Energy Legislation Amendment Act 2003 (WA)

Western Australia

Energy Legislation Amendment Act 2003

Western Australia

Energy Legislation Amendment Act 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

11VA.

Amendment of licence on application of

licensee

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

Energy Legislation Amendment Act 2003

Contents

Division 2 — Retail Market Schemes

15.

Part 2B inserted

Part 2B — Gas supply: retail market schemes

Division 1 — Preliminary

11ZOA.

Definitions

Division 2 — Purpose and content of a retail

market scheme

11ZOB.	Purpose of retail market scheme	9
11ZOC.	Persons required to comply with a retail
market scheme	9
11ZOD.	Persons required to comply with retail
market rules	10
11ZOE.	Exception to requirement for a scheme	11
11ZOF.	Elements of retail market scheme	11
11ZOG.	Requirements for retail market rules	12
11ZOH.	Regulations for retail market scheme or
rules	14

Division 3 — Preparation, approval, review and

amendment of retail market schemes

11ZOI.

Submission of retail market scheme for

approval

11ZOJ.

Approval of retail market schemes

11ZOK.

Commencement of retail market schemes

11ZOL.

Submission of amendment for approval

11ZOM.

Approval of amendment

11ZON.

Prerequisites to approval of scheme

11ZOO.

Prerequisites to approval of amendment

11ZOP.

Matters to which Minister is to have regard

11ZOQ.

Review of scheme

Division 4 — Enforcement

Subdivision 1 — Enforcement of requirements for

membership of scheme

11ZOR.	Membership required	20
11ZOS.	Power to exempt	21
11ZOT.	Enforcement of section 11ZOR	22

Subdivision 2 — Enforcement of retail market

scheme and rules

11ZOU.

Minister may impose penalty for breach

Subdivision 3 — Prohibition of certain conduct in

relation to a retail market scheme

11ZOV.

Conduct preventing or hindering operation

11ZOW. Interpretation of section 11ZOV

11ZOX.	Establishing purpose of conduct	26
11ZOY.	Remedies for breach of section 11ZOV	26

Energy Legislation Amendment Act 2003

Contents

Division 5 — Directions

Subdivision 1 — Directions to amend

retail market scheme

11ZOZ.	Minister may direct amendment	27
11ZP.	Non-compliance with direction for
amendment	27

Subdivision 2 — Directions as to operation of

retail market scheme

11ZPA.	Directions to governing body of a scheme	28
11ZPB.	Enforcement of directions	29

Division 6 — Review of certain decisions

11ZPC.	Definition	30
11ZPD.	Review of decision to refuse approval	30
11ZPE.	Review of direction to amend scheme	31
11ZPF.	Review of penalty	31
11ZPG.	Time for making application	31
11ZPH.	Conduct of review	31

Division 7 — Regulations for operation of

retail gas market

11ZPI.	Regulations for retail gas market	32
11ZPJ.	Grounds for Minister’s recommendation	32
11ZPK.	Regulations override scheme etc.	33

16.	Schedule 2A inserted	33
Schedule 2A — Remedies for contravention of

section 11ZOV

1.	Definition	33
2.	Actions for damages for contravention of
section 11ZOV	34
3.	Injunction	34
4.	Declaratory relief	35

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

11ZPH.

Conduct of review

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

Energy Legislation Amendment Act 2003

Contents

Division 4 — Supply contracts for small use

customers

27.	Section 11L amended	39
28.	Part 2A Division 4A inserted	40
Division 4A — Supply contracts for small use

customers

Subdivision 1 — Preliminary

11WB.

Definitions

Subdivision 2 — Requirements for supply contracts

11WC.	Regulations as to supply contracts	40
11WD.	Form of contract to be submitted with
application for grant, renewal or transfer	41
11WE.	Licence application not to be granted
unless standard form contract approved	42
11WF.	Approval of standard form contract	42
11WG.	Licence conditions	42
11WH.	Amendment or replacement of standard
form contract	43
11WI.	Authority may direct that amendment be
made	43

Subdivision 3 — Default supplier

11WJ.	Definitions	44
11WK.	Deemed contract where customer takes
gas without making arrangements	44
11WL.	Determination of default supplier	45

29.	Section 11ZH amended	46
30.	Schedule 1 amended	46
Division 5 — Gas marketing code of conduct
31.	Part 2C inserted	47
Part 2C — Code of conduct for marketing of gas to

small use customers

11ZPL.	Definitions	47
11ZPM.	Code of conduct	48
11ZPN.	Code is subsidiary legislation	49
11ZPO.	Consultative committee	49
11ZPP.	Licence condition	49
11ZPQ.	Enforcement of code of conduct against
marketing agents	50
11ZPR.	Code may provide for vicarious liability	50
11ZPS.	Code may include presumption of
authority	50
11ZPT.	Authority to monitor compliance	50
11ZPU.	Comment to be sought on amendment or
replacement of code	51
11ZPV.	Review of code	51

Energy Legislation Amendment Act 2003

Contents

11ZPW.

