Moomba-Sydney Pipeline System Sale Regulations (Cth)

Statutory Rules 1996

No. 19 1

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Moomba-Sydney Pipeline System Sale Regulations

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Moomba-Sydney Pipeline System Sale Act 1994.

Dated 24 January 1996.

 BILL HAYDEN

 Governor-General

By His Excellency’s Command,

R. McMULLAN

Minister for Trade for the

Assistant Treasurer

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Citation

 1. These Regulations may be cited as the Moomba-Sydney Pipeline System Sale Regulations.

[NOTE: These Regulations commence on gazettal: see Acts Interpretation Act 1901, s. 48.]

Interpretation

 2.(1) In these Regulations, unless the contrary intention appears:

“Act” means the Moomba-Sydney Pipeline System Sale Act 1994;

“review” means a review by the Tribunal, under Division 5 of Part 6 of the Act, of a determination by the ACCC under section 80 of the Act.

 (2) An expression that:

• (a)

  appears, in relation to the Tribunal, in these Regulations and in the Trade Practices Act 1974; and

• (b)

  is defined in that Act;

has the same meaning in these Regulations as it has in that Act.

 (3) An expression that:

• (a)

  appears in these Regulations and in Part 6 of the Act; and

• (b)

  is defined, for the purposes of that Part, in that Part;

has the same meaning in these Regulations as it has in that Part.

 (4) In these Regulations, a reference to a form by number is a reference to the form so numbered in the Schedule.

Notification of access dispute

 3.(1) A notification under section 75 of the Act of an access dispute in respect of haulage services must include the following information:

• (a)

  the name of the person notifying the dispute (in this regulation called “the notifier”) and, if the notifier is not an individual, the name and contact details of a contact person for the notifier;

• (b)

  the notifier’s address for the delivery of documents relating to matters arising out of the notification;

• (c)

  if the notifier is not a Moomba operator—a short description of the business (existing and anticipated) of the notifier;

• (d)

  a description of the Moomba pipeline concerned;

• (e)

  if the notifier is a Moomba operator and does not own the Moomba pipeline concerned—the name of the owner, or of each owner, of the pipeline, as the case requires;

• (f)

  a description of the access dispute, including whether the dispute is about:

  • (i)

    varying an existing determination by the ACCC under section 80 of the Act in respect of the Moomba pipeline concerned; or

  • (ii)

    the existence of spare capacity in the Moomba pipeline concerned sufficient to provide the services requested; or

  • (iii)

    the interconnection of a pipeline to the Moomba pipeline concerned; or

  • (iv)

    increasing the capacity of the Moomba pipeline concerned; or

  • (v)

    terms and conditions (including the haulage charge) for the supply of haulage services by the operator that uses the whole or part of the spare capacity or increased capacity in the Moomba pipeline concerned (including the period of supply of those services and the delivery points); or

  • (vi)

    the Moomba operator entering into an agreement with a person for the supply of haulage services;

• (g)

  if the dispute is about the existence of spare capacity in the Moomba pipeline concerned and the notifier is the Moomba operator—an estimate of the volume of any spare capacity and the method used for working out that volume;

• (h)

  a description of efforts, if any, to resolve the dispute;

• (j)

  to the best of the notifier’s knowledge, particulars of any person who is a party to an agreement for the supply of haulage services by the Moomba operator in relation to the Moomba pipeline concerned;

• (k)

  if access would involve increasing the capacity of the Moomba pipeline—a description or estimate of the direct costs of establishing and maintaining the increased capacity, indicating who would bear those costs;

• (l)

  if the notifier is not the Moomba operator—a short description of the benefits from requiring the Moomba operator to supply haulage services, or to increase the supply of haulage services, as the case requires, in relation to the Moomba pipeline concerned.

 (2) The notifier must pay to the ACCC, in respect of a notification:

• (a)

  if the access dispute is about varying an existing determination by the ACCC under section 80 of the Act in respect of the Moomba pipeline concerned—a fee of $5,000; or

• (b)

  in any other case—a fee of $15,000.

 (3) A fee under subregulation (2) is payable at the time of giving the notification.

 (4) If, under section 77 of the Act, a notification is withdrawn before any arbitration hearing in relation to the access dispute that is the subject of the notification, the ACCC must remit to the notifier:

• (a)

  if a fee has been paid under paragraph (2) (a)—the sum of $2,250; or

• (b)

  if a fee has been paid under paragraph (2) (b)—the sum of $12,250.

