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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2022-09-07 Daily Xml
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Statutes Amendment (National Energy Laws) (Gas Pipelines) Bill

Introduction and First Reading

The Hon. A. KOUTSANTONIS (West Torrens—Minister for Infrastructure and Transport, Minister for Energy and Mining) (15:47): Obtained leave and introduced a bill for an act to amend the National Electricity (South Australia) Act 1996, the National Energy Retail Law (South Australia) Act 2011 and the National Gas (South Australia) Act 2008. Read a first time.

Second Reading

The Hon. A. KOUTSANTONIS (West Torrens—Minister for Infrastructure and Transport, Minister for Energy and Mining) (15:48): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Government is amending national energy legislation to provide for the implementation of a simpler regulatory framework that will continue to support the safe, reliable and efficient use of and investment in gas pipelines. This amended framework will promote more effective competition and facilitate better access to pipelines, greater price transparency, and improvements to the negotiation framework and dispute resolution mechanisms.

The gas pipeline regulatory framework has undergone a series of reviews and refinements since it was first implemented 25 years ago. Most recently, reviews by the Australian Competition and Consumer Commission (ACCC), the Australian Energy Market Commission (AEMC) and Dr Michael Vertigan from 2015 to 2018 focussed on whether the regulatory framework acts as an effective constraint on the market power of pipeline service providers.

On the basis of these reviews, Energy Ministers agreed to a new information disclosure and arbitration framework (referred to as 'Part 23') that was introduced in August 2017. Part 23 applies to previously unregulated or 'non-scheme' pipelines that are providing third party access. Energy Ministers also agreed to a package of reforms to strengthen regulation of 'scheme' pipelines.

Despite these improvements, other potential issues were identified by the AEMC which were beyond the scope of its review. To address these issues, Energy Ministers tasked officials to develop a Regulation Impact Statement (RIS) in 2018 to examine the tests used to apply pipeline regulation as well as the different forms of regulation and governance arrangements.

In May 2021, after an extensive consultation process that included the release of a consultation RIS in late 2019, Energy Ministers agreed a package of reforms to improve gas pipeline regulation. The reforms will deliver a simpler regulatory framework that will continue to support the safe, reliable and efficient use of and investment in gas pipelines, while also:

posing a more effective constraint on exercises of market power by pipeline service providers;

facilitating better access to pipelines that would not otherwise provide such access, while also minimising the cost and risks associated with regulation where there are no third party users;

providing greater support for commercial negotiations between shippers and service providers through more transparency, including greater price transparency, and improvements to the negotiation framework and dispute resolution mechanisms; and

streamlining the governance arrangements.

In March 2022, Energy Ministers agreed to the final package of gas pipeline regulatory amendments. The package of reforms is expected to deliver significant benefits to the Australian economy through reduced costs, improved pipeline access and more effective competition in gas transportation.

The Statutes Amendment (National Energy Laws) (Gas Pipelines) Bill 2022 includes changes to the National Gas Law (NGL), National Electricity Law (NEL), National Energy Retail Law (NERL) and National Gas (South Australia) Regulations. The reforms will apply in New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, and the Northern Territory.

The Bill expands the scope of economic regulation by requiring all transmission and distribution pipeline service providers to provide third party access, if such access is sought. To allow third party access to all pipelines, the Bill removes the existing coverage framework. Pipelines will be classified as either a scheme pipeline, subject to the stronger form of regulation based on the existing full regulation category, or a non-scheme pipeline, subject to the lighter commercially oriented form of regulation based on a strengthened Part 23.

All pipelines will be subject to requirements to publish prescribed transparency information and to comply with a single negotiation framework, ring-fencing and associate contract arrangements, a prohibition on bundling services, and dynamic market power measures (applying to all pipelines except the Declared Transmission System). Exemptions from ring-fencing, associate contract arrangements and the requirement to publish prescribed transparency information will be available to pipelines that meet certain eligibility criteria in accordance with the NGR.

