to vest all of the functions of the
Minister under Part 2B of the principal Act in the Authority on
and after the first anniversary of the day on which Division 2
25 comes into operation.
19. Functions transferred from Minister to Authority
(1) Each of the provisions referred to in the Table to this subsection
is amended by deleting "Minister" wherever it occurs and
inserting instead --
30 " Authority ".
page 36
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Transfer of Minister's functions under Part 2B of principal Act Division 3
s. 19
Table
s. 11ZOF(4)(d) s. 11ZOS(1), (3) and (4)
s. 11ZOI(1) s. 11ZOT(1), (2), (4) and (5)
s. 11ZOJ(1), (2), (3) and (4) s. 11ZOU(1), (2), (3), (4) and (5)
s. 11ZOK(1) and (2) s. 11ZOZ(1) and (2)
s. 11ZOL(1)(b) s. 11ZP(1), (3) and (4)
s. 11ZOM s. 11ZPA(1) and (1)(a), (b) and
(c)
s. 11ZON s. 11ZPA (2), (2)(c), (3), (4) and
(6)
s. 11ZOO(1) and (2) s. 11ZPB(1), (2) and (3)
s. 11ZOP s. 11ZPI(1)
s. 11ZOQ(1) s. 11ZPJ(1) and (2)
(2) Each of the provisions referred to in the Table to this subsection
is amended by deleting "Minister" and inserting instead --
" Authority ".
5 Table
s. 11ZPD(1) and (2)
s. 11ZPE
s. 11ZPF(1) and (2)
s. 11ZPG
(3) Section 11ZOA is amended, in the definition of "approved" by
deleting "Minister" and inserting instead --
" Authority ".
(4) Section 11ZPH is repealed and the following section is inserted
10 instead --
"
11ZPH. Conduct of review
The provisions of section 11ZH, other than
subsections (1), (2) and (2a), apply for the purposes of
15 a review under this Division in the same way as they
apply to a review and proceedings under subsection (2)
of that section.
".
page 37
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 3 Transfer of Minister's functions under Part 2B of principal Act
s. 20
20. Effect of things done
On and after the commencement day any act, matter or thing
done or omitted to be done before that day by, to, or in respect
of, the Minister in the performance of a Part 2B function (to the
5 extent that that act, matter or thing has any force or effect) is to
be taken to have been done or omitted by, to, or in respect of,
the Authority.
21. Completion of things begun
On and after the commencement day, anything lawfully
10 commenced by the Minister in the performance of a Part 2B
function may be carried on and completed by the Authority.
22. Proceedings etc.
Any proceedings or remedy that immediately before the
commencement day might have been brought or continued by or
15 available against or to the Minister in relation to the
performance of a Part 2B function may, on and after that day, be
brought or continued and is available, by or against or to the
Authority.
23. Records
20 The Authority is to take delivery of all papers, documents,
minutes and other records (however compiled, recorded or
stored) relating to the Part 2B functions that, immediately
before the commencement day, are in the possession or under
the control of the Minister.
25 24. Instruments
Any instrument relating to the performance of a Part 2B
function that is in existence immediately before the
commencement day and that --
(a) was made by the Minister; or
page 38
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Supply contracts for small use customers Division 4
s. 25
(b) contains a reference to the Minister,
has effect after the commencement day as if --
(c) the Authority were substituted for the Minister as the
maker of the instrument; and
5 (d) any reference in the instrument to the Minister were
(unless the context otherwise requires) amended to be or
include a reference to the Authority.
25. Reviews in progress etc.
(1) The conduct of a review under Part 2B Division 6 of the
10 principal Act of a decision or direction of the Minister that was
begun but not disposed of before the commencement day is not
affected by an amendment made by section 19(2).
(2) Any such review may be continued and disposed of as if it were
a review of a decision or direction of the Authority.
15 26. Regulations for transitional matters
(1) If there is insufficient provision in this Division to achieve the
purpose mentioned in section 18, the Governor may make the
necessary provision by regulations.
(2) If in the opinion of the Minister an anomaly arises in the
20 operation of any provision of this Division, the Governor may
by regulations make such provision as is necessary --
(a) to remove the anomaly; and
(b) to achieve the purpose mentioned in section 18.
Division 4 -- Supply contracts for small use customers
25 27. Section 11L amended
Section 11L(2)(b)(ii) is deleted.
page 39
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 4 Supply contracts for small use customers
s. 28
28. Part 2A Division 4A inserted
After Part 2A Division 4 the following Division is inserted --
"
Division 4A -- Supply contracts for small use customers
5 Subdivision 1 -- Preliminary
11WB. Definitions
In this Division, unless the contrary intention
appears --
"customer" means a small use customer;
10 "non-standard contract" means a contract entered
into between a licensee and a customer, or a class
of customers, that is not a standard form contract;
"standard form contract" means a contract that is
approved under section 11WF.
15 Subdivision 2 -- Requirements for supply contracts
11WC. Regulations as to supply contracts
(1) The regulations may provide for and in relation to --
(a) the terms, conditions and provisions of --
(i) a standard form contract; and
20 (ii) a non-standard contract,
under which the holder of a trading licence
supplies gas to customers;
(b) the right of a customer at his or her discretion
to rescind a contract during a specified period
25 after it is entered into (a "cooling-off period");
(c) the supply of gas, and payment for gas
supplied, during a cooling-off period;
page 40
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Supply contracts for small use customers Division 4
s. 28
(d) the format of, and manner of expression to be
used in, a contract referred to in paragraph (a);
and
(e) the provision of information about contracts by
5 the holder of a trading licence to customers.
(2) The regulations may provide --
(a) for and in relation to the standards of service
that the holder of a trading licence is to provide
to customers in connection with the supply of
10 gas; and
(b) for the inclusion in contracts referred to in
subsection (1)(a) of requirements that the
licensee comply with any such standard.
(3) The regulations may apply, adopt or incorporate any
15 provision of a code or a standard that is contained in
another document, and may do so --
(a) with or without modification; or
(b) as the provision is in force --
(i) at the time when the regulations are
20 made; or
(ii) from time to time.
11WD. Form of contract to be submitted with application
for grant, renewal or transfer
(1) An applicant for the grant or renewal of a trading
25 licence must submit with the application a draft of the
standard form contract under which the applicant will
supply gas to customers pursuant to the licence.
(2) Where an application is made under section 11R for the
transfer of a trading licence to be approved, the
30 proposed transferee must submit with the application a
draft of the standard form contract under which the
proposed transferee will supply gas to customers
pursuant to the licence if the transfer is approved.
page 41
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 4 Supply contracts for small use customers
s. 28
11WE. Licence application not to be granted unless
standard form contract approved
Despite section 11S, the Authority is not to grant or
renew, or approve a transfer of, a trading licence
5 unless --
(a) the applicant or the proposed transferee has
submitted a draft form of contract as required
by section 11WD; and
(b) the Authority has approved the standard form
10 contract under which the applicant or proposed
transferee will supply gas to customers
pursuant to the licence.
11WF. Approval of standard form contract
(1) Subject to subsection (2), the Authority may at its
15 discretion approve or refuse to approve a standard form
contract submitted under section 11WD.
(2) The Authority is not to give an approval if it considers
that the standard form contract --
(a) will not meet the requirements of the
20 regulations in respect of such contracts; or
(b) will be inconsistent with --
(i) this Act or any other written law; or
(ii) any term, condition or provision of the
licence concerned.
25 11WG. Licence conditions
(1) It is a condition of every trading licence that, subject to
any exception provided for in the regulations, the
licensee must not supply gas to a customer otherwise
than under --
30 (a) a standard form contract in a form that has been
approved under this Division; or
page 42
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Supply contracts for small use customers Division 4
s. 28
(b) a non-standard contract that complies with this
Act.
(2) It is also a condition of every trading licence that the
licensee must comply with a direction given to the
5 licensee under section 11WI.
(3) For the purposes of subsection (1)(b), a non-standard
contract complies with this Act if it --
(a) meets the requirements of the regulations in
respect of such contracts; and
10 (b) is not inconsistent with --
(i) this Act or any other written law; or
(ii) any term, condition or provision of the
licence concerned.
11WH. Amendment or replacement of standard form
15 contract
(1) The holder of a trading licence may submit to the
Authority for approval --
(a) any amendment to the standard form contract
approved under this Subdivision; or
20 (b) a replacement for the standard form contract so
approved.
(2) Section 11WF applies to an amendment or a
replacement submitted under subsection (1) in the same
way as it applied to the standard form contract or the
25 original standard form contract.
11WI. Authority may direct that amendment be made
(1) This section applies if, in the opinion of the Authority,
a standard form contract approved under this
Subdivision --
30 (a) no longer meets the requirements of the
regulations in respect of such contracts; or
page 43
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 4 Supply contracts for small use customers
s. 28
(b) is no longer consistent with --
(i) this Act or any other written law; or
(ii) any term, condition or provision of the
licence concerned.
5 (2) The Authority may direct the holder of the trading
licence concerned --
(a) to submit an appropriate amendment to the
form of contract to the Authority for approval
under section 11WH(1); and
10 (b) to do so within a specified period.
(3) In subsection (2)(a) --
"appropriate amendment" means an amendment --
(a) specified by the Authority; or
(b) otherwise determined by the Authority to be
15 suitable for approval.
Subdivision 3 -- Default supplier
11WJ. Definitions
In this Subdivision --
"delivery point" means a point on a pipeline in a
20 distribution system at which gas is withdrawn
from that system and delivered to the holder of a
trading licence;
"retail market rules" and "retail market scheme"
have the same meanings as they have in
25 section 11ZOA.
11WK. Deemed contract where customer takes gas without
making arrangements
(1) This section applies if a customer commences to take a
supply of gas at premises without entering into a
30 contract for that supply with the holder of a trading
licence.
page 44
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Supply contracts for small use customers Division 4
s. 28
(2) The gas is deemed to be supplied under the standard
form contract of the default supplier for the delivery
point in respect of those premises, as determined under
the provisions mentioned in section 11WL.
5 (3) The contract referred to in subsection (2) continues in
force until --
(a) it is terminated; or
(b) the supply of gas to the customer at the
premises by the default supplier becomes
10 subject to a non-standard contract with that
supplier.
(4) The regulations may provide that, where this section
applies, any term, condition, or provision of a standard
form contract --
15 (a) does not have effect; or
(b) has effect as if it had been modified as provided
for in the regulations.
11WL. Determination of default supplier
Retail market rules are to require --
20 (a) that a default supplier be determined in
accordance with the rules for each relevant
delivery point;
(b) that the default supplier so determined is to be
the holder of a trading licence that supplies gas
25 at that delivery point; and
(c) that a register be established and maintained, in
accordance with the rules, showing the name of
the default supplier for the time being
determined for each delivery point.
30 ".
page 45
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 4 Supply contracts for small use customers
s. 29
29. Section 11ZH amended
(1) After section 11ZH(2)(a) the following paragraph is inserted --
"
(aa) to refuse to approve --
5 (i) a standard form contract under
section 11WF; or
(ii) an amendment to or replacement for a
standard form contract under
section 11WH;
10 ".
(2) After section 11ZH(2) the following subsection is inserted --
"
(2a) A licensee may apply to the Board for a review of a
direction given to the licensee by the Authority under
15 section 11WI.
".
(3) Section 11ZH(9) is amended by inserting after "decision" in
both places where it appears the following --
" or direction ".
20 (4) Section 11ZH(11) is amended by inserting after "decision" the
following --
" or direction ".
