Gas Amendment Act 2001 (TAS)

Gas Amendment Act 2001

An Act to amend the Gas Act 2000

[Royal Assent 16 July 2001]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short titleThis Act may be cited as the Gas Amendment Act 2001 . 2CommencementThis Act commences on the day on which this Act receives the Royal Assent. 3Principal ActIn this Act, the Gas Act 2000 is referred to as the Principal Act. 4Section 3 amended (Interpretation) Section 3(1) of the Principal Act is amended as follows: (a) by inserting the following definition after the definition of authorised officer : Commission means the Resource Planning and Development Commission; (b) by omitting "(that is not a pipeline declared by the regulations to be, or form part of, a distribution system)" from paragraph (a) of the definition of distribution system ; (c) by inserting the following definition after the definition of facility : function includes duty; (d) by inserting the following definition after the definition of gas officer : gas-pricing order means an order made by the Minister under section 20A ; (e) by omitting the definition of Pricing Regulator ; (f) by inserting the following definition after the definition of regulations : Regulator means the person holding the office of local Regulator under the Gas Pipelines Access (Tasmania) Act 2000 ; 5Section 7 substituted Section 7 of the Principal Act is repealed and the following section is substituted: 7Director of Gas (1)  The Minister is to appoint a person to be the Director of Gas. (2)  The Director is to perform the functions imposed, and may exercise the powers conferred, on the Director under this Act. (3)  Except with the written permission of the Minister, the Director may not hold any other appointment, office or position in respect of which he or she receives remuneration. (4)  Despite subsection (3) , the Director may hold that office in conjunction with State Service employment. (5)  Except as provided by subsection (4) , the State Service Act 2000 does not apply in respect of the Director. 6Section 8 amended (Functions of Director of Gas) Section 8 of the Principal Act is amended as follows: (a) by omitting paragraph (b) from subsection (1) and substituting the following paragraph: (b) the establishment, monitoring and publication of standards and codes in respect of services provided by gas entities to customers or arising from any functions performed for the purposes of this Act; (b) by inserting the following subsection after subsection (2) : (2A)  The Minister may give directions to the Director of Gas with respect to the carrying out of his or her functions and powers under this Act, except functions and powers under section 24 , and, in carrying out those functions and powers, the Director must comply with any directions so given. 7Section 9 substituted Section 9 of the Principal Act is repealed and the following section is substituted: 9Director of Gas Safety (1)  The Minister is to appoint a State Service officer or State Service employee to be Director of Gas Safety and that officer or employee holds that office in conjunction with State Service employment. (2)  The Director is to perform the functions imposed, and may exercise the powers conferred, on the Director under this Act. 8Part 2, Division 4: Heading amended Division 4 of Part 2 of the Principal Act is amended by omitting "Pricing Regulator" from the heading to that Division and substituting "The Regulator". 9Section 17 repealed Section 17 of the Principal Act is repealed. 10Section 18 substituted Section 18 of the Principal Act is repealed and the following section is substituted: 18Regulator to administer gas-pricing order The Regulator is to administer a gas-pricing order in accordance with the order. 11Part 2, Division 5 insertedAfter section 20 of the Principal Act , the following Division is inserted in Part 2: Division 5Gas-pricing orders 20APower of Minister to make gas-pricing order (1)  In this section, price includes a price range. (2)  The Minister may, by order published in the Gazette, regulate prices, conditions relating to prices and price-fixing factors in respect of the distribution or the sale by retail of gas by a gas entity that holds a licence under which an exclusive franchise under section 30 is, or was, granted. (3)  A gas-pricing order is to specify the period for which the order is to remain in force, which may be longer than the period for which the exclusive franchise is granted. (4)  A gas-pricing order may regulate prices, conditions relating to prices and price-fixing factors in any manner that the Minister considers appropriate, including – (a) fixing a price or the rate of increase or decrease in a price; or (b) fixing a maximum price or maximum rate of increase or minimum rate of decrease in a maximum price; or (c) fixing an average price for specified goods or services or an average rate of increase or decrease in an average price; or (d) specifying pricing policies or principles; or (e) specifying an amount determined by reference to quantity, location, period or any other specified factor relevant to the supply of specified goods or services; or (f) specifying a margin or component by reference to which a price is to be determined; or (g) fixing a maximum revenue, or maximum rate of increase or minimum rate of decrease in maximum revenue, in relation to specified goods or services; or (h) specifying matters to be taken into account in altering tariffs, introducing new tariffs, closing tariffs or assigning tariffs to customers; or (i) providing for approval by the Regulator of alterations to prices to take account of changes in costs incurred by a gas entity. (5)  A gas-pricing order may provide that a calculation is to be performed, or a matter is to be determined, by the Regulator in a manner specified by the order. (6)  A gas-pricing order may require a gas entity to provide information to other gas entities, customers or others, or generally publish information, relating to prices, conditions relating to prices and price-fixing factors. 20BProvisions as to gas-pricing orders (1)  A gas-pricing order takes effect on a date specified in the order. (2)  Notice of the making of a gas-pricing order must be published in a newspaper circulating generally in Tasmania. (3)  The notice must include a brief description of the nature and effect of the gas-pricing order and state how a copy of the order may be inspected or purchased. (4)  The Minister must – (a) serve a copy of a gas-pricing order on each gas entity to which the order applies; and (b) ensure that copies of the order are available for inspection and purchase by members of the public. (5)  A gas entity must not contravene a gas-pricing order or part of a gas-pricing order that applies to the entity.