The existing form of regulation test (with some minor modifications) will be used to determine whether a pipeline is deemed a scheme pipeline or whether a scheme pipeline should instead become a non-scheme pipeline. To overcome the information asymmetries that the Australian Energy Regulator (AER) is likely to face when applying the form of regulation test, it will be able to draw an adverse inference that a pipeline should be subject to the stronger form of regulation. The AER's ability to exercise this power will be limited to where the service provider does not provide the information requested within the period specified by the AER. The AER will be required to report on when it has used this power.

The Bill will provide for a greenfields incentive determination, which will be available to service providers prior to the commissioning of a new pipeline. The incentive will replace the existing competitive tender process and 15 year no coverage determination. The incentive will be available where the AER is satisfied that the form of regulation factors or competition to develop the pipeline (whether formal or informal) will, or is likely to pose, an effective constraint on the exercise of market power over the incentive period. The incentive will provide the pipeline with an exemption from being subject to the stronger form of regulation, but not the lighter form of regulation. The default incentive period will be 15-years, with the AER having the discretion to grant a shorter period.

The Bill will also allow pipelines with a greenfields incentive determination to apply for a price protection determination, which an arbitrator would be required to give effect to if an access dispute arises during the operative period of the determination. The operative period cannot be longer than the greenfields incentive period (no more than 15 years). This determination will be available where the AER is satisfied that:

the pipeline has been developed as a result of a competitive process (either formal or informal) and the prices and non-price terms and conditions will be made available to prospective users during the operative period of the price protection have been set as a result of that process; or

one or more of the form of regulation factors effectively constrained the exercise of market power by the service provider when the price and non-price terms and conditions that will be made available to prospective users were determined and the making of the determination will, or is likely to, contribute to the achievement of the National Gas Objective.

The Bill provides for scheme pipelines to continue being subject to the regulatory-oriented dispute resolution mechanism but will be strengthened by stipulating the matters the dispute resolution body is to have regard to, fast tracking the process and specifying the material to be published following a decision. Non-scheme pipelines will be subject to the same commercially-oriented access dispute mechanism that currently applies under Part 23.

The credibility of the threat of small shippers triggering a dispute on scheme and non-scheme pipelines will be strengthened and a definition of a small shipper will be included.

The Bill will confer responsibility for form of regulation decisions, greenfields incentive determinations and greenfields price protection determinations, pipeline classification decisions, and exemption decisions from prescribed transparency information and the ring fencing and associate contract arrangements to the AER.

In addition to the new powers conferred to the AER, the Bill will require the AER to publish a regulatory determinations and elections guide. The AER will also be required to actively monitor the behaviour of service providers and compliance with their obligations under the NGL and NGR and will be able to initiate its own assessment of the form of regulation that should apply to a pipeline.

The Bill provides for the South Australian Minister responsible for Energy to make amendments to National Gas Rules (NGR) that will implement the gas pipeline reforms. Once the amendments have been made, the Minister will have no power to make any further amendments.

I commend this Bill to members.

EXPLANATION OF CLAUSES

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of National Electricity Law

4—Amendment of section 2—Definitions

The deletion of 2 definitions is related to the amendments to the National Gas Law.

5—Amendment of section 16—Manner in which AER performs AER economic regulatory functions or powers

The 2 definitions deleted in section 2 are relocated to section 16.

Part 3—Amendment of National Energy Retail Law

6—Amendment of section 2—Interpretation

7—Amendment of section 88—Requirement for authorisation or exemption

8—Amendment of section 137—RoLR notice—direction for gas

These amendments are consequential.

Part 4—Amendment of National Gas (South Australia) Act 2008

9—Amendment of section 9—Interpretation of some expressions in National Gas (South Australia) Law and National Gas (South Australia) Regulations

10—Amendment of section 14—Conferral of powers on Commonwealth Minister and Commonwealth bodies to act in this State

These amendments are technical or consequential.

11—Repeal of section 18

Section 18 is repealed.

Part 5—Amendment of National Gas Law

12—Amendment of section 2—Definitions

Various amendments are made to the definitions section for the purposes of the measure.

13—Amendment of section 3—Meaning of civil penalty provision

Certain amendments are made to the section relating to the meaning of a civil penalty provision for the purposes of the measure.