(5) Section 11ZH(12) is amended by inserting after "decision" the
following --
25 " or direction ".
30. Schedule 1 amended
Schedule 1 is amended by deleting paragraph (k)(i).
page 46
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Gas marketing code of conduct Division 5
s. 31
Division 5 -- Gas marketing code of conduct
31. Part 2C inserted
After Part 2B the following Part is inserted --
"
5 Part 2C -- Code of conduct for marketing of gas
to small use customers
11ZPL. Definitions
In this Part --
"code of conduct" means the code of conduct
10 approved under section 11ZPM;
"committee" means the committee established under
section 11ZPO;
"customer" means a small use customer;
"gas marketing agent" means --
15 (a) a person who acts on behalf of the holder of
a trading licence ("licensee") --
(i) for the purpose of obtaining new
customers for the licensee; or
(ii) in dealings with existing customers in
20 relation to contracts for the supply of
gas by the licensee;
(b) a person who acts --
(i) on behalf of one or more customers;
or
25 (ii) as an intermediary between one or
more customers and a licensee,
in respect of the supply of gas to the
customer or customers;
(c) a person who engages in any other activity
30 relating to the marketing of gas that is
page 47
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 5 Gas marketing code of conduct
s. 31
prescribed for the purposes of this definition;
and
(d) a representative, agent or employee of a
person referred to in paragraph (a), (b) or (c);
5 "marketing" includes engaging or attempting to
engage in any of the following activities by any
means, including door to door or by telephone or
other electronic means --
(a) negotiations for, or dealings in respect of, a
10 contract for the supply of gas to a customer;
(b) advertising, promotion, market research or
public relations in relation to the supply of
gas to customers.
11ZPM. Code of conduct
15 (1) The Authority may, in consultation with the committee,
approve a code of conduct under this section.
(2) The code of conduct is to regulate and control the
conduct of --
(a) the holders of trading licenses; and
20 (b) gas marketing agents,
with the object of --
(c) protecting customers from undesirable
marketing conduct; and
(d) defining standards of conduct in the marketing
25 of gas to customers.
(3) The code of conduct may contain such ancillary and
incidental provisions as are necessary or expedient for
the purposes of subsection (2).
(4) Subsection (1) has effect subject to section 53 of the
30 Energy Legislation Amendment Act 2003.
page 48
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Gas marketing code of conduct Division 5
s. 31
11ZPN. Code is subsidiary legislation
The code of conduct is subsidiary legislation for the
purposes of the Interpretation Act 1984.
11ZPO. Consultative committee
5 (1) The Authority is to establish a committee to advise it
on matters relating to the code of conduct.
(2) The Authority --
(a) is to prescribe the membership, constitution and
procedures of; and
10 (b) may discharge, alter, or reconstitute,
the committee.
(3) The Authority may determine that a member of the
committee is to receive remuneration or an allowance,
and if the Authority so determines it is to fix the
15 remuneration or allowance on the recommendation of
the Minister for Public Sector Management.
(4) Subject to this section, the committee may determine
its own procedure.
(5) The Authority is to provide the committee with such
20 support services as it may reasonably require.
(6) This section has effect subject to section 54 of the
Energy Legislation Amendment Act 2003.
11ZPP. Licence condition
It is a condition of every trading licence that the
25 licensee is to comply with the provisions of the code of
conduct that apply to the licensee.
page 49
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 5 Gas marketing code of conduct
s. 31
11ZPQ. Enforcement of code of conduct against marketing
agents
The code of conduct may provide --
(a) that the contravention of a provision of the code
5 of conduct by a gas marketing agent constitutes
an offence; and
(b) that an offence is punishable by a penalty not
exceeding --
(i) $5 000 for an individual; and
10 (ii) $20 000 for a body corporate.
11ZPR. Code may provide for vicarious liability
The code of conduct may provide for and in relation to
the liability of the holder of a trading licence, in the
absence of excusatory circumstances, for an act or
15 omission of the licensee's gas marketing agents that
contravene the code of conduct.
11ZPS. Code may include presumption of authority
The code of conduct may provide for a presumption
that a person who carries out any marketing activity in
20 the name of or for the benefit of --
(a) the holder of a trading licence; or
(b) a gas marketing agent,
is to be taken, unless the contrary is proved, to have
been employed or authorised by that licensee or gas
25 marketing agent to carry out that activity.
11ZPT. Authority to monitor compliance
It is a function of the Authority to monitor and enforce
compliance with the code of conduct.
page 50
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Gas marketing code of conduct Division 5
s. 31
11ZPU. Comment to be sought on amendment or
replacement of code
(1) Whenever the Authority proposes to exercise the
power --
5 (a) to amend the code of conduct; or
(b) to repeal and replace it,
the Authority must --
(c) refer the proposed amendment or replacement
to the committee for its advice; and
10 (d) have regard to any advice given by the
committee.
(2) Before the committee gives its advice to the Authority,
it must, in accordance with section 11ZPW, give any
interested person an opportunity to offer comments on
15 the amendment or replacement.
(3) The committee must take into account any comments
received under subsection (2) in formulating its advice.
11ZPV. Review of code
(1) The committee must carry out a review of the code of
20 conduct as soon as is practicable after --
(a) the first anniversary of its commencement; and
(b) the expiry of each 2 yearly interval after that
anniversary.
(2) The object of a review is to re-assess the suitability of
25 the provisions of the code of conduct for the purposes
of section 11ZPM(2).
(3) The committee must, in accordance with
section 11ZPW, give any interested person an
opportunity to offer comments relevant to the review.
page 51
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 5 Gas marketing code of conduct
s. 31
(4) The committee must take into account any comments
received under subsection (3) in carrying out the
review.
(5) The committee must prepare a report based on the
5 review and give it to the Authority.
11ZPW. Further provisions about opportunity to comment
For the purposes of sections 11ZPU(2) and
11ZPV(3) --
(a) an interested person is a person --
10 (i) who the committee considers has a
particular interest in the amendment,
replacement or review; or
(ii) who is determined by the Authority, by
notice in writing to the committee, to
15 have such an interest;
(b) an opportunity to offer comments is an
opportunity to furnish written comments to the
committee within --
(i) a period specified by the Authority by
20 notice in writing to the committee; or
(ii) in the absence of such a notice, a period
determined by the committee.
".
page 52
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Gas industry ombudsman scheme Division 6
s. 32
Division 6 -- Gas industry ombudsman scheme
32. Part 2D inserted
After Part 2C the following Part is inserted --
"
5 Part 2D -- Gas industry ombudsman scheme
Division 1 -- Preliminary
11ZPX. Definitions
In this Part and in Schedule 2B, unless the contrary
intention appears --
10 "approved scheme" means a scheme approved under
section 11ZPZ;
"customer" means --
(a) a small use customer; and
(b) if a dispute or complaint is prescribed for the
15 purposes of section 11ZPZ(1)(d) a person
who is involved in that dispute or complaint
as a customer;
"customer contract" means --
(a) a standard form contract; or
20 (b) a non-standard contract,
within the meaning in section 11WB;
"gas industry ombudsman" has the meaning given by
section 11ZPZ(1);
"gas marketing agent" has the meaning given by the
25 definition of that term in section 11ZPL.
page 53
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 6 Gas industry ombudsman scheme
s. 32
11ZPY. Regulations as to gas industry ombudsman scheme
The regulations may provide for and in relation to --
(a) the establishment and operation of a scheme of
the kind referred to in section 11ZPZ; and
5 (b) the functions of the gas industry ombudsman
under such a scheme.
Division 2 -- Approval of gas industry
ombudsman scheme
11ZPZ. Authority may approve scheme
10 (1) The Authority may, by instrument in writing, approve a
scheme that provides for a person (the "gas industry
ombudsman") to investigate and deal with --
(a) disputes and complaints under customer
contracts;
15 (b) disputes between --
(i) customers and licensees; or
(ii) customers and gas marketing agents;
(c) complaints by customers about --
(i) licensees; or
20 (ii) gas marketing agents;
and
(d) any other kind of dispute or complaint (whether
or not under a customer contract) that is
prescribed by the regulations.
25 (2) A scheme may treat a failure to make a decision within
a specified period as a decision of a particular kind.
(3) A scheme may be made applicable to a dispute or
complaint that arose before the commencement of the
scheme, but not earlier than 12 months before that
30 commencement.
page 54
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Gas industry ombudsman scheme Division 6
s. 32
(4) The Authority may, by instrument in writing, approve
an amendment to an approved scheme.
(5) Notice of an approval under subsection (1) is to be
published in the Gazette.
5 (6) This section has effect subject to section 57 of the
Energy Legislation Amendment Act 2003.
11ZQ. Requirements for scheme to be approved etc.
The Authority may approve a scheme, or an
amendment to an approved scheme, only if it is
10 satisfied that the scheme, or the scheme as amended,
meets --
(a) the objectives set out in Schedule 2B; and
(b) any other prescribed objective.
11ZQA. Revocation of approval
15 (1) Subject to subsection (2), the Authority may, by
instrument in writing, revoke the status of a scheme as
an approved scheme if it is satisfied that the scheme no
longer meets the objectives referred to in section 11ZQ.
(2) In exercising the power of revocation the Authority
20 must --
(a) follow any prescribed procedure; and
(b) comply with any other prescribed requirements.
(3) A copy of an instrument under subsection (1) is to be
laid before each House of Parliament within 14 sitting
25 days of that House after the day on which the
revocation took effect.
page 55
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 6 Gas industry ombudsman scheme
s. 32
Division 3 -- Scheme operation
11ZQB. Customer may have decision or complaint reviewed
(1) A customer may apply to the gas industry ombudsman
under an approved scheme for a review of a decision or
5 complaint to which the scheme relates.
(2) Where an application is so made the gas industry
ombudsman may, in respect of the decision or
complaint --
(a) make any order or determination;
10 (b) give any direction; or
(c) decline to deal with a matter on any ground,
that is provided for by the scheme.
11ZQC. Jurisdiction of courts
(1) Nothing in this Part or in an approved scheme affects
15 the jurisdiction of a court.
(2) The gas industry ombudsman must decline to deal with
a matter if --
(a) it has been or is being dealt with by a court; or
(b) in his or her opinion the matter should be dealt
20 with by a court.
(3) In this section --
"court" includes a Small Claims Tribunal established
under the Small Claims Tribunals Act 1974.
11ZQD. Enforcement against marketing agents and others
25 (1) The regulations may make it an offence for a gas
marketing agent to fail to comply with a decision or
direction of the gas industry ombudsman under an
approved scheme.
page 56
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Gas industry ombudsman scheme Division 6
s. 32
(2) If a dispute or complaint involving a person other than
a licensee or a gas marketing agent is prescribed for the
purposes of section 11ZPZ(1)(d), the regulations may
make it an offence for the person to fail to comply with
5 a decision or direction of the gas industry ombudsman
under an approved scheme.
(3) Regulations made for the purposes of this section may
provide for penalties for an offence against the
regulations not exceeding --
10 (a) $2 000 for an individual; and
(b) $8 000 for a body corporate.
11ZQE. Authority to monitor compliance with decisions
It is a function of the Authority to monitor and enforce
compliance with decisions and directions of the gas
15 industry ombudsman under an approved scheme.
Division 4 -- Membership of approved scheme by
licensee
11ZQF. Proof of membership in applications relating to
licence
20 (1) An applicant for the grant of a licence must produce
with the application evidence showing that the
applicant will, if a licence is granted, be a member of
an approved scheme.