Further provisions about opportunity to

comment

Division 6 — Gas industry ombudsman scheme

32.

Part 2D inserted

Part 2D — Gas industry ombudsman scheme

Division 1 — Preliminary

11ZPX.	Definitions	53
11ZPY.	Regulations as to gas industry
ombudsman scheme	54

Division 2 — Approval of gas industry

ombudsman scheme

11ZPZ.	Authority may approve scheme	54
11ZQ.	Requirements for scheme to be approved
etc.	55
11ZQA.	Revocation of approval	55

Division 3 — Scheme operation

11ZQB.

Customer may have decision or complaint

reviewed

11ZQC.

Jurisdiction of courts

11ZQD.

Enforcement against marketing agents

and others

11ZQE.

Authority to monitor compliance with

decisions

Division 4 — Membership of approved scheme by

licensee

11ZQF.

Proof of membership in applications

relating to licence

11ZQG.

Prerequisite to grant etc. of licence

11ZQH.

Licence condition

33.	Schedule 2B inserted	58
Schedule 2B — Objectives to be met by gas industry

ombudsman scheme

Objectives stated

34.

Parliamentary Commissioner Act 1971 amended

34.

Gas industry ombudsman scheme

Division 7 — Recovery of costs

35.	Section 11Q amended	61
36.	Part 2A Division 4C inserted	62
Division 4C — Recovery of costs

11WR.

Regulations may authorise recovery of

costs

Division 8 — Last resort supply

37.

Part 2A Division 6A inserted

Energy Legislation Amendment Act 2003

Contents

Division 6A — Last resort supply arrangements

11ZAA.	Definition	63
11ZAB.	Authority to ensure supply plan in place	63
11ZAC.	Requirements for last resort supply plan	63
11ZAD.	How plan brought into operation	64
11ZAE.	Designation of licensee as supplier of last
resort	65
11ZAF.	Functions of supplier of last resort	65
11ZAG.	Approval or determination of plan	65
11ZAH.	Amendment of plan by supplier	66
11ZAI.	Authority may make amendment	66
11ZAJ.	Licence condition	66
11ZAK.	Provision may be made by regulation	67

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

16. Regulations for the commingling of gas in

distribution systems

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

Energy Legislation Amendment Act 2003

Contents

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
Division 4B — Exclusive licences

11WM.

Regulations may authorise an exclusive

licence

11WN.

Requirements for regulations

11WO.

Application for and grant of licence

11WP.

Prohibition of further licences

11WQ.

Trade practices exemption

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

20A.

Definition

68.	Section 21 amended	84
69.	Section 22 replaced	84

22.

Trade secrets

Energy Legislation Amendment Act 2003

Contents

70.	Section 23 amended	85
71.	Section 24 amended	85
72.	Sections 24AA, 24AB and 24AC inserted	86

24AA.	Protection of trade secrets	86
24AB.	Disclosure of information in the public
interest	86
24AC.	Review of determination	87

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

10. Advice of Minerals Research Advisory

Committee

78.	Section 12 amended	91
79.	Section 16 amended	91
80.	Sections 18 and 19 replaced and saving provision	91

18.	Minerals Research Advisory Committee	91
19.	Other advisory committees	92

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
Part VIII — Savings

41.

Savings for secrecy provisions

89.	Schedules 1 and 2 repealed	95
90.	Various references to Department of Mines
amended	95

Energy Legislation Amendment Act 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
Schedule 1 — Coordinator’s functions in respect

of sustainable energy research

1.	Definitions	96
2.	Research functions	97
3.	Power to direct researcher	98
4.	Trusts and conditions	98
5.	Provision of information to the Coordinator	98
6.	Termination of assistance by the
Coordinator	99
7.	Researchers to maintain confidentiality	99
8.	Protection of trade secrets	100
9.	Other requests for confidentiality	100
10.	Records to be maintained	101

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

70A.