14—Amendment of section 4—Meaning of conduct provision

Certain amendments are made to the section relating to the meaning of a conduct provision for the purposes of the measure.

15—Amendment of section 5—Meaning of prospective user

16—Amendment of section 8—Meaning of service provider

These amendments are consequential.

17—Insertion of section 8AAB

New section 8AAB is inserted:

8AAB—Meaning of small shipper

Provision is made in relation to the meaning of a small shipper.

18—Amendment of section 8A—Nominated distributors

19—Amendment of section 9—Passive owners of scheme pipelines deemed to provide or intend to provide pipeline services

20—Amendment of section 13—Pipeline classification criterion

21—Repeal of sections 14 and 15

22—Amendment of section 16—Form of regulation factors

23—Amendment of section 17—Effect of separate and consolidated access arrangements in certain cases

These amendments are consequential.

24—Substitution of sections 18 and 19

New sections 18 and 19 are inserted:

18—Certain extensions to, or expansion of the capacity of, pipelines to be taken to be part of a scheme pipeline

Provision is made for certain extensions or expansions of capacity of pipelines to be taken as being part of a scheme pipeline.

19—Expansions of the capacity of non-scheme pipelines to be taken to be part of non-scheme pipeline

Provision is made for expansions of capacity of non-scheme pipelines to be taken to be part of the non-scheme pipeline.

25—Amendment of section 22—Ministers of participating jurisdictions

This amendment is consequential.

26—Amendment of heading to Chapter 1, Part 3, Division 2—Revenue and pricing principles

An amendment is made to the Division heading for the purposes of the measure.

27—Amendment of section 24—Revenue and pricing principles

This amendment is consequential.

28—Amendment of section 27—Functions and powers of the AER

This amendment gives the AER various additional powers for the purposes of the measure, and makes a consequential amendment.

29—Amendment of section 28—Manner in which AER must perform or exercise AER economic regulatory functions or powers

This amendment adds new definitions for the purposes of the section, and makes a consequential amendment.

30—Amendment of section 30C—Rate of return instrument is binding on AER and covered pipeline service providers

31—Amendment of section 30E—Content of rate of return instrument

32—Amendment of section 30Q—Application of instrument

These amendments are consequential.

33—Amendment of section 43—Definitions

Various amendments are made to the definitions section for the purposes of the measure.

34—Amendment of section 44—Meaning of contributing service 35—Amendment of section 45—Meaning of general regulatory information order

36—Amendment of section 46—Meaning of regulatory information notice 37—Amendment of section 48—Service and making of regulatory information instruments

38—Amendment of section 49—Additional matters to be considered for related provider regulatory information instruments

39—Amendment of section 52—Opportunity to be heard before regulatory information notice is served

40—Amendment of section 53—Form and content of regulatory information instrument

41—Amendment of section 54—Further provision about the information that may be described in a regulatory information instrument

42—Amendment of section 59—Assumptions where there is non-compliance with regulatory information instrument

These amendments are consequential

43—Insertion of Chapter 2, Part 1, Division 4A

New Chapter 2, Part 1, Division 4A is inserted: , and details the AER's reporting requirements.

Division 4A—Monitoring service providers

63A—AER must monitor service providers' behaviour

Provision is made for the AER power to monitor various matters regarding service providers.

63B—AER must report to MCE

The AER is required to report to the MCE.

44—Amendment of heading to Chapter 2, Part 1, Division 5—Service provider performance reports

This clause amends the heading of Chapter 2, Part 1, Division 5 to specify it relates to scheme pipelines. In addition, the heading to section 64 is similarly amended.

45—Insertion of Chapter 2, Part 1, Division 5A

New Chapter 2, Part 1, Division 5A is inserted:

Division 5A—Compliance and performance

64A—References in this Division to service providers

Provision is made in relation to terms used in the division.

64B—Compliance audits by AER

Proposed section 64B gives the AER power to conduct compliance audits of service providers, or alternatively to arrange for them to be done on the AER's behalf.

64C—Compliance audits by service providers

Proposed section 64C requires service providers to conduct compliance audits.

64D—Carrying out of compliance audits

Proposed section 64D requires compliance audits to be carried out in such a way that follows the AER compliance procedures and guidelines.