(2) An applicant for the renewal of a licence must produce
25 with the application evidence showing that the
applicant will, if the licence is renewed, continue to be
a member of an approved scheme.
(3) Where an application is made under section 11R for the
transfer of a licence to be approved, the proposed
30 transferee must produce with the application evidence
showing that the proposed transferee will, if the
page 57
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 6 Gas industry ombudsman scheme
s. 33
transfer is approved, be a member of an approved
scheme.
11ZQG. Prerequisite to grant etc. of licence
Despite section 11S, the Authority is not to grant or
5 renew, or approve a transfer of, a licence unless it is
satisfied that the licensee, or the proposed transferee --
(a) is a member of an approved scheme; or
(b) will, if the licence is granted or the transfer is
approved, be a member of an approved scheme.
10 11ZQH. Licence condition
It is a condition of a licence that the licensee --
(a) is a member of an approved scheme; and
(b) is bound by, and will comply with any decision
or direction of the gas industry ombudsman
15 under, the scheme.
".
33. Schedule 2B inserted
After Schedule 2A the following Schedule is inserted --
"
20 Schedule 2B -- Objectives to be met by gas industry
ombudsman scheme
[s. 11ZQ]
Objectives stated
The objectives referred to in section 11ZQ are that --
25 (a) all licensees who are required to be members of the
scheme --
(i) are members of the scheme;
page 58
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Gas industry ombudsman scheme Division 6
s. 33
(ii) have agreed to be bound by decisions and
directions of the gas industry ombudsman
under the scheme; and
(iii) as members, are so bound;
5 (b) the scheme will be appropriately funded by the
licensees who are required to be members;
(c) the scheme has satisfactory arrangements in place to
deal with all disputes and complaints referred to in
section 11ZPZ(1);
10 (d) the gas industry ombudsman will be able to operate
independently of all licensees in performing his or
her functions under the scheme;
(e) the scheme will be accessible to customers;
(f) membership of the scheme will --
15 (i) be accessible to all potential members; and
(ii) provide appropriate representation for all
members on the governing body of the
scheme;
(g) without limiting any other application of the
20 scheme, the scheme will apply to all disputes and
complaints referred to in section 11ZPZ(1);
(h) the scheme will operate expeditiously and without
cost to customers;
(i) the scheme will satisfy best practice benchmarks for
25 schemes of a similar kind, both in terms of its
constitution and procedure and in terms of its day to
day operations;
(j) the scheme will provide for a monetary limit on
claims covered by the scheme of an amount or
30 amounts approved by the Authority;
(k) the scheme will maintain the capacity of the gas
industry ombudsman, where appropriate, to refer
disputes or complaints to other forums; and
page 59
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 6 Gas industry ombudsman scheme
s. 34
(l) the scheme will require the gas industry
ombudsman to inform the Authority of substantial
breaches of --
(i) any licence condition; or
5 (ii) the code of conduct under Part 2C,
of which the ombudsman becomes aware.
".
34. Parliamentary Commissioner Act 1971 amended
(1) The amendment in this section is to the Parliamentary
10 Commissioner Act 1971*.
[* Reprinted as at 16 March 2001.]
(2) After section 33 the following section is inserted --
"
34. Gas industry ombudsman scheme
15 (1) The Parliamentary Commissioner may enter into an
agreement with the governing body of the gas industry
ombudsman scheme under which --
(a) the person for the time being holding or acting
in the office of Parliamentary Commissioner is
20 to serve as the gas industry ombudsman under
the scheme; and
(b) officers referred to in section 9 are to assist him
or her in doing so.
(2) The persons referred to in subsection (1)(a) and (b)
25 may provide services in accordance with the
agreement.
(3) Section 5(9) does not apply to the rendering of services
under the agreement.
(4) The services are to be paid for by the governing body
30 of the gas industry ombudsman scheme at a rate to be
provided for in the agreement.
page 60
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Recovery of costs Division 7
s. 35
(5) For the purposes of this Act, the rendering of services
under the agreement is not to be regarded --
(a) as the exercise or performance of powers,
functions or duties under this Act; or
5 (b) as attracting the operation of section 27 or 32.
(6) Despite subsection (5), section 30(1), (2) and (3) apply
for the purpose of this section in the same way as they
apply in respect of the other functions of the
Commissioner.
10 (7) In this section --
"governing body of the gas industry ombudsman
scheme" means the entity responsible for the
operation of a scheme approved under
section 11ZPZ of the Energy Coordination
15 Act 1994.
".
Division 7 -- Recovery of costs
35. Section 11Q amended
(1) After section 11Q(2) the following subsections are inserted --
20 "
(2a) Without limiting section 45A of the Interpretation
Act 1984, the fee prescribed under subsection (1) may
be determined so as to allow the recovery by the State
of retail competition implementation costs.
25 (2b) The operation of subsection (2a) extends to retail
competition implementation costs that were incurred
before the commencement of section 35 of the Energy
Legislation Amendment Act 2003.
".
page 61
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 7 Recovery of costs
s. 36
(2) After section 11Q(3) the following subsection is inserted --
"
(4) In this section --
"retail competition implementation costs" means --
5 (a) costs incurred for the purpose of developing
and implementing policies intended to bring
about a competitive retail gas market; and
(b) costs incurred for any other prescribed
purpose, being a purpose ancillary to the
10 purpose mentioned in paragraph (a).
".
36. Part 2A Division 4C inserted
Before Part 2A Division 5 the following Division is inserted --
"
15 Division 4C -- Recovery of costs
11WR. Regulations may authorise recovery of costs
(1) The regulations may make provision --
(a) for and in relation to the fixing of prices, fees
and charges by the holder of a distribution
20 licence to reflect costs to which this section
applies; and
(b) authorising the holder of a distribution licence
to recover those prices, fees and charges from
the holders of trading licences or any class of
25 such holders.
(2) Regulations made under subsection (1) may apply to
costs to which this section applies that were incurred
before the commencement of section 36 of the Energy
Legislation Amendment Act 2003.
30 (3) This section applies to costs prescribed by the
regulations, being costs of and incidental to the
page 62
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Last resort supply Division 8
s. 37
development, acquisition and implementation by the
holder of a distribution licence of the information
technology systems, including computer software,
required for the facilitation of competition in the retail
5 gas market.
".
Division 8 -- Last resort supply
37. Part 2A Division 6A inserted
After section 11ZA the following Division is inserted --
10 "
Division 6A -- Last resort supply arrangements
11ZAA. Definition
In this Division, unless the contrary intention
appears --
15 "last resort supply plan" means a plan that meets the
requirements of section 11ZAC;
"supplier of last resort" has the meaning given by
section 11ZAC(1);
"supply area" includes a part of a supply area.
20 11ZAB. Authority to ensure supply plan in place
The Authority is to ensure that, for each supply area in
which there are small use customers, there is at all
times a last resort supply plan that has been approved
or determined by the Authority under section 11ZAG.
25 11ZAC. Requirements for last resort supply plan
(1) A last resort supply plan for a supply area is one that
deals with the supply of gas to small use customers in
the area by the holder of a trading licence (a "supplier
page 63
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 8 Last resort supply
s. 37
of last resort") if the plan comes into operation under
section 11ZAD.
(2) A last resort supply plan must set out the arrangements,
and make the provisions, that are necessary for the
5 supply of gas as mentioned in subsection (1).
(3) A last resort supply plan must --
(a) make provision for any matter or circumstance
that is prescribed; and
(b) otherwise comply with the regulations.
10 (4) A last resort supply plan is of no effect to the extent
that it is inconsistent with --
(a) this Act or another written law; or
(b) an access arrangement under the Gas Pipelines
Access (Western Australia) Law.
15 11ZAD. How plan brought into operation
(1) The Authority may, by order published in the Gazette,
determine that a last resort supply plan for a supply
area comes into operation on a day specified in the
order.
20 (2) An order may be made under subsection (1) only if the
licence of the supplier to whose small use customers
the plan applies --
(a) has been cancelled under section 11ZE;
(b) has expired and has not been renewed; or
25 (c) has been surrendered.
(3) An order under subsection (1) in respect of a last resort
supply plan is to specify the name of the supplier to
whose small use customers the plan applies.
page 64
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Last resort supply Division 8
s. 37
11ZAE. Designation of licensee as supplier of last resort
(1) The Authority may, by notice in writing to the holder
of a trading licence for a supply area --
(a) designate the holder as the supplier of last
5 resort for that area; or
(b) cancel a designation so made.
(2) The Authority is to consult with the licensee before a
notice is given under subsection (1).
(3) A designation of a licensee cannot be expressed to have
10 effect for more than 2 years, but on the expiry of a
designation the licensee may be re-designated, whether
once or more than once.
11ZAF. Functions of supplier of last resort
The functions of a supplier of last resort for a supply
15 area are --
(a) to prepare a draft last resort supply plan for that
area and submit it to the Authority within
3 months after the supplier is designated or
within such longer period as the Authority may
20 allow;
(b) to consult with the Authority with a view to
obtaining approval of the draft plan; and
(c) to carry out the arrangements and other
provisions in the last resort supply plan
25 approved or determined by the Authority under
section 11ZAG, if the plan comes into
operation under section 11ZAD.
11ZAG. Approval or determination of plan
(1) The Authority may --
30 (a) approve a draft last resort supply plan
submitted under section 11ZAF; or
page 65
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 8 Last resort supply
s. 37
(b) request that it be amended and approve it in an
amended form.
(2) If a plan has not been approved by the Authority within
a period that it considers reasonable and notifies to the
5 supplier concerned, the Authority may determine the
contents of the last resort supply plan.
11ZAH. Amendment of plan by supplier
(1) With the approval of the Authority, the supplier of last
resort for a supply area may amend the last resort
10 supply plan for that area.
(2) The supplier of last resort must submit any proposed
amendment to the Authority for approval.
(3) If an amendment is so submitted the Authority may --
(a) approve it;
15 (b) request that it be changed and approve it in a
changed form; or
(c) refuse to approve it.
11ZAI. Authority may make amendment
The Authority may at any time, after consultation with
20 the supplier of last resort for a supply area, amend the
last resort supply plan for that area.
11ZAJ. Licence condition
It is a condition of every trading licence that applies in
a supply area that --
25 (a) if the licensee is designated under
section 11ZAE; and
(b) so long as the designation remains in force,
the licensee will perform the functions of the supplier
of last resort for that area, and in particular will carry
page 66
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Last resort supply Division 8
s. 37
out the arrangements and provisions in the last resort
supply plan if it comes into operation under
section 11ZAD.
11ZAK. Provision may be made by regulation
5 The regulations may make provision for and in relation
to --
(a) the preparation and approval process for a last
resort supply plan under sections 11ZAF and
11ZAG, and the amendment of a plan;
10 (b) last resort supply arrangements under a plan,
including for and in relation to --
(i) the commencement of arrangements;
(ii) notification to small use customers and
other affected persons of matters
15 relating to the arrangements,
including --
(I) the commencement of
arrangements;
(II) the effect of the arrangements
20 and steps that will or may be
taken; and
(III) rights, powers, duties and
procedures that apply under the
arrangements;
25 (iii) the identification of the small use
customers affected by the
commencement of arrangements and the
provision of identifying information to
the supplier of last resort;
30 (iv) the transfer of small use customers to
the supplier of last resort and the nature
of the relationship between them;
page 67
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 8 Last resort supply
s. 38
(v) the terms and conditions of supply of
gas under the arrangements, including
those relating to pricing and the
imposition of charges;
5 (vi) the recovery of costs by the supplier of
last resort;
(vii) the duration and cessation of any
obligation to supply gas under the
arrangements; and
10 (viii) other rights, powers and duties of --
(I) the Authority;
(II) the supplier of last resort;
(III) small use customers; and
(IV) other persons,
15 in connection with the carrying out of
the arrangements or the operation of a
last resort supply plan.