Provision of information in compiled form

105

106.	Section 73 amended	106
107.	Section 89 amended	107
108.	Section 95 amended	108
109.	Schedule 5 amended	109

Energy Legislation Amendment Act 2003

Contents

2A.

Costs of corporation in connection with

application

109

110.

Schedule 6 amended

110

2A.

Costs of corporation in connection with

application

111

Obligation to provide information

111

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

Western Australia

Energy Legislation Amendment Act 2003

No. 53 of 2003

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.

[Assented to 8 October 2003]

The Parliament of Western Australia enacts as follows:

Energy Legislation Amendment Act 2003

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1. Short title

This Act may be cited as the Energy Legislation Amendment

Act 2003.

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 —

(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

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.

Energy Legislation Amendment Act 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*.

[* 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.]

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 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 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

condition to which it is subject is not being observed.

”.

Energy Legislation Amendment Act 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 —

“

(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,

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 supply circumstances.

”.

6. Section 11P amended

(1)

Section 11P is amended by inserting before “An” the subsection

designation “(1)”.

(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.

”.

7. Section 11R amended

After section 11R(3) the following subsection is inserted —

“

(4)	An applicant must also provide such other information as the Authority may request for the proper consideration of the application.

Energy Legislation Amendment Act 2003

Amendments relating to gas supply licensing

Part 2

”.

8. Section 11S amended

After section 11S(2) the following subsection is inserted —

“

(3)	The duties imposed on the Authority by subsections (1) 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 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.

”.

9. Section 11VA inserted

After section 11V the following section is inserted —

“

11VA.

Amendment of licence on application of licensee

(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
(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.

Energy Legislation Amendment Act 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 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 accordance with the procedure specified in the regulations.

”.

10. Section 11W amended

Section 11W(1) is amended by inserting after “may” the

following —

“ , on its own initiative, ”.

11. Section 11ZH amended

(1)	After section 11ZH(2)(b) the following paragraph is inserted —

“

(ba)	to refuse to amend a licence under section 11VA;

”.

(2)	Section 11ZH(13) is repealed and the following subsection is inserted instead —

“

(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 proceedings under this section.

”.

Energy Legislation Amendment Act 2003

Amendments to facilitate a contestable retail gas market, and

Part 3

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

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

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 —

“

•	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 customer disputes;
•	other regulation of the gas supply industry;

”.

14. Section 3 amended

Section 3 is amended in paragraph (b) of the definition of

“supply” by deleting “to small use customers”.

Energy Legislation Amendment Act 2003

Part 3	Amendments to facilitate a contestable retail gas market, and
Division 2	Retail Market Schemes
s. 15
Division 2 — Retail Market Schemes

15. Part 2B inserted

After Part 2A the following Part is inserted —

“

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

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 —

(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 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);

“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);

Energy Legislation Amendment Act 2003

Amendments to facilitate a contestable retail gas market, and

Part 3

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;

“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 scheme;

“retail market scheme” means a scheme of the kind described in section 11ZOF.

Division 2 — Purpose and content of a retail

market scheme

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 —

(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

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

scheme for a distribution system —

(a)	a person (a “gas distribution operator”) who is required to hold a distribution licence for that system; and

Energy Legislation Amendment Act 2003

Part 3

Amendments to facilitate a contestable retail gas market, and

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

(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 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;

(b)	any other person (a “prescribed person”) who —

(i) is prescribed; or

(ii) belongs to a class of persons that is prescribed,

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 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.

(3)	This section has effect subject to any exemption granted under section 11ZOS.

Energy Legislation Amendment Act 2003

Amendments to facilitate a contestable retail gas market, and

Part 3

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 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

(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;
(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.

(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

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 provisions,

to achieve the purposes set out in section 11ZOB.

Energy Legislation Amendment Act 2003

Part 3	Amendments to facilitate a contestable retail gas market, and
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;
(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;
(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;
(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

(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
(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 for and in relation to —

(a)	the roles and functions of each kind of gas business operator;

Energy Legislation Amendment Act 2003

Amendments to facilitate a contestable retail gas market, and

Part 3

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

(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 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 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

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;
(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;

(i) monitoring compliance with the retail market rules;

(j)	the enforcement of the retail market rules, including by the imposition of penalties; and

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(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.

(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 scheme or in retail market rules of a provision —

(i) of a particular kind;

(ii) having a particular effect or operation; or

(iii) relating to a particular matter or particular circumstances;

(b)	making any provision that —

(i) facilitates the operation of a retail market scheme or retail market rules; and

(ii)

cannot be included in the scheme or section 11ZOF or 11ZOG.