64E—Cost of compliance audits

Proposed section 64E outlines where the cost of a compliance audit will lie.

64F—AER Compliance Procedures and Guidelines

Proposed section 64F requires the AER to make the AER compliance procedures and guidelines.

46—Substitution of section 83A

New section 83A is substituted:

83A—Information and transparency requirements relating to compression service facilities and storage facilities

Provision is made for Rules to be made in support of certain aspects of the measure.

83AA—Publication of information relating to compression service facilities and storage facilities

A person required by Rules made under the proposed section 83A to publish information must do so in accordance with the Rules.

47—Repeal of section 88

Section 88 is repealed.

48—Repeal of Chapter 2, Part 4

Chapter 2, Part 4 is repealed.

49—Amendment of section 91BH—General principles governing determinations

This amendment is consequential.

50—Amendment of section 91KA—Supply interruption or disconnection in compliance with AEMO's direction

This amendment deletes the definition of distribution pipeline specific to section 91KA.

51—Amendment of section 91LA—Retail market participation

This amendment removes non-scheme pipeline users from the list of person's who can be classified within the Rules as a participant in a regulated retail gas market.

52—Substitution of Chapter 3

New chapter 3 is substituted, which details the regulatory framework for pipelines.

Chapter 3—Regulatory framework for pipelines

Part 1—Scheme pipeline determinations and scheme pipeline elections

Division 1—Scheme pipeline determinations

92—AER may make scheme pipeline determination

Provision is made for the AER to determine that a non-scheme pipeline is a scheme pipeline.

93—Requirements for making, or not making, a scheme pipeline determination

A scheme pipeline determination, or a decision not to make a scheme pipeline determination must be made in accordance with these requirements.

94—Effect of scheme pipeline determination

Pipelines subject to scheme pipeline determinations become scheme pipelines when the determination takes effect, and continue to be scheme pipelines while the determination remains in effect.

Division 2—Scheme pipeline elections

95—Scheme pipeline elections

Provision is made for non-scheme pipelines to elect to be dealt with as scheme pipelines.

96—Effect of scheme pipeline elections

Provision is made for when scheme pipeline elections take effect, and their effect.

Part 2—Scheme pipeline revocation determinations

97—AER may make scheme pipeline revocation determination

Provision is made for the AER, on its own initiative, or on the application of any person, to make a scheme pipeline revocation determination in relation to scheme pipelines that are not designated pipelines.

98—Requirements for making, or not making, a scheme pipeline revocation determination

A scheme pipeline revocation determination must be made in accordance with these requirements.

99—Effect of scheme pipeline revocation determination

Pipelines that are subject to scheme pipeline revocation determinations cease to be scheme pipelines when the determination takes effect.

Part 3—Greenfields incentive determinations and greenfields price protection determinations

Division 1—Greenfields incentive determinations

100—AER may make greenfields incentive determination

Provision is made for the AER to, on the application of the service provider for a greenfields pipeline project, make a determination that the relevant pipeline cannot become a scheme pipeline for the operative period of the determination.

101—Requirements for making, or not making, a greenfields incentive determination

Provision is made for the requirements for the AER to make, or not make, a greenfields incentive determination under section 100.

102—Effect of greenfields incentive determination

Provision is made as to what the effect of a greenfields incentive determination is.

103—Requirement for conformity between pipeline description and pipeline as constructed

Greenfields incentive determinations may only apply to pipelines which do not materially differ from the pipeline as described in the relevant description.

104—Power of AER to amend pipeline description

Provision is made for the AER to amend a pipeline description, on application by the service provider for a pipeline to which a greenfields incentive determination applies.

Division 2—Early termination of greenfields incentive determination

105—Greenfields incentive determination may lapse

Greenfields incentive determinations in respect of a pipeline lapse if the relevant pipeline is not commissioned within a certain period after the determination takes effect.

106—Revocation by consent

Provision is made for the revocation by the AER of a greenfields incentive determination by consent of the service provider.

107—Revocation for misrepresentation

Provision is made for the revocation by the AER of a greenfields incentive determination due to the various faults on the part of the applicant.