".
38. Section 11ZE amended
20 Section 11ZE(4)(a) is amended by inserting after
"cancellation" --
"
, except where a last resort supply plan under
Part 2A Division 6A applies
25 ".
page 68
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Regulation of use of heating value of gas for charging Division 9
purposes
s. 39
Division 9 -- Regulation of use of heating value of gas for
charging purposes
39. Section 26 amended
After section 26(5) the following subsection is inserted --
5 "
(6) Without limiting subsection (1), regulations may
require a person --
(a) who transports gas through a distribution
system; or
10 (b) who sells gas that is transported through a
distribution system,
when the person uses the heating value of the gas for
the purpose of determining charges, to use the heating
value of the gas as determined under the Gas Standards
15 Act 1972.
".
Division 10 -- Regulation of supply where gas from different
sources enters a distribution system
40. The Act amended
20 The amendment in this Division is to the Gas Standards
Act 1972*.
[* Reprinted as at 7 July 2000.]
page 69
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 10 Regulation of supply where gas from different sources enters a
distribution system
s. 41
41. Section 16 inserted
After section 15 the following section is inserted --
"
16. Regulations for the commingling of gas in
5 distribution systems
Regulations may be made under section 15 --
(a) providing for and in relation to the entry and
commingling of gas of different qualities in a
distribution system (as defined in section 3 of
10 the Energy Coordination Act 1994),
including --
(i) control of the entry;
(ii) the standard of the heating value of the
gas;
15 (iii) the maintenance of the required
standard;
(iv) the monitoring of compliance with the
required standard, including
requirements for reporting matters to the
20 Director; and
(v) the determination of the heating value of
the gas;
and
(b) without limiting paragraph (a), requiring an
25 undertaker or a pipeline operator --
(i) to set up, install and operate any plan,
system or equipment; or
(ii) to take any other steps,
for any purpose referred to in that paragraph.
30 ".
page 70
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Transitional provisions for this Part Division 11
s. 42
Division 11 -- Transitional provisions for this Part
Subdivision 1 -- Preliminary
42. Definitions for this Division
In this Division --
5 "Minister" means the Minister responsible for the
administration of the principal Act;
"principal Act" means the Energy Coordination Act 1994.
Subdivision 2 -- Retail market schemes
43. Definitions
10 Expressions used in section 44 have the same meanings as they
have in Part 2B ("Part 2B") to be inserted in the principal Act
by section 15.
44. Approval of retail market schemes before commencement of
section 15
15 (1) The purpose of this section is to enable a retail market scheme
for a distribution system to come into force when section 15
commences, so that section 11ZOR of the principal Act, to be
inserted by section 15, may be complied with as from that
commencement.
20 (2) At any time after the commencement of this section, a proposed
retail market scheme for a distribution system may be submitted
to the Minister for approval.
(3) A proposed scheme for a distribution system is to be submitted
on behalf of persons who expect to be gas market participants in
25 relation to the system on and after the commencement of
section 15.
page 71
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 11 Transitional provisions for this Part
s. 45
(4) If a proposed scheme is so submitted, the following provisions
of Part 2B apply for the purposes of this section, with all
necessary changes, as if they had come into operation --
(a) section 11ZOI(2), (3) and (4); and
5 (b) sections 11ZOJ, 11ZON and 11ZOP.
(5) A request by the Minister for an amendment to a proposed
scheme under section 11ZOJ(1)(b) or (2)(b), as applied by
subsection (4), may be in terms that the set of retail market rules
submitted for approval be replaced by a set of retail market rules
10 specified by the Minister.
(6) If a retail market scheme submitted under this section is
approved by the Minister it comes into force on the
commencement of section 15.
(7) Nothing in this section is to be read as making section 11ZPD in
15 Part 2B applicable to a refusal by the Minister to approve a
proposed retail market scheme submitted under subsection (2).
45. Regulations for retail gas market
(1) The Governor may, on the recommendation of the Minister,
make regulations for the purposes of section 11ZPI in Part 2B
20 that are to have effect on the commencement of section 15.
(2) The Minister may under subsection (1) recommend the making
of regulations for a distribution system only if the Minister
considers that --
(a) there has been a failure to submit a retail market
25 scheme, or an amended retail market scheme, for that
distribution system that the Minister could approve in
accordance with sections 11ZOJ, 11ZON and 11ZOP as
applied by section 44(4); and
(b) the failure has continued for a period that has caused an
30 unacceptable delay to the commencement of section 15.
page 72
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Transitional provisions for this Part Division 11
s. 46
(3) A recommendation made by the Minister under subsection (1) is
not liable to be challenged, reviewed or called in question in any
court.
46. Regulations for transitional matters
5 (1) For the purpose described in section 44(1) the Governor may
make regulations of the kind contemplated by
sections 11ZOD(1)(b), 11ZOH, 11ZOI(4)(b), 11ZON(b) and
11ZOP in Part 2B to have effect pending the commencement
of section 15.
10 (2) If there is insufficient provision in this Subdivision --
(a) to achieve the purpose described in section 44(1); or
(b) in respect of any matter incidental to that purpose,
the Governor may make the necessary provision by regulations.
(3) If in the opinion of the Minister an anomaly arises in the
15 carrying out of any provision of --
(a) this Subdivision; or
(b) Part 2B as applied by section 44,
the Governor may by regulations make such provision for the
purposes of this Division as is necessary --
20 (c) to remove the anomaly; and
(d) to achieve the purpose described in section 44(1).
Subdivision 3 -- Gas supply contracts
47. Definition
Expressions used in this Subdivision have the same meanings as
25 they have in Part 2A Division 4A ("Division 4A") to be
inserted in the principal Act by section 28.
page 73
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 11 Transitional provisions for this Part
s. 48
48. Approval of standard form contract
(1) As soon as is practicable after the commencement of section 28,
the holder of a trading licence is to submit to the Authority for
its approval a draft of the standard form contract under which
5 the licensee wishes to supply gas to small use customers.
(2) Section 11WF of the principal Act inserted by section 28
applies for the purpose of subsection (1) as if the draft were
submitted under section 11WD so inserted.
(3) To allow time for subsections (1) and (2) to be complied with,
10 the condition provided for by section 11WG(1)(a) of the
principal Act inserted by section 28 does not apply to the
licence of a licensee until the expiry of --
(a) 2 months after the commencement of section 28; or
(b) such longer period as the Authority may, on application
15 made by the licensee, from time to time allow by
instrument in writing.
49. Existing contracts
On and after the expiry of the period allowed under
section 48(3) --
20 (a) a provision of a trading licence by which a form of
contract for the supply of gas is determined or approved
ceases to have effect; and
(b) the arrangements for the supply of gas to small use
customers that immediately before that expiry were
25 governed by a contract in the form mentioned in
paragraph (a) become, by virtue of this section,
arrangements for the supply of gas that are governed by
the standard form of contract approved pursuant to
section 48.
page 74
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Transitional provisions for this Part Division 11
s. 50
50. Non-standard contracts
(1) Despite section 11WG(1) of the principal Act inserted by
section 28, a licensee may supply gas to a small use customer
after the commencement of section 28 under a non-standard
5 contract that is --
(a) in force immediately before that commencement; and
(b) does not comply with the principal Act,
until the contract is terminated.
(2) In this section --
10 "non-standard contract" means a contract for the supply of
gas that is not a contract in the form mentioned in
section 49(a).
51. Regulations for transitional matters
(1) If there is insufficient provision in this Subdivision in respect of
15 the transition to the gas supply arrangements provided for by
Division 4A the Governor may make the necessary provision by
regulations.
(2) If in the opinion of the Minister an anomaly arises in the
carrying out of any provision of this Division, the Governor
20 may by regulations make such provision for the purposes of this
Division as is necessary --
(a) to remove the anomaly; and
(b) make appropriate provision in respect of the transition
mentioned in subsection (1).
25 Subdivision 4 -- Initial marketing code of conduct
52. Definition
Expressions used in section 53 have the same meanings as they
have in Part 2C ("Part 2C") to be inserted in the principal Act
by section 31.
page 75
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 11 Transitional provisions for this Part
s. 53
53. Approval of initial marketing code of conduct
(1) The initial code of conduct under section 11ZPM of the
principal Act inserted by section 31 is to be approved by the
Minister instead of by the Authority.
5 (2) The Minister is to act under subsection (1) in consultation with
the committee.
(3) The provisions of --
(a) Part 2C; and
(b) section 25 of the Interpretation Act 1984 in its
10 application to that Part,
are modified so far as is necessary to enable effect to be given to
subsections (1) and (2).
(4) The code of conduct approved in accordance with this section is
to be taken, for the purposes of Part 2C, to be a code of conduct
15 approved by the Authority under that Part.
54. Appointment of initial committee
(1) The Minister instead of the Authority is to --
(a) prescribe the initial membership, constitution and
procedures; and
20 (b) appoint the initial members,
of the committee, and may make the initial determinations
under section 11ZPO(3) of the principal Act.
(2) The provisions of --
(a) section 11ZPO of the principal Act; and
25 (b) section 25 of the Interpretation Act 1984 in its
application to that section,
are modified so far as is necessary to enable effect to be given to
subsection (1).
page 76
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Transitional provisions for this Part Division 11
s. 55
(3) The committee established in accordance with this section is to
be taken, for the purposes of section 11ZPO of the principal Act
to be the committee established by the Authority under that
section.
5 55. Regulations for transitional matters
If in the opinion of the Minister an anomaly arises in --
(a) the carrying out of section 53 or 54; or
(b) the operation of Part 2C in accordance with section 25
of the Interpretation Act 1984,
10 the Governor may by regulations make such provision as is
necessary --
(c) to remove the anomaly; and
(d) to achieve the purpose of section 53(1) or 54(1).
Subdivision 5 -- Initial gas industry ombudsman scheme
15 56. Definition
In section 57 --
"Authority" has the same meaning as it has in Part 2D
("Part 2D") to be inserted in the principal Act by
section 32.
20 57. Approval of initial gas industry ombudsman scheme
(1) The Minister instead of the Authority is to --
(a) approve the initial gas industry ombudsman scheme
under sections 11ZPZ and 11ZQ of the principal Act
inserted by section 32; and
25 (b) give the initial approval required for the purposes of
Schedule 2B paragraph (j) of the principal Act inserted
by section 33.
(2) The provisions of --
(a) Part 2D Division 2;
page 77
Energy Legislation Amendment Bill 2003
Part 3 Amendments to facilitate a contestable retail gas market, and
related transitional provisions
Division 11 Transitional provisions for this Part
s. 58
(b) Schedule 2B inserted by section 33; and
(c) section 25 of the Interpretation Act 1984 in its
application to the provisions mentioned in
paragraphs (a) and (b),
5 are modified so far as is necessary to enable effect to be given to
subsection (1).
(3) A scheme approved in accordance with this section is to be
taken, for the purposes of Part 2D, to be a scheme approved by
the Authority under Division 2 of that Part.
10 58. Regulations for transitional matters
If in the opinion of the Minister an anomaly arises in --
(a) the carrying out of section 57; or
(b) the operation of Part 2D Division 2 in accordance with
section 25 of the Interpretation Act 1984,
15 the Governor may by regulations make such provision as is
necessary --
(c) to remove the anomaly; and
(d) to achieve the purpose of section 57.