Penalty:  Fine not exceeding 500 penalty units and a daily penalty not exceeding 200 penalty units for each day during which the offence continues after conviction.

(6)  The Regulator must perform any functions and exercise any powers that a gas-pricing order provides will be performed or exercised by the Regulator for the purposes of the order. (7)  In the performance of functions and exercise of powers under a gas-pricing order, the Regulator must endeavour to act in a fair and equitable manner taking proper account of the interests of participants in the gas supply industry and the interests of consumers of gas. (8)  Nothing in subsection (7) gives rise to, or can be taken into account in, any civil cause of action. (9)  In the performance of functions and exercise of powers under a gas-pricing order, the Regulator is not subject to the direction of the Minister or any other person. (10)  A gas-pricing order is not a statutory rule within the meaning of the Rules Publication Act 1953 . (11)  The provisions of the Acts Interpretation Act 1931 apply to a gas-pricing order as if the order were a regulation. (12)  If the provisions of a gas-pricing order are inconsistent with an access arrangement approved under the Code, within the meaning of the Gas Pipelines Access (Tasmania) Law, those provisions have no effect to the extent of the inconsistency. 12Section 30 substituted Section 30 of the Principal Act is repealed and the following section is substituted: 30Licences conferring exclusive franchise (1)  The Minister may, by order published in the Gazette, determine that a person who has been selected by tender should have an exclusive franchise to undertake or carry on an activity for which a licence is required under section 21 . (2)  The franchise may be expressed to be exclusive to such extent as is specified in the order. (3)  The order – (a) is to specify the person to whom the exclusive franchise is to be granted; and (b) is to specify the area within which the exclusive franchise applies; and (c) is to specify the period of the exclusive franchise; and (d) is to contain any other conditions which the Minister requires the Director of Gas to include in the licence under which the exclusive franchise is to be granted. (4)  The Director of Gas must exercise his or her powers under this Act so as to give effect to the order. (5)  The Minister may require the payment of a fee for the grant of an exclusive franchise and may direct the Director of Gas not to grant the proposed licence until the fee is paid. (6)  The period of an exclusive franchise need not be the same as the period of the licence under which the exclusive franchise is granted. (7)  An exclusive franchise may be subject to conditions – (a) requiring or relating to standard contractual terms and conditions to apply to the retailing of gas to non-contestable customers or customers of a prescribed class; or (b) requiring the gas entity to comply with specified minimum standards of service in respect of the entity’s non-contestable customers or customers of a prescribed class, and requiring monitoring and reporting of levels of compliance with those standards. 13Section 31 amended (Obligation to supply within exclusive franchise area) Section 31(1) of the Principal Act is amended by omitting "right" and substituting "franchise". 14Section 38 amended (Standard terms and conditions for retailing gas) Section 38(2) of the Principal Act is amended by omitting paragraph (b) . 15Section 46 amended (Suspension or cancellation of licences) Section 46(1) of the Principal Act is amended by inserting after paragraph (c) the following paragraph: (ca) the holder of the licence has failed to commence operations as authorised by the licence; or 16Section 86 substituted Section 86 of the Principal Act is repealed and the following section is substituted: 86Planning approval for gas infrastructure (1)  For the purposes of facilitating the development of gas infrastructure, an application for a permit in respect of the construction or operation of all or part of a distribution system is taken to be a use or development for which a planning authority is bound to grant a permit either unconditionally or subject to conditions or restrictions. (2)  Where a planning authority receives an application for a permit in respect of the construction of all or part of a distribution system, the planning authority must advise the Commission of the receipt of that