108—Exhaustive provision for termination of greenfields incentive determination

Provision is made regarding how the termination or revocation of a greenfields incentive determination takes effect.

Division 3—Greenfields price protection determinations

109—AER may make greenfields price protection determination

Provision is made for the AER to make a greenfields price protection determination.

110—Requirements for making, or not making, a greenfields price protection determination

Provision is made regarding the requirements for making, or not making, a greenfields incentive determination.

111—Effect of greenfields price protection determination

Provision is made regarding the effect of a greenfields price protection determination.

Part 4—Principles governing the making of particular determinations

112—Principles governing the making of particular determinations

Provision is made regarding the principles for making scheme pipeline determinations, scheme pipeline revocation determinations and greenfields incentive determinations.

Part 5—Access arrangements for scheme pipelines

Division 1—Submissions generally

113—Submission of access arrangement or revisions to applicable access arrangement

Scheme pipeline service providers must submit access arrangements or variations to applicable access arrangements, to the AER for approval in accordance with the Rules.

Division 2—Provisions relating to applicable access arrangements

114—Protection of certain pre-existing contractual rights

Provision is made such that applicable access arrangements will not deprive certain protected contractual rights.

115—Service provider may enter into agreement for access different from applicable access arrangement

Provision is made such that service providers may enter into agreements with users for access to pipeline services that are different from an applicable access arrangement for the relevant pipeline service.

116—Applicable access arrangements continue to apply regardless of who provides pipeline service

Access arrangements apply to pipeline services provided by scheme pipelines regardless of who provides the pipeline service.

Part 6—Classification and reclassification of pipelines

Division 1—Classification of pipelines

117—Application for classification of pipeline

Provision is made for service providers to apply to the AER for the classification of a pipeline.

Division 2—Reclassification of pipelines

118—Reclassification of pipelines

Provision is made for the AER, on its own initiative or on the application of a service provider, to decide to reclassify a pipeline.

Division 3—Provisions relating to classification and reclassification decisions

119—Requirements for making classification or reclassification decisions

Provision is made for what the AER must have regard to when making a decision under section 117 or 118.

120—Effect of classification decision or reclassification decision

Provision is made for the effect of classification or reclassification decisions.

Part 7—AER reviews into designated pipelines

121—AER reviews

Provision is made for the MCE to request a review by the AER as to whether a given pipeline should continue to be a designated pipeline.

53—Amendment of heading to Chapter 4

The heading of Chapter 4 is amended to reflect that the chapter now applies to both scheme and non-scheme pipelines.

54—Insertion of Chapter 4 Part A1

New Chapter 4, Part A1 is inserted

Part A1—Preliminary

130—Application of this Chapter

This section provides information as to the application of the Chapter.

55—Amendment of heading to Chapter 4, Part 1

The heading of Chapter 4, Part 1 is amended to reflect that the part now applies to both scheme and non-scheme pipelines.

56—Amendment of section 131—Service provider must be legal entity of a specified kind to provide pipeline services by covered pipeline

This amendment is consequential

57—Repeal of section 132

Section 132 is repealed.

58—Amendment of section 133—Preventing or hindering access

This amendment is consequential

59—Repeal of section 134

Section 134 is repealed.

60—Substitution of section 135

New section 135 is substituted:

135—Service provider must comply with queuing requirements

Provision is made requiring service providers to comply with queuing requirements imposed by an applicable access arrangement or the Rules.

61—Substitution of section 136

New section 136 is substituted:

136—Compliance with pipeline interconnection principles

Provision is made to require service providers comply with principles specified in the Rules.

136A—Prohibition against increasing charges to subsidise particular development

Provision is made to prohibit charging users to subsidise extension or expansion of capacity of the pipeline without a specific exemption.

136B—Prohibition on bundling of services

Provision is made to prohibit bundling services.

136C—Service providers must publish prescribed transparency information

Provision is made relating to the publishing of transparency information.

62—Amendment of section 137—Definitions

This amendment deletes the definition of compliance date, and makes a consequential amendment to the definition of related business.

63—Amendment of section 138—Meaning of marketing staff

This amendment makes a consequential change to multiple subsections, and additionally amends the text of an example within the provision.