Subdivision 6 -- Initial last resort supply plan
20 59. Definition
Expressions used in this Subdivision have the same meanings as
they have in Part 2A Division 6A ("Division 6A") inserted in
the principal Act by section 37.
60. Initial last resort supply plan
25 (1) The Division 6A provisions do not apply to --
(a) the designation of the initial supplier of last resort; and
(b) the preparation and approval of the initial last resort
supply plan,
for the purposes of that Division.
page 78
Energy Legislation Amendment Bill 2003
Amendments to facilitate a contestable retail gas market, and Part 3
related transitional provisions
Transitional provisions for this Part Division 11
s. 61
(2) The supplier of last resort and the last resort supply plan
referred to in subsection (1) are to be determined by the
Authority in such manner as the Authority thinks fit, and the
supplier and the plan so determined are to be taken to have been
5 respectively designated and approved under Division 6A.
(3) The initial last resort supply plan is to be determined under
subsection (2) after consultation with the initial supplier of last
resort.
(4) To allow time for the completion of the initial last resort supply
10 plan under Division 6A, the obligation imposed on the
Authority by section 11ZAB inserted in the principal Act by
section 37 --
(a) does not arise on the commencement of section 37; but
(b) arises instead on a later day fixed by the Minister by
15 order published in the Gazette, and has effect on and
after that day.
(5) In subsection (1) --
"Division 6A provisions" means --
(a) sections 11ZAE(1)(a), 11ZAF(a) and (b) and 11ZAG
20 inserted in the principal Act by section 37; and
(b) regulations of the kind mentioned in
section 11ZAK(a) as so inserted.
61. Regulations for transitional matters
If in the opinion of the Minister an anomaly arises in connection
25 with the determination of the supplier of last resort or the last
resort supply plan referred to in section 60, the Governor may
by regulations make such provision as is necessary to remove
the anomaly.
page 79
Energy Legislation Amendment Bill 2003
Part 4 Amendments to enable grant of exclusive licences for gas
supply
s. 62
Part 4 -- Amendments to enable grant of exclusive
licences for gas supply
62. The Act amended
The amendments in this Part are to the Energy Coordination
5 Act 1994*.
[* Reprinted as at 5 May 2000.
For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 119, see
also Economic Regulation Authority Bill 2002 currently before
10 Parliament.]
63. Section 11N amended
Section 11N(1) is amended by deleting "The" and inserting
instead --
" Subject to regulations made under section 11WM, the ".
15 64. Part 2A Division 4B inserted
After Part 2A Division 4 the following Division is inserted --
"
Division 4B -- Exclusive licences
11WM. Regulations may authorise an exclusive licence
20 (1) The Governor may, on the recommendation of the
Minister, make regulations designating --
(a) one or more supply areas; or
(b) any part of a supply area,
as an area in respect of which an exclusive licence may
25 be granted for a specified period.
(2) The specified period (the "period of exclusivity") is
not to exceed 10 years.
page 80
Energy Legislation Amendment Bill 2003
Amendments to enable grant of exclusive licences for gas Part 4
supply
s. 64
11WN. Requirements for regulations
(1) The Minister may, under section 11WM, recommend
the making of regulations in respect of a distribution
licence or a trading licence only if he or she considers
5 that --
(a) without the grant of an exclusive licence of that
kind in respect of the area during the period of
exclusivity there will be no supply of gas
through a distribution system, or a limited
10 supply, in the area during that period;
(b) it is not contrary to the public interest that an
exclusive licence of that kind have effect in
respect of the area during the period of
exclusivity; and
15 (c) the regulations will provide for an open and
competitive tender process to be carried out to
determine the person to whom the licence is to
be granted.
(2) Regulations made under section 11WM --
20 (a) are to set out the requirements to be observed,
in addition to the other provisions of this Part,
before an exclusive licence may be granted; and
(b) may provide for the terms and conditions of an
exclusive licence in addition to those otherwise
25 provided for by this Part.
11WO. Application for and grant of licence
(1) An application for an exclusive licence may only be
made if the Minister has determined that he or she is
satisfied that all of the requirements of the regulations
30 to be observed before such an application may be made
have been complied with.
(2) Despite section 11S, an exclusive licence may only be
granted by the Authority under that section if the
page 81
Energy Legislation Amendment Bill 2003
Part 4 Amendments to enable grant of exclusive licences for gas
supply
s. 64
Minister has determined that he or she is satisfied that
all of the requirements of the regulations relevant to the
grant of the licence have been observed.
(3) A determination under subsection (1) or (2) is to be
5 made by instrument published in the Gazette.
11WP. Prohibition of further licences
If --
(a) an exclusive licence is granted in respect of an
area in accordance with regulations made under
10 section 11WM; and
(b) the licence is not cancelled under section 11ZE
or surrendered,
no other person is to be granted a licence of the same
kind to have effect in respect of that area during the
15 period of exclusivity.
11WQ. Trade practices exemption
For the purposes of the Trade Practices Act 1974 of the
Commonwealth and the Competition Code --
(a) the grant of an exclusive licence as provided by
20 regulations made under section 11WM; and
(b) conduct authorised or required by or under any
such licence,
are specifically authorised to the extent that the grant or
conduct would otherwise contravene that Act and that
25 Code.
".
page 82
Energy Legislation Amendment Bill 2003
Amendments relating to the provision of information to the Part 5
Coordinator of Energy
s. 65
Part 5 -- Amendments relating to the provision of
information to the Coordinator of Energy
65. The Act amended
The amendments in this Part are to the Energy Coordination
5 Act 1994*.
[* Reprinted as at 5 May 2000.
For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 119, see
also Economic Regulation Authority Bill 2002 currently before
10 Parliament.]
66. Section 3 amended
Section 3 is amended by inserting after the definition of "supply
area" the following definition --
"
15 "trade secret" means any knowledge or
information --
(a) relating to technology, marketing, energy, or
energy resources or reserves; or
(b) as to the business of the person concerned,
20 the disclosure of which by a person performing
functions under this Act might reasonably be
expected to adversely affect the business or
interests of the person concerned;
".
page 83
Energy Legislation Amendment Bill 2003
Part 5 Amendments relating to the provision of information to the
Coordinator of Energy
s. 67
67. Section 20A inserted
Before section 21 the following section is inserted in Part 4 --
"
20A. Definition
5 In this Part, unless the contrary intention appears --
"energy" means any form of energy, including --
(a) electricity; and
(b) solid, liquid and gaseous fuel.
".
10 68. Section 21 amended
Section 21(4) is repealed.
69. Section 22 replaced
Section 22 is repealed and the following section is inserted
instead --
15 "
22. Trade secrets
(1) A person may, when giving information in compliance
with a request under section 21, notify the Coordinator
that any particular item of information is a trade secret.
20 (2) The giving of such a notice does not exempt the person
from complying with the request, but it has the effect
that the information may only be disclosed in
accordance with section 24AA(1)(c) or (d).
".
page 84
Energy Legislation Amendment Bill 2003
Amendments relating to the provision of information to the Part 5
Coordinator of Energy
s. 70
70. Section 23 amended
(1) Section 23(1) is repealed and the following subsection is
inserted instead --
"
5 (1) A person must not, without reasonable excuse, fail to
comply with a request under section 21.
Penalty for an individual: $20 000.
Penalty for a body corporate: $100 000.
".
10 (2) Section 23(2) is amended by deleting the penalty provisions and
inserting the following penalty provisions instead --
"
Penalty for an individual: $20 000.
Penalty for a body corporate: $100 000.
15 ".
71. Section 24 amended
(1) Section 24(1) is amended by inserting after "this Act" (where it
first appears) --
" (a "relevant official") ".
20 (2) Section 24(2) is amended by deleting "Subsection (1) does" and
inserting instead --
" Subsection (1) and section 24AA(1) do ".
page 85
Energy Legislation Amendment Bill 2003
Part 5 Amendments relating to the provision of information to the
Coordinator of Energy
s. 72
72. Sections 24AA, 24AB and 24AC inserted
(1) After section 24 the following sections are inserted --
"
24AA. Protection of trade secrets
5 (1) In addition to section 24, a relevant official must not,
directly or indirectly, disclose information to which a
notice under section 22(1) applies --
(a) publicly; or
(b) to a person who is not a relevant official,
10 unless --
(c) the requirement in subsection (2) is complied
with; or
(d) the disclosure is authorised by section 24AB.
Penalty: $10 000 and imprisonment for 12 months.
15 (2) The requirement referred to in subsection (1)(c) is that
the information when disclosed must be combined or
aggregated with other information in such a way that
the information could not reasonably be ascertained in
isolation from the other information.
20 24AB. Disclosure of information in the public interest
(1) A relevant official may disclose information to which a
a notice under section 22 applies if --
(a) the Coordinator has --
(i) determined that disclosure of the
25 information is in the public interest; and
(ii) given written notice of that
determination to the person who gave
the notice under section 22;
and
page 86
Energy Legislation Amendment Bill 2003
Amendments relating to the provision of information to the Part 5
Coordinator of Energy
s. 72
(b) the time for making an application under
section 24AC for a review of that determination
has expired without an application being made,
or such an application has been made but has
5 been unsuccessful.
(2) For the purposes of subsection (1)(b) an application for
a review is unsuccessful if it --
(a) results in the Coordinator's determination under
subsection (1)(a)(i) being affirmed; or
10 (b) is withdrawn, discontinued or dismissed for
want of prosecution.
24AC. Review of determination
(1) If --
(a) a person has given a notice under section 22 in
15 respect of information; and
(b) the Coordinator has determined under
section 24AB(1)(a)(i) that disclosure of the
information is in the public interest,
the person may apply to the Gas Review Board for a
20 review of the determination.
(2) An application under subsection (1) must be made
within 14 days after the person received written notice
of the determination.
(3) The provisions of section 11ZH(3), (4), (5), (6), (7),
25 (10), (11) and (13) apply for the purposes of a review
under this section in the same way as they apply to a
review and proceedings under section 11ZH(2).
(4) Subsection (3) also applies to the provisions of
section 11ZH(8), (9) and (12) except that the references
30 in those subsections to the Authority are to be read as
references to the Coordinator.
page 87
Energy Legislation Amendment Bill 2003
Part 5 Amendments relating to the provision of information to the
Coordinator of Energy
s. 72
(5) In subsection (1) --
"Gas Review Board" means the Western Australian
Gas Review Board established by the Gas
Pipelines Access (Western Australia) Act 1998.
5 ".
page 88
Energy Legislation Amendment Bill 2003
Amendments relating to the transfer of certain energy research Part 6
functions to the Coordinator of Energy
Minerals and Energy Research Act 1987 Division 1
s. 73
Part 6 -- Amendments relating to the transfer
of certain energy research functions to the
Coordinator of Energy
Division 1 -- Minerals and Energy Research Act 1987
5 73. The Act amended
The amendments in this Division are to the Minerals and
Energy Research Act 1987*.
[* Reprinted as at 4 May 2001.
