Competition Policy (Gas Supply Contract Exemption) Regulations 1996 (Vic)

Competition Policy (Gas Supply Contract

Exemption) Regulations 1996

S.R. No. 135/1996

TABLE OF PROVISIONS

Regulation Page

1.	Objective	1
2.	Authorising provisions	1
3.	Definitions	1
4.	Assignment	5
5.	Approval	7
6.	Application	7
7.	Expiry	9

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i

STATUTORY RULES 1996

S.R. No. 135/1996

Competition Policy Reform (Victoria) Act 1995

Competition Policy (Gas Supply Contract

Exemption) Regulations 1996

The Governor in Council makes the following Regulations:
Dated: 26 November 1996

Responsible Minister:

JEFFREY GIBB KENNETT

Premier

A. WILTSHIRE

Acting Clerk of the Executive Council

1. Objective

The objective of these Regulations is to provide that certain activities relating to the supply of gas to GASCOR by BHP and Esso are authorised for the purposes of—

(a) Part IV of the Trade Practices Act; and

(b) the Competition Code.

2. Authorising provisions

These Regulations are made under section 39 of the Competition Policy Reform (Victoria) Act 1995.

3. Definitions

In these Regulations—

"BHP" means BHP Petroleum (Bass Strait) Pty

Ltd or a body corporate related to it;

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"Esso" means Esso Australia Resources Ltd. or a body corporate related to it;

"gas" has the same meaning as in the Gas

Industry Act 1994;

"GASCOR" has the same meaning as in the Gas Industry Act 1994;

"gas supply contract" means—

(a) a contract for the supply of gas made between BHP and Esso as sellers and GASCOR as buyer dated 20 November

1996; and

(b) described in paragraph (a) in
accordance with the principles of the
unwritten law and, in the case of any
variation to a specified exclusionary
provision, a specified price provision, a
specified terms provision, a specified
acquisition exclusivity provision, a
specified supply exclusivity provision

each and any variation to the contract approved by the Minister; and

(c) a contract or arrangement made or understanding arrived at between—

(i) BHP, Esso and GASCOR; or

(ii)  GASCOR and either of BHP or Esso—

for the purpose of giving effect to, or incidental to, an obligation or right of one or more of the parties under the

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S. R. No. 135/1996

contract referred to in paragraph (a) or any variation to that contract under and in accordance with paragraph (b);

"specified acquisition exclusivity provision", in

relation to a gas supply contract, means a
provision that comprises or includes a
condition, whether direct or indirect and
whether having legal or equitable force or
not, that GASCOR will not, or will not
except to a limited extent, acquire gas
directly or indirectly from a person who is or
is likely to be or would be but for that
provision, a competitor of BHP or a
competitor of Esso or a competitor of a body
corporate related to either of them;

"specified exclusionary provision", in relation to a gas supply contract, means a provision that—

(a) restricting or limiting the acquisition of
gas by GASCOR from particular

has the purpose of preventing, particular persons or classes of persons in particular circumstances or on particular conditions; or

(b) restricting or limiting the supply of gas
by Esso or BHP severally to GASCOR
or to GASCOR in particular

has the purpose of preventing, conditions; or

(c) has the purpose of preventing, restricting or limiting the supply of gas by Esso and BHP jointly or by either or each of them severally to particular persons or classes of persons (other

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than GASCOR) or to particular persons or classes of persons (other than GASCOR) in particular circumstances or on particular conditions;

"specified price provision", in relation to a gas supply contract, means a provision that has the purpose, or has or is likely to have the

effect, of fixing, controlling or maintaining
or providing for the fixing, controlling or
maintaining of the price for gas to be
supplied by Esso and BHP jointly or either

of them severally to GASCOR;

"specified supply exclusivity provision", in

relation to a gas supply contract, means a
provision that comprises or includes a
condition, whether direct or indirect and
whether having legal or equitable force or
not, that Esso and BHP jointly or either or
each of them severally will not supply gas to
any person or will not, or will not except to a
limited extent, supply gas to particular
persons or classes of persons or to persons
other than particular persons or classes of
persons or in particular places or classes of
places or in places other than particular

places or classes of places;

"specified terms provision", in relation to a gas

provides for the supply of gas by Esso and

supply contract, means a provision that GASCOR upon identical or like or similar terms and conditions that has the purpose, or would have or would be likely to have the effect, of substantially lessening competition within the meaning of section 45 of the Trade Practices Act and the Competition Code;