64—Amendment of section 139—Carrying on of related businesses prohibited 65—Amendment of section 140—Marketing staff and the taking part in related businesses

66—Amendment of section 141—Accounts that must be prepared, maintained and kept

67—Amendment of section 143—AER ring fencing determinations 68—Amendment of section 144—AER to have regard to likely compliance costs of additional ring fencing requirements

These amendments are consequential.

69—Amendment of section 145—Types of ring fencing requirements that may be specified in an AER ring fencing determination

This amendment makes a consequential change to the text of Section 145, and additionally makes consequential amendments to the text of the Examples within in the provision.

70—Repeal of Chapter 4, Part 2, Division 4

Chapter 4, Part 2 Division 4 is repealed

71—Redesignation of Chapter 4, Part 2, Division 5

This amendment redesignates division 5 to division 4, consequential to the repeal of the current division 4.

72—Amendment of section 147—Service provider must not enter into or give effect to associate contracts that have anti-competitive effect

73—Amendment of section 148—Service provider must not enter into or give effect to associate contracts inconsistent with competitive parity rule

These amendments are consequential.

74—Insertion of Chapter 4, Part 2, Division 5 and Chapter 4, Parts 3 and 4

New Chapter 4, Part 2, Division 5 and Chapter 4, Parts 3 and 4 are inserted.

Division 5—Exemptions from particular requirements

148A—Exemptions from particular requirements

Provision is made for the Rules to make provisions regarding exemptions from the requirements made by some sections of the measure.

Part 3—Negotiation of access

148B—Definition

Provision is made for definitions for the purposes of the part.

148C—Access proposals

Provision is made for there to be Rules governing access to relevant pipeline services.

148D—Duty to negotiate in good faith

Proposed section 148D requires good faith negotiations by users or prospective users and service providers when access is sought.

Part 4—AER reviews about application of this Chapter

148E—AER reviews about application of this Chapter

Proposed section 148E gives the MCE the power to request the AER conduct a review into the application of the Chapter, and outlines the requirements and details of what such a review must be.

75—Substitution of Chapters 5 to 6A

New Chapter 5 is inserted, and Chapter 6A is repealed.

Chapter 5—Access disputes

Part 1—Interpretation and application

149—Definitions

This section provides various definitions for the purposes of the Chapter.

150—Application of this Chapter to disputes arising under the Rules

This section outlines that the provisions in the Chapter applicable to determining an access dispute apply to any dispute arising from the a provision of the Rules specified in the Rules for the purposes of this section, subject to any modification of the provisions in the Chapter specified by the Rules.

151—Chapter does not limit how disputes about access may be raised or dealt with

This section makes it clear that the Chapter does not limit how disputes about access to pipeline services can be raised or otherwise dealt with.

Part 2—Notice of access dispute and other provisions

Division 1—Notice of access dispute

152—Notice of access dispute

Provision is made as to how notice of an access dispute may be given in relation to either a scheme or a non-scheme pipeline.

153—Withdrawal of notice

Provision is made as to how a notice given under section 152 may be withdrawn.

Division 2—Parties to an access dispute

154—Parties to an access dispute

Provision is made as to who constitutes a party to an access dispute in various circumstances.

Part 3—Alternative dispute resolution for access disputes

Division 1—Alternative dispute resolution for scheme pipeline access disputes

155—Dispute resolution body may require parties to engage in alternative dispute resolution

This section allows the dispute resolution body to require the parties engaged in an access dispute relating to a scheme pipeline to attempt some form of alternate dispute resolution.

Division 2—Mediation of access disputes involving small shippers

156—Small shipper may elect to have access dispute mediated

This section allows a small shipper party to an access dispute to elect for the dispute to be resolved through mediation.

157—Appointment of mediator

Provision is made for the appointment of a mediator for the purposes of section 156.

158—Party's lawyer may be present at mediation

This section allows for the lawyer for a party to mediation to be present at the mediation.

Part 4—Arbitration of non-scheme pipeline access disputes

159—Reference of non-scheme pipeline access dispute to arbitration

This section requires the AER to refer access disputes relating to non-scheme pipelines to arbitration.