For subsequent amendments see Western Australian
10 Legislation Information Tables for 2002, Table 1, p. 251.]
74. Section 3 amended
Section 3 is amended as follows:
(a) in the definition of "advisory committee" --
(i) by deleting "or Energy Research Advisory
15 Committee,"; and
(ii) by deleting "18(2)" and inserting instead --
" 19 ";
(b) by deleting the definitions of "Coordinator of Energy",
"energy", "Energy Research Advisory Committee",
20 "research advisory committee", "the Mining Institute",
"the 1981 Act", "the 1977 Act" and "the Solar
Institute";
(c) by deleting the definition of "energy research" and
inserting instead --
25 "
"energy research" means research as to the location,
extraction, processing, transportation or marketing
of petroleum, coal, a naturally occurring gas or
mixture of gases or a prescribed substance and
page 89
Energy Legislation Amendment Bill 2003
Part 6 Amendments relating to the transfer of certain energy research
functions to the Coordinator of Energy
Division 1 Minerals and Energy Research Act 1987
s. 75
includes the development of any associated
process, technique, method, design or apparatus;
";
(d) in the definition of "minerals" by inserting after
5 "Earth" --
"
, but excluding any substance (other than coal,
petroleum, a naturally occurring gas or mixture of
gases or a prescribed substance) that is a source of
10 energy
";
(e) in the definition of "the Department of Mines" by
deleting "of Mines";
(f) in the definition of "the Institute" by deleting the
15 semicolon and inserting a full stop instead.
75. Section 4 amended
Section 4(3) is repealed.
76. Section 5 amended
Section 5 is amended as follows:
20 (a) by deleting "within the State" and inserting instead --
" for the benefit of the State ";
(b) by deleting "(especially solar energy research)";
(c) by deleting paragraph (h) and inserting instead --
"
25 (h) maintaining a collection of --
(i) the reports produced by the Institute;
and
(ii) the reports produced by the Mining
Institute formerly established by the
30 Mining and Petroleum Research
Act 1981;
";
page 90
Energy Legislation Amendment Bill 2003
Amendments relating to the transfer of certain energy research Part 6
functions to the Coordinator of Energy
Minerals and Energy Research Act 1987 Division 1
s. 77
(d) in paragraph (i) by deleting ", the Coordinator of
Energy".
77. Section 10 replaced
Section 10 is repealed and the following section is inserted
5 instead --
"
10. Advice of Minerals Research Advisory Committee
The Board shall have due regard to any advice given to
it by the Minerals Research Advisory Committee but is
10 not bound to --
(a) act on or give effect to such advice; or
(b) defer taking action on a matter until such
advice is received.
".
15 78. Section 12 amended
Section 12(2) is amended by deleting "and of the Coordinator of
Energy".
79. Section 16 amended
Section 16 is amended by deleting "Public Service Board." and
20 inserting instead --
" Minister for Public Sector Management. ".
80. Sections 18 and 19 replaced and saving provision
(1) Sections 18 and 19 are repealed and the following sections are
inserted instead --
25 "
18. Minerals Research Advisory Committee
(1) A Minerals Research Advisory Committee is to be
established.
page 91
Energy Legislation Amendment Bill 2003
Part 6 Amendments relating to the transfer of certain energy research
functions to the Coordinator of Energy
Division 1 Minerals and Energy Research Act 1987
s. 80
(2) The functions of that committee are --
(a) to consider and advise the Board on --
(i) research goals relevant to the minerals
and energy industries; and
5 (ii) any proposal, matter or question that
may be referred to it by the Board;
and
(b) to make recommendations to the Board
concerning --
10 (i) the funding policy of the Institute;
(ii) whether or not a particular research
project should be, or continue to be,
supported by the Institute; or
(iii) any other aspect of the activities of the
15 Institute,
with a view to ensuring that the best use is
made of the funds and resources at the disposal
of the Institute.
19. Other advisory committees
20 The Board may establish any other advisory committee
that it considers to be necessary for the purposes of this
Act and, subject to this Act, may appoint the members,
and determine the functions, of any such committee.
".
25 (2) The membership of the Minerals Research Advisory
Committee, as existing immediately before the commencement
of subsection (1), continues on the same basis after that
commencement despite the repeal and replacement of section 18
of the Minerals and Energy Research Act 1987 by that
30 subsection (1).
page 92
Energy Legislation Amendment Bill 2003
Amendments relating to the transfer of certain energy research Part 6
functions to the Coordinator of Energy
Minerals and Energy Research Act 1987 Division 1
s. 81
81. Section 20 amended
Section 20(1) is amended as follows:
(a) in paragraph (a) by deleting "The Confederation of
Western Australian Industry (Incorporated)" and
5 inserting instead --
"
the Chamber of Commerce and Industry of
Western Australia
";
10 (b) in paragraph (b) by deleting "The Chamber of Mines of
Western Australian (Incorporated)" and inserting
instead --
"
the Chamber of Minerals and Energy of
15 Western Australia Inc.
";
(c) in paragraph (c) by inserting after "Petroleum" --
" Production and ";
(d) in paragraph (h) by deleting "of Resources
20 Development".
82. Section 21 repealed
Section 21 is repealed.
83. Section 25 amended
Section 25 is amended by deleting "Public Service Board" and
25 inserting instead --
" Minister for Public Sector Management ".
84. Section 26 amended
Section 26(2)(d) is deleted.
page 93
Energy Legislation Amendment Bill 2003
Part 6 Amendments relating to the transfer of certain energy research
functions to the Coordinator of Energy
Division 1 Minerals and Energy Research Act 1987
s. 85
85. Section 31 amended
Section 31(3) is amended by deleting "Public Service Board."
and inserting instead --
" Minister for Public Sector Management. ".
5 86. Section 34 amended
Section 34(2) is amended in the penalty by deleting "$2 000"
and inserting instead --
" $20 000 ".
87. Section 35 amended
10 Section 35(6) is amended in the penalty by deleting "$20 000"
and inserting instead --
" $100 000 ".
88. Part VIII replaced
Part VIII is repealed and the following Part is inserted
15 instead --
"
Part VIII -- Savings
41. Savings for secrecy provisions
(1) Section 32 of the Solar Energy Research Act 1977 is to
20 be taken to continue in effect in respect of every person
referred to in subsection (1) of that section.
(2) Subsection (1) applies despite the repeal effected by
the proclamation under section 43 of the Solar Energy
Research Act 1977 published in the Gazette on
25 30 June 1988 at page 2135.
(3) Repealed section 32 of the Mining and Petroleum
Research Act 1981 is to be taken to continue in effect
page 94
Energy Legislation Amendment Bill 2003
Amendments relating to the transfer of certain energy research Part 6
functions to the Coordinator of Energy
Energy Coordination Act 1994 Division 2
s. 89
in respect of every person referred to in subsection (1)
of that section.
(4) Subsection (3) applies despite the repeal effected by
section 45(1) of this Act as in force immediately before
5 the commencement of section 88 of the Energy
Legislation Amendment Act 2003.
".
89. Schedules 1 and 2 repealed
Schedules 1 and 2 are repealed.
10 90. Various references to Department of Mines amended
Each of the provisions referred to in the Table to this section is
amended by deleting "of Mines".
Table
s. 5(h) and (i) s. 12(2)
s. 6(3) s. 14(1)
Division 2 -- Energy Coordination Act 1994
15 91. The Act amended
The amendments in this Division are to the Energy
Coordination Act 1994*.
[* Reprinted as at 5 May 2000.
For subsequent amendments see Western Australian
20 Legislation Information Tables for 2002, Table 1, p. 119, see
also Economic Regulation Authority Bill 2002 currently before
Parliament.]
92. Long title amended
The long title is amended by inserting after "energy supply" --
25 " and in relation to the promotion of energy research ".
page 95
Energy Legislation Amendment Bill 2003
Part 6 Amendments relating to the transfer of certain energy research
functions to the Coordinator of Energy
Division 2 Energy Coordination Act 1994
s. 93
93. Section 6 amended
(1) Section 6(e) is deleted and the following paragraph is inserted
instead --
"
5 (e) to promote energy research and development as
provided by Schedule 1;
".
(2) After section 6(g) the following paragraph is inserted --
"
10 (ga) to maintain a collection of the information and
reports referred to in paragraph (g) and the
information and reports produced by the Solar
Institute formerly established by the Solar
Energy Research Act 1977;
15 ".
94. Section 11M amended
Section 11M(2) is amended by deleting "Schedule 1" and
inserting instead --
" Schedule 1A ".
20 95. Schedule 1 inserted
After section 27 the following Schedule is inserted --
"
Schedule 1 -- Coordinator's functions in respect
of sustainable energy research
25 [s. 6(e)]
1. Definitions
In this Schedule --
"energy research" means research as to energy derived
from a source that can be utilised sustainably and
page 96
Energy Legislation Amendment Bill 2003
Amendments relating to the transfer of certain energy research Part 6
functions to the Coordinator of Energy
Energy Coordination Act 1994 Division 2
s. 95
includes the development of any process, technique,
method, design or apparatus --
(a) to collect, store, apply or utilise any form of
energy;
5 (b) to convert one form of energy into another form
of energy;
(c) to substitute one form of energy for any other
form of energy; or
(d)
to conserve any form of energy;
10 "researcher" means --
(a) a person to whom the Coordinator has allocated
financial assistance to enable the person to
undertake or continue a particular research
project; and
15 (b) a person who is directing, assisting or working
with such a person on that project.
2. Research functions
(1) It is a function of the Coordinator to encourage the
development of the energy industry in the State by fostering
20 and promoting energy research.
(2) For the purposes of subclause (1) the Coordinator may --
(a) undertake energy research projects, including joint
projects;
(b) receive applications from persons seeking financial
25 assistance to undertake or continue energy research
projects;
(c) allocate from moneys available for the purpose
financial assistance to enable or assist persons to
undertake or continue energy research projects;
30 (d) coordinate energy research projects undertaken by
persons --
(i) who are receiving financial assistance or
any other form of support from the
Coordinator; or
page 97
Energy Legislation Amendment Bill 2003
Part 6 Amendments relating to the transfer of certain energy research
functions to the Coordinator of Energy
Division 2 Energy Coordination Act 1994
s. 95
(ii) who seek or agree to have their research
projects coordinated by the Coordinator;
(e) enter into agreements with persons to whom the
Coordinator has allocated financial assistance with
5 respect to the terms and conditions of that
allocation;
(f) accept moneys from a person for application to
energy research, either unconditionally or subject to
any trust, condition or stipulation as to the
10 application of the moneys;
(g) monitor and evaluate --
(i) energy research projects in respect of which
the Coordinator has allocated financial
assistance; and
15 (ii) other energy research work within the State
or elsewhere.
3. Power to direct researcher
The terms and conditions referred to in clause 2(2)(e) may
include a condition that a person to whom the Coordinator
20 has allocated financial assistance must comply with any
directions or guidelines issued by the Coordinator in relation
to the conduct of the research project concerned.
4. Trusts and conditions
The Coordinator must give effect to any trust, condition or
25 stipulation that has been agreed to in exercise of the power
in clause 2(2)(f).
5. Provision of information to the Coordinator
(1) This clause applies where the Coordinator has given
financial assistance to a person under clause 2.
30 (2) The Coordinator may, by notice in writing, require the
person to provide within a specified period reports and other
information relating to --
(a) the research concerned; and
page 98
Energy Legislation Amendment Bill 2003
Amendments relating to the transfer of certain energy research Part 6
functions to the Coordinator of Energy
Energy Coordination Act 1994 Division 2
s. 95
(b) the way in which moneys have been spent.
(3) A person to whom such a notice has been given --
(a) must comply with the notice; and
(b) must not give information that he or she knows to
5 be false or misleading.
Penalty: $10 000.