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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 system may be submitted to the Minister for approval by —

(a) the members of; or

(b) the formal entity for,

the proposed scheme.

(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

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.

(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 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 consulted under subsection (3); or

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(ii) meets any criteria in relation to the requirement for consultation that are prescribed for the purposes of this subparagraph.

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
(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 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 —

(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.

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

subsection (1).

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(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 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

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

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 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 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 purposes of this paragraph.

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(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

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 changed form; or

11ZON. Prerequisites to approval of scheme

The Minister may approve a retail market scheme

under section 11ZOJ only if the Minister is satisfied —

(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 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 agreed, if the scheme is approved, to comply with the relevant provisions of the retail market rules made as part of the scheme; or

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(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 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 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 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 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
(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 considered.

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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; and
(b)	such other matters as the Minister considers relevant,

when determining whether or not to give an approval

under section 11ZOJ or 11ZOM.

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

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

11ZOR. Membership required

(1)	A gas distribution operator contravenes this section if the operator —

(a)	transports gas through a distribution system; and
(b)	is not a member of an approved retail market scheme in force for that system.

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(2)	A retail gas operator contravenes this section if the operator —

(a)	sells gas that is transported through a distribution system; and
(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.

(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 —

(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

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 —

(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 one or more of the matters referred to in section 11H(3).

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(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.
(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 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 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 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.
(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.

(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.

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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 —

(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

(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

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 —

(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 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.

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(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

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 —

(a) preventing or hindering;

(b)	attempting to prevent or hinder; or

(c)

the operation of a retail market scheme in accordance

with section 11ZOB.

conspiring with others to prevent or hinder,

(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 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 —

(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

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(c)	an associate of —

(i) a gas business operator referred to in paragraph (a); or

(ii) a person referred to in paragraph (b).

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,

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 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;

(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 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) and 17 of that Act were repealed.

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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 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, 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

(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

(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

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 matter or thing; or

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(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

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.

(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

(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

$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
(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

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(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

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 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

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 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 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 —

(a)	to achieve any of the purposes set out in section 11ZOB;

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(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 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

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,

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 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.

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
the Minister, but not exceeding $100 000.

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(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 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

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 —

“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

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

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.

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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

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

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

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.

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)

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.

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Division 7 — Regulations for operation of

retail gas market

11ZPI.

Regulations for retail gas market

(1)

On the recommendation of the Minister, regulations 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;

(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 —

(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 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

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 —

(a)	any approved retail market scheme for that system —

(i) has ceased to be suitable for the purposes of section 11ZOB; or

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(ii) is not being implemented in a manner that is suitable for those purposes;

(b)	the formal entity for an approved retail market scheme for that system —

(i) is not functioning effectively; or

(ii) is subject to external administration under the Corporations Act 2001 of the Commonwealth.

(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

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
(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 —

“

Schedule 2A — Remedies for contravention of

section 11ZOV

[s. 11ZOY]

1. Definition

In this Schedule —

“Court” means the Supreme Court.

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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

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

(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.
(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 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 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 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);

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(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 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 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 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

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
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 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;

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(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;
(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

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;

“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;

“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

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 —

“ Authority ”.

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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 ”.

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

instead —

“

11ZPH. Conduct of review

The provisions of section 11ZH, other than

subsections (1), (2) and (2a), 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)

of that section.

”.

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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

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

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

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

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.

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

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(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
(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

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.

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

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

27. Section 11L amended

Section 11L(2)(b)(ii) is deleted.

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28. Part 2A Division 4A inserted

After Part 2A Division 4 the following Division is inserted —

“

Division 4A — Supply contracts for small use customers

Subdivision 1 — Preliminary

11WB. Definitions

In this Division, unless the contrary intention

appears —

“customer” means a small use customer;

“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.

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

(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 after it is entered into (a “cooling-off period”);
(c)	the supply of gas, and payment for gas supplied, during a cooling-off period;

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(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 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 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 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 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

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

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.

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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

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 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

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 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.

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 —

(a)	a standard form contract in a form that has been approved under this Division; or

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(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

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
(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

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
(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 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 —

(a)	no longer meets the requirements of the regulations in respect of such contracts; or

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(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.

(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
(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 suitable for approval.

Subdivision 3 — Default supplier

11WJ. Definitions

In this Subdivision —

“delivery point” means a point on a pipeline in a 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

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 contract for that supply with the holder of a trading licence.

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(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.

(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 subject to a non-standard contract with that supplier.