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"specified volume provision", in relation to a

gas supply contract, means a provision, not
being a specified acquisition exclusivity
provision or a specified supply exclusivity
provision, that provides for during or in
respect of any particular period or series of

particular periods—

(a)	the acquisition by GASCOR from Esso and BHP jointly or from either or each of them severally of a volume of gas
that is specified, identifiable or capable of calculation; or
(b)	the supply to GASCOR by Esso and BHP jointly or by either or each of them severally of a volume of gas that is specified, identifiable or capable of calculation; or
(c)	the payment by GASCOR to Esso and BHP jointly or to either or each of them severally of any amount of money for the reason that GASCOR has not acquired or has not agreed to acquire from Esso and BHP jointly or from either or each of them severally (as the case may be) a volume of gas that is specified, identifiable or capable of calculation—

and that has the purpose, or has or is likely to
have the effect, of substantially lessening
competition within the meaning of section 45
of the Trade Practices Act and the

Competition Code.

4. Assignment

(1) If GASCOR, Esso or BHP assigns the whole or

any part or any combination of parts (not
comprising the whole) of its rights under a gas

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supply contract to a person or to persons, a
reference to GASCOR, Esso or BHP (as the case
requires) in these Regulations (except the
definitions in regulation 3 of "BHP", "Esso" or
"GASCOR" and this regulation) shall be
construed from the time of that assignment to

be—

(a)	in the case where GASCOR, Esso or BHP assigns the whole of its rights under a gas supply contract, a reference to that person or
to those persons and to a body corporate related to that person or to any of those persons; and
(b)	in the case where GASCOR, Esso or BHP assigns a part or combination of parts (not comprising the whole) of its rights under a gas supply contract—

(i)  in respect of the part or combination of parts assigned, a reference to that person or to those persons and to a body corporate related to that person or to any of those persons; and

(ii)  in respect of the rights retained, a reference to GASCOR, Esso or BHP (as the case requires).

(2) Sub-regulation (1) applies to each and any

assignment by a person or persons of the whole or contract and held at that time by that person or those persons and in respect of which there has been a previous application of sub-regulation (1).

any part or combination of parts (not comprising
the whole) of the rights held originally by

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(3) For the purposes of this regulation—

(a)	a reference to assignment and other grammatical forms of that word shall be read as a reference to assignment, conveyance, grant, transfer or novation and the other corresponding grammatical forms of each of those words; and
(b)	a reference to rights under a gas supply contract shall be read as a reference to rights, benefits, privileges or facilities under a gas supply contract.

5. Approval

For the purposes of Part IV of the Trade Practices regulation 6 as a thing or other conduct engaged in to which this regulation applies, is specifically authorised to be done during the period ending on 20 November 1997.

Act and of the Competition Code any thing done
or other conduct engaged in by any, all or some of

6. Application

Regulation 5 applies to the following things—

(a)	attempting to make or making a gas supply contract which contains a specified exclusionary provision;
(b)	attempting to give or giving effect to a specified exclusionary provision of a gas supply contract;
(c)	attempting to make or making a gas supply contract which contains a specified terms provision;
(d)	attempting to give or giving effect to a specified terms provision of a gas supply contract;

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(e)	attempting to make or making a gas supply contract which contains a specified price provision;
(f)	attempting to give or giving effect to a specified price provision of a gas supply contract;
(g)	attempting to make or making a gas supply contract which contains a specified volume provision;
(h)	attempting to give or giving effect to a specified volume provision of a gas supply contract;

(i)  attempting to supply or attempting to offer to supply or supplying or offering to supply gas to GASCOR pursuant to a gas supply

contract which contains a specified acquisition exclusivity provision where the engaging by Esso and BHP or either or each of them in that conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition within the meaning of section 47 of the Trade Practices Act and the Competition Code;
(j)	to acquire or acquiring or offering to acquire gas from Esso and BHP jointly or from

attempting to acquire or attempting to offer gas supply contract which contains a specified supply exclusivity provision where the engaging by GASCOR in that conduct has the purpose, or has or is likely to have the

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effect, of substantially lessening competition
within the meaning of section 47 of the
Trade Practices Act and the Competition

Code;

(k)	attempting to make or making a gas supply contract which contains a provision that gas is to be supplied jointly by Esso and BHP to GASCOR;
(l)	attempting to give or giving effect to a provision of a gas supply contract that gas is to be supplied jointly by Esso and BHP to GASCOR.

7. Expiry

These Regulations cease to have effect on 20

November 1997.

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