application. (3)  As soon as practicable after receipt of the advice referred to in subsection (2) , the Commission must, in consultation with the relevant planning authority, amend each relevant planning scheme or special planning order to remove any inconsistency between the scheme or order and the development of the gas infrastructure. (4)  The Land Use Planning and Approvals Act 1993 does not apply to an amendment made under subsection (3) . (5)  Where the Commission amends a planning scheme or special planning order under subsection (3)  – (a) the amendment is taken to have come into operation on the date on which the application for a permit referred to in subsection (1) was made; and (b) the Commission must give notice of the amendment – (i) in a daily newspaper circulating generally in the area to which the planning scheme or special planning order relates; and (ii) at the office of the Commission and the office of the planning authority which administers the planning scheme or special planning order. 17Section 102A insertedBefore section 103 of the Principal Act , the following section is inserted in Division 1: 102AInterpretation In this Division, appropriate authority means – (a) the Director of Gas; or (b) the Director of Gas Safety; or (c) the Regulator, in respect of a decision made for the purposes of a gas-pricing order – as may be appropriate. 18Section 103 amended (Interested person) Section 103(1) of the Principal Act is amended by omitting "Director of Gas, the Director of Gas Safety" and substituting "appropriate authority". 19Section 104 amended (Statement of reasons for decision) Section 104 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "relevant Director" and substituting "appropriate authority"; (b) by omitting from subsection (3) "relevant Director" and substituting "appropriate authority". 20Section 106 amended (Stay of operation) Section 106(2) of the Principal Act is amended by omitting “relevant Director’s opinion” and substituting "opinion of the appropriate authority". 21Section 107 amended (Reference of application for mediation) Section 107(2) of the Principal Act is amended by omitting "relevant Director" and substituting "appropriate authority". 22Section 108 amended (Administrative review by Director) Section 108(2) of the Principal Act is amended by omitting "relevant Director" and substituting "appropriate authority". 23Section 111 substituted Section 111 of the Principal Act is repealed and the following section is substituted: 111Appeal against decisions (1)  An interested person who is dissatisfied with a decision made by the Director of Gas, the Director of Gas Safety or an authorised officer on administrative review may, subject to this Act, appeal against the decision to the Minister. (2)  An interested person who is dissatisfied with a decision of the Regulator on administrative review of a decision made for the purposes of a gas-pricing order may, subject to this Act, appeal against the decision – (a) to a tribunal or other authority prescribed by the regulations; or (b) if there are no such regulations, to the Minister. 24Section 115 amended (Reference to Tribunal) Section 115(1) of the Principal Act is amended by inserting ", other than a decision of the Regulator made for the purposes of a gas-pricing order," after "matter". 25Consequential amendments relating to Pricing RegulatorEach of the provisions of the Principal Act specified in Column 1 of Schedule 1 is amended by omitting "Pricing" on the number of occurrences specified in Column 2 of that Schedule . 26Consequential amendments relating to appropriate authorityEach of the provisions of the Principal Act specified in Column 1 of Schedule 2 is amended by omitting "Director of Gas or the Director of Gas Safety" on the number of occurrences specified in Column 2 of that Schedule and substituting "appropriate authority". Schedule 1Consequential amendments relating to Pricing Regulator

Section 25

Column 1

Provision amended

Column 2

Number of occurrences

Section 13(2)

2

Section 19(1)

3

Section 20(1)

1

Section 20(3)

1

Section 129

3

Schedule 2Consequential amendments relating to appropriate authority

Section 26

Column 1

Provision amended

Column 2

Number of occurrences

Section 105(1)

1

Section 106(1)

1

Section 107(1)

1

Section 108(1)

1

Section 109

1

[Second reading presentation speech made in:

House of Assembly on 20 JUNE 2001

Legislative Council on 26 JUNE 2001]