6. Termination of assistance by the Coordinator
(1) This clause applies where the Coordinator is satisfied that a
person to whom financial assistance has been allocated or
10 given under clause 2 --
(a) has failed to undertake or continue the research
concerned; or
(b) is unable to complete the research,
in accordance with the terms and conditions agreed with the
15 Coordinator.
(2) The Coordinator may, by notice in writing to the person,
terminate the financial assistance and the Coordinator's
obligations under any agreement made under clause 2(2)(e).
(3) Any moneys --
20 (a) paid to the person by the Coordinator; and
(b) remaining unspent at the time when a notice is
given under this clause,
may be recovered in a court of competent jurisdiction as a
debt due to the Coordinator.
25 7. Researchers to maintain confidentiality
A researcher must not directly or indirectly --
(a) disclose to any person; or
(b) make use of,
information concerning the affairs of another person
30 acquired by him or her by reason of any research for which
page 99
Energy Legislation Amendment Bill 2003
Part 6 Amendments relating to the transfer of certain energy research
functions to the Coordinator of Energy
Division 2 Energy Coordination Act 1994
s. 95
financial assistance has been allocated under this Act,
except in good faith for the purposes of that research.
Penalty: $100 000.
8. Protection of trade secrets
5 (1) This clause applies if --
(a) a person discloses information to the Coordinator
concerning his or her affairs for the purposes of
energy research; and
(b) the person requests the Coordinator in writing that
10 the information be treated as a trade secret.
(2) Subject to subclause (4), the Coordinator, a person
performing functions under this Act, or a researcher must
not make any public disclosure of information contrary to a
request referred to in subclause (1)(b), except with the
15 consent of the person concerned.
Penalty: $100 000.
(3) Subject to subclause (4), the Coordinator and a person
performing functions under this Act must take all reasonable
steps to ensure that, except with the consent of the person
20 concerned, information about the nature, conduct, progress
or results of the research is not included in any report or
statement prepared under the Financial Administration and
Audit Act 1985 by or for the Coordinator.
Penalty: $100 000.
25 (4) Subclauses (2) and (3) do not apply to any information that
the Coordinator has, or might have, required to be provided
under clause 5.
9. Other requests for confidentiality
(1) This clause applies if --
30 (a) the Coordinator has accepted moneys from a person
for application to energy research subject to any
trust, condition or stipulation as to the application of
the moneys; and
page 100
Energy Legislation Amendment Bill 2003
Amendments relating to the transfer of certain energy research Part 6
functions to the Coordinator of Energy
Energy Coordination Act 1994 Division 2
s. 95
(b) the person requests the Coordinator in writing --
(i) not make any public disclosure of any
information concerning the nature, conduct,
progress or results of the research; or
5 (ii) that information about the nature, conduct,
progress or results of the research be not
included in any report or statement prepared
under the Financial Administration and
Audit Act 1985 by or for the Coordinator.
10 (2) The Coordinator, a person performing functions under this
Act, or a researcher must not make any public disclosure of
information contrary to a request referred to in
subclause (1)(b).
Penalty: $100 000.
15 (3) The Coordinator and a person performing functions under
this Act must take all reasonable steps to ensure that
subclause (1)(b)(ii) is not contravened.
Penalty: $100 000.
10. Records to be maintained
20 The Coordinator is to cause detailed records to be kept in
relation to research projects --
(a) undertaken by the Coordinator, or by the
Coordinator in conjunction with any other person;
or
25 (b) for which the Coordinator has allocated financial
assistance,
including records relating to moneys allocated or paid, work
undertaken, progress achieved and results obtained.
".
page 101
Energy Legislation Amendment Bill 2003
Part 6 Amendments relating to the transfer of certain energy research
functions to the Coordinator of Energy
Division 3 Transitional provisions
s. 96
96. Schedule 1 amended
The heading to Schedule 1 is amended by deleting "1" and
inserting instead --
" 1A ".
5 Division 3 -- Transitional provisions
97. Definitions
In this Division, unless the contrary intention appears --
"commencement day" means the day on which this Part, other
than this section and section 98, comes into operation;
10 "Coordinator" means the Coordinator of Energy referred to in
section 4 of the Energy Coordination Act 1994;
"Institute" means the Minerals and Energy Research Institute
of Western Australia established by section 4(1) of the
Minerals and Energy Research Act 1987;
15 "liabilities" includes future and contingent liabilities;
"Minister" means the Minister responsible for the
administration of the Energy Coordination Act 1994;
"sustainable energy research" means research as to energy
derived from a source that can be utilised sustainably and
20 includes the development of any process, technique,
method, design or apparatus --
(a) to collect, store, apply or utilise any form of energy;
(b) to convert one form of energy into another form of
energy;
25 (c) to substitute one form of energy for any other form of
energy; or
(d) to conserve any form of energy.
page 102
Energy Legislation Amendment Bill 2003
Amendments relating to the transfer of certain energy research Part 6
functions to the Coordinator of Energy
Transitional provisions Division 3
s. 98
98. Ministerial instrument
(1) The Minister, by instrument, is to determine --
(a) the assets that in the Minister's opinion relate to the
energy research functions of the Institute (the "relevant
5 assets"); and
(b) the liabilities that in the Minister's opinion relate to the
energy research functions of the Institute (the "relevant
liabilities").
(2) In subsection (1) --
10 "energy research" has the meaning given to that term in
section 3 of the Minerals and Energy Research Act 1987
immediately before the commencement day.
(3) An instrument under subsection (1) may provide for moneys in
the Account referred to in section 26(3) of the Minerals and
15 Energy Research Act 1987 to be credited --
(a) to an account --
(i) established under section 15B of the Financial
Administration and Audit Act 1985; and
(ii) administered by the Department of the Public
20 Service principally assisting the Minister in the
administration of the Energy Coordination
Act 1994;
or
(b) to the Consolidated Fund.
25 (4) A determination may be amended by the Minister by further
instrument, but no amendment may be made after the
commencement day.
(5) A determination and any amendment to it may only be made by
the Minister with the concurrence of the Minister responsible
30 for the administration of the Minerals and Energy Research
Act 1987.
page 103
Energy Legislation Amendment Bill 2003
Part 6 Amendments relating to the transfer of certain energy research
functions to the Coordinator of Energy
Division 3 Transitional provisions
s. 99
(6) A determination does not have effect to transfer any asset or
liability except by operation of section 99.
99. Transfer of assets and liabilities
(1) On the commencement day --
5 (a) the relevant assets vest in the State;
(b) the State becomes responsible for the relevant liabilities;
and
(c) the Coordinator becomes entitled to possession of all
documents and records that are held by the Institute in
10 respect of those assets and liabilities.
(2) Anything commenced before the commencement day in respect
of an asset or liability referred to in subsection (1) may be
continued by the State.
100. Responsibility for sustainable energy research matters
15 On and after the commencement day, responsibility for any
existing sustainable energy research matter, including an
application in progress, is vested in the Coordinator as if the
matter had arisen under Schedule 1 to the Energy Coordination
Act 1994.
20 101. Agreements and instruments
An agreement or instrument relating to a sustainable energy
research matter that subsists immediately before the
commencement day and --
(a) to which the Institute was a party; or
25 (b) which contains a reference to the Institute,
has effect as if --
(c) the Coordinator were substituted for the Institute as a
party; and
(d) any reference to the Institute were, unless the context
30 otherwise requires, a reference to the Coordinator.
page 104
Energy Legislation Amendment Bill 2003
Amendments and validation provision relating to Western Part 7
Power Corporation
Electricity Corporation Act 1994 Division 1
s. 102
Part 7 -- Amendments and validation provision
relating to Western Power Corporation
Division 1 -- Electricity Corporation Act 1994
102. The Act amended
5 The amendments in this Division are to the Electricity
Corporation Act 1994*.
[* Reprint 2 as at 3 January 2003.
For subsequent amendments see Act No. 21 of 2003.]
103. Section 7 amended
10 Section 7(1)(b) is amended by deleting "6" and inserting
instead --
" 8 ".
104. Section 70 amended
After section 70(2) the following subsection is inserted --
15 "
(2a) A request under subsection (2)(a) may specify a time
before which the information is to be furnished.
".
105. Section 70A inserted
20 After section 70 the following section is inserted --
"
70A. Provision of information in compiled form
(1) Subsection (2) applies if the Minister wishes to obtain
from the corporation information that --
25 (a) is not itself in the possession of the corporation
or a subsidiary; but
page 105
Energy Legislation Amendment Bill 2003
Part 7 Amendments and validation provision relating to Western
Power Corporation
Division 1 Electricity Corporation Act 1994
s. 106
(b) is capable of being assembled or compiled from
information in the possession of the corporation
or a subsidiary.
(2) The Minister may request the chief executive officer or
5 the board to furnish to the Minister a document
containing information that --
(a) is of a specified description;
(b) is presented in a specified way;
(c) relates to a specified period; or
10 (d) has some other specified characteristic,
or that comes within 2 or more of the preceding
paragraphs.
(3) A request under subsection (2) may specify a time
before which the document is to be furnished.
15 (4) The chief executive officer or the board is to comply
with a request under subsection (2) and is to take, or
cause to be taken, whatever steps are necessary in order
to do so.
(5) Section 70(1) applies to a document prepared or
20 compiled for the purposes of this section in the same
way as it applies to other information in the possession
of the corporation or a subsidiary.
(6) Section 70(4) applies where a document is furnished
under this section in the same way as it applies where
25 information is furnished under that section.
".
106. Section 73 amended
Section 73(1)(a) is amended by inserting after "70," --
" 70A, ".
page 106
Energy Legislation Amendment Bill 2003
Amendments and validation provision relating to Western Part 7
Power Corporation
Electricity Corporation Act 1994 Division 1
s. 107
107. Section 89 amended
(1) Section 89(1) is amended by deleting the definition of
"electricity distribution system" and inserting the following
definition instead --
5 "
"electricity distribution system" means --
(a) the part or parts of the system operated by
the corporation for the transportation of
electricity that is or are prescribed by the
10 regulations for the purposes of this
paragraph; and
(b) plant and equipment that is --
(i) used by the corporation --
(I) in connection with the transfer
15 of electricity to or from any part
referred to in paragraph (a); or
(II) for a purpose related to such
transfer;
and
20 (ii) prescribed, or of a kind that is
prescribed, by the regulations for the
purposes of this subparagraph;
".
(2) Section 89(1) is amended by deleting the definition of
25 "electricity transmission system" and inserting the following
definition instead --
"
"electricity transmission system" means --
(a) the part or parts of the system operated by
30 the corporation for the transportation of
electricity that is or are prescribed by the
regulations for the purposes of this
paragraph; and
page 107
Energy Legislation Amendment Bill 2003
Part 7 Amendments and validation provision relating to Western
Power Corporation
Division 1 Electricity Corporation Act 1994
s. 108
(b) plant and equipment that is --
(i) used by the corporation --
(I) in connection with the transfer
of electricity to or from any part
5 referred to in paragraph (a); or
(II) for a purpose related to such
transfer;
and
(ii) prescribed, or of a kind that is
10 prescribed, by the regulations for the
purposes of this subparagraph;
".
(3) Section 89(1) is amended by inserting after the definition of
"new generation" the following definition --
15 "
"prescribed pricing policy" means a policy or
practice of charging different prices to different
users or classes of users in different circumstances
that is --
20 (a) specified in the regulations; and
(b) prescribed for the purposes of Schedule 5
clause 2(1a) or Schedule 6 clause 2(1a);
".