160—Appointment of arbitrator

Provision is made for the appointment of an arbitrator for the purposes of section 159.

Part 5—Access determination

Division 1—Determination of access disputes generally

161—Determination of access dispute

Provision is made for the determination of access disputes.

162—Matters to be taken into account for access disputes

This section requires that the relevant adjudicator, when making an access determination, must take into account any matters specified by the Rules for the purposes of this section.

163—Restrictions on access determinations

This section outlines restricts access determinations from having various effects.

164—Access determinations and part contributions of capital to fund installations or the construction of new facilities

This section allows adjudicators in access disputes to take into account capital contributions or construction of facilities for the pipeline the subject of the dispute, as well as making provision for the Rules to specify the matters to be addressed by the adjudicator, and the content of the determination.

Division 2—Particular provisions relating to scheme pipeline access disputes

165—Access determination must give effect to applicable access arrangement

This section requires that in making access determinations, a dispute resolution body must give effect to applicable access arrangements.

166—Rules may allow determination that varies applicable access arrangement for installation of a new facility

Provision is made for the Rules to do various things in relation to access determinations and applicable access arrangements.

Part 6—Variation of access determinations

167—Variation of access determination—scheme pipeline disputes

This section allows the relevant dispute resolution body to vary an access determination made in relation to a scheme pipeline access dispute on the application of any party to the determination, subject to not being able to vary a final determination if any party objects.

168—Variation of access determination—non-scheme pipeline disputes

This section allows for an access determination in an access dispute regarding non-scheme pipelines to be varied where all parties agree to the variation.

Part 7—Termination of access dispute

169—Relevant adjudicator may terminate access dispute in particular circumstances

Provision is made for the relevant adjudicator to terminate an access dispute.

Part 8—Compliance with access determinations

170—Compliance with access determination

Provision is made for the application of access determinations in respect of scheme and non-scheme pipelines.

171—Subsequent service providers bound by access determinations

This section establishes that an access determination is binding on any subsequent service provider as though they were a party to the access dispute at the time the determination was made.

Part 9—Access dispute hearing procedure

172—Part applies subject to any modifications prescribed by the Regulations

This section establishes that the part applies subject to modification by the Regulations.

173—Fast track resolution process—scheme pipeline access disputes

Provision is made for scheme pipeline access disputes to be dealt with by a fast track resolution process established by the Rules.

174—Hearing to be in private

This section establishes that, subject to the agreement of the parties, dispute hearings are to be in private.

175—Right to representation

This section establishes that parties to a dispute hearing may appear in person, or be represented by another person.

176—Procedure of relevant adjudicator

Provision is made for the procedure to be followed by the relevant adjudicator in conducting the access dispute.

177—Particular powers of relevant adjudicator in a hearing

This section gives the relevant adjudicator in an access dispute various powers.

178—Role of a dispute resolution expert

Provision is made for the role of a dispute resolution expert in an access dispute.

179—Disclosure of information

This section gives the relevant adjudicator for an access dispute the power to give orders to a person to not divulge or communicate information given to the person in the course of the access dispute without the permission of the adjudicator.

180—Power to take evidence on oath or affirmation

This section gives the relevant adjudicator power to take evidence on oath or affirmation.

181—Failing to attend as a witness

This section requires a person, who is served as per the Regulations, a summons to appear as a witness at a dispute hearing for an access dispute to attend the dispute hearing, unless they have a reasonable excuse for failing to do so.

182—Failing to answer questions etc

This section requires a witness at a dispute hearing for an access dispute for an access dispute to be sworn or make an affirmation, and to answer questions or produce documents as required, without reasonable excuse.

183—Intimidation etc

This section prohibits the intimidation of people who intend to produce, or have produced documents, or who are intending to appear or have appeared as a witness, in a dispute hearing.

184—Particular powers of a relevant adjudicator in a hearing

This section gives the relevant adjudicator in a dispute hearing the power to not share with the another party parts of documents which one party has informed the adjudicator contain confidential information.

Part 10—Costs

Division 1—Scheme pipeline access disputes

185—Costs—scheme pipeline access disputes

Provision is made in relation to the determination and apportionment of costs incurred in a dispute hearing.