(a)	to an account —

(i) established under section 15B of the Financial Administration and Audit Act 1985; and

(ii)	Service principally assisting the Minister in the

administered by the Department of the Public Act 1994;

(b)	to the Consolidated Fund.

(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

for the administration of the Minerals and Energy Research

Act 1987.

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(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 —

(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 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

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.

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
(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 otherwise requires, a reference to the Coordinator.

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Part 7 — Amendments and validation provision

relating to Western Power Corporation

Division 1 — Electricity Corporation Act 1994

102. The Act amended

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

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 —

“

(2a)	A request under subsection (2)(a) may specify a time before which the information is to be furnished.

”.

105. Section 70A inserted

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 —

(a)	is not itself in the possession of the corporation or a subsidiary; but

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(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 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
(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.
(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 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 information is furnished under that section.

”.

106. Section 73 amended

Section 73(1)(a) is amended by inserting after “70,” —

“ 70A, ”.

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107. Section 89 amended

(1)	Section 89(1) is amended by deleting the definition of “electricity distribution system” and inserting the following definition instead — “

“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 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

of electricity to or from any part

referred to in paragraph (a); or

(II)

for a purpose related to such

transfer;

and

(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 “electricity transmission system” and inserting the following definition instead — “

“electricity transmission 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 regulations for the purposes of this paragraph; and

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(b)	plant and equipment that is —

(i) used by the corporation —

(I)

in connection with the transfer

of electricity to or from any part

referred to in paragraph (a); or

(II)

for a purpose related to such

transfer;

and

(ii) prescribed, or of a kind that is 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 — “

“prescribed pricing policy” means a policy or

practice of charging different prices to different

users or classes of users in different circumstances

that is —

(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

Section 95(3) is amended as follows:

(a)	after paragraph (b) by inserting —

“

(ba)	the protection and immunities of the referee;

”;

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(b)	by deleting paragraph (h)(ii) and inserting instead —

“

(ii) in relation to witnesses —

(I)	the compulsion to attend or to both attend and produce documents; and

(II) their examination and

cross-examination on oath or

affirmation;

”;

(c)	after paragraph (h) by inserting —

“

(ha)	the protection, immunities and liabilities of witnesses;

”.

109. Schedule 5 amended

(1)	The amendments in this section are to Schedule 5.
(2)	After clause 2(1) the following subclause is inserted —

“

(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 —

“

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 —

(a)	at the time of making the application; or
(b)	at the time or times otherwise provided by the regulations,

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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.

(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(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 —

“

(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.

(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.

”.

110. Schedule 6 amended

(1)	The amendments in this section are to Schedule 6.
(2)	After clause 2(1) the following subclause is inserted —

“

(1a)	It is not discriminatory for the corporation to make access available under subclause (1) on the basis of a prescribed pricing policy.

”.

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(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 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,

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.

(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 instead —

“

4. Obligation to provide information

(1)

Any existing or prospective user may request the

corporation to provide a report and forecast of electricity

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

subclause (2), the corporation must comply with a request

under subclause (1) within the prescribed number of days

after the request is made.

”.

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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 ”.

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.

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 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

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 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

supply on such terms and conditions as the energy

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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.

”.

(3)	After section 58(3) the following subsection is inserted —

“

(3a)	In subsection (3) —
“appropriate network development” means

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

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.

”.

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 —

“

anticipates will be the cost of appropriate

network development;

”.

(2)	After section 61(1) the following subsection is inserted —

“

(1a)	In subsection (1)(b) —
“appropriate network development” means

extending, or increasing the capacity of, the supply

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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

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 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 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,

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 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 are inserted instead —

“

(4)	Where as the result of —

(a)	a computation made under subsection (2a)(a); or

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s. 115

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

correctly registering the extent and value of the energy

supplied, and —

(b)

(c)	shall be credited; or

(d) may be recovered,

accordingly, as the case requires.

(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,

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.

(5a)	The energy operator is to determine —

(a)	correctly registering the extent and value of the

the period during which the meter was not subsection (4); or

(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.

Energy Legislation Amendment Act 2003

Part 7	Amendments and validation provision relating to Western
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 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 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,

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;
(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.

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 61(1) of the principal Act; and

Energy Legislation Amendment Act 2003

Amendments and validation provision relating to Western

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.

(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.
(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

term in section 4(1) of the principal Act.

Energy Legislation Amendment Act 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*.

[* 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

(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

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” —

“

repealed by section 93 of the Gas

Corporation (Business Disposal) Act 1999

”.