108. Section 95 amended
25 Section 95(3) is amended as follows:
(a) after paragraph (b) by inserting --
"
(ba) the protection and immunities of the referee;
";
page 108
Energy Legislation Amendment Bill 2003
Amendments and validation provision relating to Western Part 7
Power Corporation
Electricity Corporation Act 1994 Division 1
s. 109
(b) by deleting paragraph (h)(ii) and inserting instead --
"
(ii) in relation to witnesses --
(I) the compulsion to attend or to
5 both attend and produce
documents; and
(II) their examination and
cross-examination on oath or
affirmation;
10 ";
(c) after paragraph (h) by inserting --
"
(ha) the protection, immunities and liabilities of
witnesses;
15 ".
109. Schedule 5 amended
(1) The amendments in this section are to Schedule 5.
(2) After clause 2(1) the following subclause is inserted --
"
20 (1a) It is not discriminatory for the corporation to make access
available under subclause (1) on the basis of a prescribed
pricing policy.
".
(3) After clause 2 the following clause is inserted --
25 "
2A. Costs of corporation in connection with application
(1) The regulations may require a person who makes an
application to the corporation seeking access as mentioned
in clause 2(1) to pay to the corporation --
30 (a) at the time of making the application; or
(b) at the time or times otherwise provided by the
regulations,
page 109
Energy Legislation Amendment Bill 2003
Part 7 Amendments and validation provision relating to Western
Power Corporation
Division 1 Electricity Corporation Act 1994
s. 110
the reasonable costs of the corporation --
(c) in dealing with the application under the
regulations; and
(d) if applicable, in negotiating the terms and
5 conditions on which access is made available.
(2) The regulations may provide for the applicant to pay an
estimated amount pending a final determination of the costs
of the corporation.
".
10 (4) Clause 4(1) is amended by deleting "prepare annually" and
inserting instead --
" , not later than the prescribed day in each year, prepare ".
(5) Clause 4(2) is repealed and the following subclauses are
inserted instead --
15 "
(2) Any existing or prospective user may request the
corporation to provide a report and forecast of firm capacity,
non-firm capacity, and spare capacity as applicable to that
user's particular requirements.
20 (3) The corporation may make a reasonable charge in respect of
the cost of complying with the request.
(4) Subject to payment of the charge referred to in subclause (3),
the corporation must comply with a request under subclause (2)
within the prescribed number of days after the request is made.
25 ".
110. Schedule 6 amended
(1) The amendments in this section are to Schedule 6.
(2) After clause 2(1) the following subclause is inserted --
"
30 (1a) It is not discriminatory for the corporation to make access
available under subclause (1) on the basis of a prescribed
pricing policy.
".
page 110
Energy Legislation Amendment Bill 2003
Amendments and validation provision relating to Western Part 7
Power Corporation
Electricity Corporation Act 1994 Division 1
s. 110
(3) After clause 2 the following clause is inserted --
"
2A. Costs of corporation in connection with application
(1) The regulations may require a person who makes an
5 application to the corporation seeking access as mentioned
in clause 2(1) to pay to the corporation --
(a) at the time of making the application; or
(b) at the time or times otherwise provided by the
regulations,
10 the reasonable costs of the corporation --
(c) in dealing with the application under the
regulations; and
(d) if applicable, in negotiating the terms and
conditions on which access is made available.
15 (2) The regulations may provide for the applicant to pay an
estimated amount pending a final determination of the costs
of the corporation.
".
(4) Clause 4 is repealed and the following clause is inserted
20 instead --
"
4. Obligation to provide information
(1) Any existing or prospective user may request the
corporation to provide a report and forecast of electricity
25 distribution capacity as applicable to that user's particular
requirements.
(2) The corporation may make a reasonable charge in respect of
the cost of complying with the request.
(3) Subject to payment of the charge referred to in
30 subclause (2), the corporation must comply with a request
under subclause (1) within the prescribed number of days
after the request is made.
".
page 111
Energy Legislation Amendment Bill 2003
Part 7 Amendments and validation provision relating to Western
Power Corporation
Division 2 Energy Operators (Powers) Act 1979
s. 111
111. Schedule 7 amended
Schedule 7 clause 2(1) is amended by deleting "prepare
annually" and inserting instead --
" , not later than the prescribed day in each year, prepare ".
5 Division 2 -- Energy Operators (Powers) Act 1979
112. The Act amended
The amendments in this Division are to the Energy Operators
(Powers) Act 1979* (the "principal Act").
[* Reprinted as at 15 September 2000.
10 For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 121.]
113. Section 58 amended
(1) Section 58(2)(a) is amended by deleting "so supplied
contributes thereto, in total or as to an agreed proportion, in
15 such sum and manner as the energy operator requires" and
inserting instead --
"
seeking to effect, maintain or continue such
supply enters into an agreement with the energy
20 operator under subsection (3) relating to the
supply
".
(2) Section 58(3) is amended by deleting "on such terms and
conditions as the energy operator thinks fit." and inserting
25 instead --
"
if the person, body or authority seeking to effect,
maintain or continue the supply enters into an
agreement with the energy operator relating to the
30 supply on such terms and conditions as the energy
page 112
Energy Legislation Amendment Bill 2003
Amendments and validation provision relating to Western Part 7
Power Corporation
Energy Operators (Powers) Act 1979 Division 2
s. 114
operator thinks fit, including without limitation a
condition that the person, body or authority is to pay to
the energy operator the cost, as determined by the
energy operator, of appropriate network development.
5 ".
(3) After section 58(3) the following subsection is inserted --
"
(3a) In subsection (3) --
"appropriate network development" means
10 extending, or increasing the capacity of, the supply
system to enable supply to be effected, maintained,
or continued in accordance with the agreement,
and it includes making those extensions or
increases in capacity in a way that accommodates
15 future demands on the supply system that the
energy operator might anticipate, whether or not
the demands of the person, body, or authority
entering into the agreement.
".
20 114. Section 61 amended
(1) Section 61(1)(b) is amended by deleting "considers will be
required in order to enable the energy operator to extend the
supply system beyond the normal point of supply in order to
effect the supply requested;" and inserting instead --
25 "
anticipates will be the cost of appropriate
network development;
".
(2) After section 61(1) the following subsection is inserted --
30 "
(1a) In subsection (1)(b) --
"appropriate network development" means
extending, or increasing the capacity of, the supply
page 113
Energy Legislation Amendment Bill 2003
Part 7 Amendments and validation provision relating to Western
Power Corporation
Division 2 Energy Operators (Powers) Act 1979
s. 115
system to enable the requested supply to be
effected, and it includes making those extensions
or increases in capacity in a way that
accommodates future demands on the supply
5 system that the energy operator might anticipate,
whether or not the demands of the applicant.
".
115. Section 65 amended and transitional provision
(1) Section 65(2) is repealed and the following subsections are
10 inserted instead --
"
(2) If in the opinion of an energy operator, or an officer or
servant of an energy operator authorised for the
purposes of this section, a meter referred to in
15 subsection (1) was not correctly registering the extent
and value of the energy supplied --
(a) when it was read; or
(b) during any part of the accounting period ending
when it was read,
20 the reading shall be disregarded.
(2a) Where subsection (2) applies, the extent and value of
the energy supplied during the accounting period
ending with the reading --
(a) shall be computed by reference to the results
25 obtained from a test of the meter; or
(b) if that is not practicable, may be assessed under
subsection (3).
".
(2) Section 65(4) and (5) are repealed and the following subsections
30 are inserted instead --
"
(4) Where as the result of --
(a) a computation made under subsection (2a)(a);
or
page 114
Energy Legislation Amendment Bill 2003
Amendments and validation provision relating to Western Part 7
Power Corporation
Energy Operators (Powers) Act 1979 Division 2
s. 115
(b) an assessment made under subsection (3),
it is shown that the charges made were not what they
should have been, the charges may be adjusted in
respect of the period during which the meter was not
5 correctly registering the extent and value of the energy
supplied, and --
(c) shall be credited; or
(d) may be recovered,
accordingly, as the case requires.
10 (5) If --
(a) subsection (2) does not apply; but
(b) it is shown that, for some other reason, the
charges made for a period were not what they
should have been,
15 the charges shall be adjusted so as to present, as near as
may be, a proper accounting for that period, and --
(c) shall be credited; or
(d) may be recovered,
accordingly, as the case requires.
20 (5a) The energy operator is to determine --
(a) the period during which the meter was not
correctly registering the extent and value of the
energy supplied, as mentioned in
subsection (4); or
25 (b) the period for which the charges made were not
what they should have been, as mentioned in
subsection (5),
but, unless subsection (5b) applies, the period so
determined is not to exceed 12 months.
page 115
Energy Legislation Amendment Bill 2003
Part 7 Amendments and validation provision relating to Western
Power Corporation
Division 2 Energy Operators (Powers) Act 1979
s. 116
(5b) The period so determined for the adjustment and
recovery of charges may exceed 12 months if the
energy operator considers on reasonable grounds that
the person concerned obtained energy at any relevant
5 time by a dishonest or illegal act, including an act to
which section 67(1) applies.
".
(3) Section 65 of the principal Act as in force immediately before
the commencement of this section is to continue to have effect
10 for the purpose of adjusting, under section 65, charges in respect
of which, according to the records of the energy operator --
(a) a metering or billing error was discovered by;
(b) a complaint was made to; or
(c) a question was raised with,
15 the energy operator before that commencement.
(4) A statement in writing signed on behalf of an energy operator
showing the day on which, according to the records of the
energy operator --
(a) a metering or billing error was discovered by;
20 (b) a complaint was made to; or
(c) a question was raised with,
the energy operator, as mentioned in subsection (3), is to be
presumed to be correct in the absence of evidence to the
contrary.
25 116. Validation of certain agreements
(1) This section applies where before the commencement of this
section --
(a) an agreement was made between a person and Western
Power Corporation for the purposes of section 58(3) or
30 61(1) of the principal Act; and
page 116
Energy Legislation Amendment Bill 2003
Amendments and validation provision relating to Western Part 7
Power Corporation
Energy Operators (Powers) Act 1979 Division 2
s. 116
(b) the amount which the person agreed to pay to Western
Power Corporation under the agreement was determined
in such a way as to include an amount for the cost of
appropriate network development.
5 (2) The provisions of such an agreement, and all acts, matters and
things relating to it, are and always were as valid and effective
as they would have been if the principal Act had been amended
in accordance with sections 113 and 114 of this Act at the time
when the agreement was entered into.
10 (3) In this section --
"appropriate network development" means "appropriate
network development" as defined in section 58(3a) or
section 61(1a) of the principal Act, as the case may require;
"Western Power Corporation" has the meaning given to that
15 term in section 4(1) of the principal Act.
page 117
Energy Legislation Amendment Bill 2003
Part 8 Miscellaneous Amendments
s. 117
Part 8 -- Miscellaneous Amendments
117. Gas Pipelines Access (Western Australia) Act 1998 amended
(1) The amendment in this section is to the Gas Pipelines Access
(Western Australia) Act 1998*.
5 [* Reprinted as at 11 August 2000.
For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 154.]
(2) Section 73(1)(b) is deleted.
118. Energy Coordination Act 1994 amended
10 (1) The amendment in this section is to the Energy Coordination
Act 1994*.
[* Reprinted as at 5 May 2000.
For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 119, see
15 also Economic Regulation Authority Bill 2002 currently before
Parliament.]
(2) Section 3 is amended in the definition of "distribution system",
in paragraph (b), by inserting after "1994" --
"
20 repealed by section 93 of the Gas
Corporation (Business Disposal) Act 1999
".
[Index] [Search] [Download] [Related Items] [Help]