186—Outstanding costs are a debt due to party awarded the costs—scheme pipelines

Provision is made in relation to the nature and recovery of costs that are payable under section 185(4) or (5).

187—Regulations about the costs to be paid by parties to access dispute—scheme pipelines

Provision is made for the regulations to provide for the dispute resolution body to charge parties its costs in an access dispute, and to apportion those costs between parties.

Division 2—Non-scheme pipeline disputes

188—Costs of arbitration of non-scheme pipeline disputes

Provision is made for how costs are to be determined in relation to the arbitration of a non-scheme pipeline dispute.

Division 3—Mediation of access disputes involving small shippers

189—Costs of mediation of access disputes involving small shippers

Provision is made regarding how costs are determined in an access dispute involving small shippers which is referred to mediation.

Part 11—Joint access dispute hearings—scheme pipeline disputes

190—Definition

Provision is made for the definition of a term for the purposes of the Part.

191—Joint dispute hearing

Provision is made for the application of the section.

192—Consulting the parties

Provision is made for the dispute resolution body to consult the parties prior to making a decision, and to be required to invite and consider any submissions made by the parties in regards to what the dispute resolution body proposes to do.

193—Constitution and procedure of dispute resolution body for joint dispute hearings

Part 9 applies to the joint dispute hearing in a corresponding way to the way in which it applies to a particular dispute hearing.

194—Record of proceedings etc

Provision is made for the dispute resolution body to have regard to various materials for the purpose of the dispute hearing.

Part 12—Miscellaneous matters

195—Correction of access determinations for clerical mistakes etc

Provision is made for the relevant adjudicator for an access determination to, subject to the Rules, correct certain types of errors in the access determination.

196—User's existing capacity rights during an access dispute

Provision is made such that existing rights of a user to use the capacity a pipeline must not be altered during an access dispute by the service provider, except with the user's consent.

76—Amendment of section 231—AER proceedings for breaches of this Law, Regulations or the Rules that are not offences

This amendment corrects a minor grammatical error, and additionally makes an amendment to the note found in section 242 of the National Law.

77—Amendment of section 271—Enforcement of access determinations 78—Amendment of section 292—AEMC must take into account form of regulation factors in certain cases

79—Amendment of section 293—AEMC must take into account revenue and pricing principles in certain cases

These amendments are consequential.

80—Insertion of section 294FB

New section 294FB is inserted

294FB—South Australian Minister to make initial Rules relating to pipeline regulation

This section gives the South Australian Minister the power to make Rules for certain things for the purposes of the measure.

81—Amendment of section 294G—South Australian Minister may make Rules on recommendation of MCE and Energy Security Board

82—Amendment of section 324—Authorised disclosure of information given to the AER in confidence

These amendments are consequential

83—Repeal of Chapter 10, Part 1

Chapter 10, Part 1 is repealed

84—Substitution of Chapter 10, Part 2, Division 2

New Chapter 10, Part 2, Division 2 is inserted:

Division 2—Disclosure of confidential information held by AEMC

330—Confidentiality of information

Provision is made for the confidentiality of information held by AEMC.

85—Amendment of section 332—Failure to make a decision under this Law or the Rules within time does not invalidate the decision

This amendment removes the NCC as a defined regulator scheme decision maker for the purposes of the section.

86—Substitution of section 333

New Section 333 is substituted:

333—Withdrawal of applications relating to particular determinations or classification

Provision is made for the withdrawal of applications for a relevant decision.

87—Repeal of sections 334 and 335

Sections 334 and 335 are repealed.

88—Substitution of Schedule 1

New Schedule 1 is substituted:

Schedule 1—Subject matter for the National Gas Rules

Provision is made for the subject matter the National Gas Rules may cover.

89—Amendment of Schedule 2—Miscellaneous provisions relating to interpretation

Various consequential amendments are made to Schedule 2 for the purpose of the measure.

90—Amendment of Schedule 3—Savings and transitionals

Transitional provisions are inserted into Schedule 3 for the purposes of the measure.

Debate adjourned on motion of Mr Patterson.

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