Withdrawal of notification

 4.(1) A withdrawal of a notification under section 77 of the Act (other than a withdrawal referred to in subsection 91 (2) or 104 (5) of the Act):

• (a)

  must be by notice in writing to the ACCC; and

• (b)

  must include the following information:

  • (i)

    the name of the person withdrawing the notification;

  • (ii)

    a short description of the access dispute to which the withdrawal relates.

 (2) At the time of giving a notice of withdrawal to the ACCC under subregulation (1), the person withdrawing the notification must give a copy of the notice to any person to whom the ACCC has given written notice, under section 76 of the Act, of the access dispute.

 (3) A notice of withdrawal takes effect when it is received by the ACCC.

Summons to witness—access arbitration

 5.(1) A summons under subsection 98 (2) of the Act must be in accordance with Form 1.

 (2) A summons must be served on a person by:

• (a)

  delivering a copy of the summons to the person personally; and

• (b)

  showing the original of the summons to the person at the time at which the copy is delivered to the person.

Application for review

 6.(1) An application, under section 105 of the Act, for a review of a determination by the ACCC under section 80 of the Act, must be in accordance with Form 2.

 (2)The applicant must cause a copy of the application to be served on each other party to the arbitration.

Notice about participation in a review

 7.(1) Within 7 days after the service on a party of a copy of an application for review, that party may file with the Registrar a notice stating:

• (a)

  whether the party wishes to participate in the review; and

• (b)

  if so, particulars of the facts and contentions on which the party intends to rely and the issues as that party sees them.

 (2)Subject to any direction of the Tribunal, a party is not entitled to take any step in, or be heard at the hearing of, the review unless the party has complied with subregulation (1).

Constitution of a Division of the Tribunal for a review

 8. For the purposes of a particular review, the members of the Tribunal, as constituted under sections 83 and 106 of the Act, constitute a Division of the Tribunal.

Member of Tribunal presiding

 9.(1) Subject to subregulation (2), the President must nominate a member of a Division of the Tribunal, as constituted under sections 83 and 106 of the Act for the purposes of a particular review, to preside at the review.

 (2) If a presidential member of the Tribunal is a member of the Division, that presidential member is to preside at the review.

Reconstitution of Tribunal

 10.(1) This regulation applies if a member of the Tribunal who is one of the members who constitute a Division of the Tribunal for the purposes of a particular review:

• (a)

  ceases to be a member of the Tribunal; or

• (b)

  for any reason, is not available for the purpose of the review.

 (2) The President must either:

• (a)

  direct that the Tribunal is to be constituted for the purposes of finishing the review by the remaining member or members; or

• (b)

  direct that the Tribunal is to be constituted for that purpose by the remaining member or members together with one or more other members of the Tribunal.

 (3) If a direction under subregulation (2) is given, the Tribunal as constituted in accordance with the direction must continue and finish the review and, for that purpose, may have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

Determination of question

 11. If the Tribunal is constituted for a review by 2 or more members of the Tribunal, any question before the Tribunal is to be decided:

• (a)

  unless paragraph (b) applies—according to the opinion of the majority of those members; or

• (b)

  if the members are evenly divided on the question—according to the opinion of the member who is presiding.

Disclosure of interests by members of Tribunal

 12.(1) If a member of the Tribunal is, or is to be, one of the members who constitute the Tribunal for the purposes of a particular review and the member has, or acquires, any pecuniary interest that could conflict with the proper performance of his or her functions in relation to the review:

• (a)

  the member must disclose the interest to the President; and

• (b)

  the member must not take part, or continue to take part, in the review if:

  • (i)

    the President gives a direction under paragraph (2) (a) in relation to the review; or

  • (ii)

    any party to the review objects to the member taking part in the review.

 (2) If the President becomes aware that a member of the Tribunal is, or is to be, one of the members who constitute the Tribunal for the purposes of a particular review and that the member has, in relation to the review, an interest of a kind referred to in subregulation (1):

• (a)

  if the President considers that the member should not take part, or should not continue to take part, in the review—the President must give a direction to the member accordingly; or

• (b)

  in any other case—the President must cause the interest of the member to be disclosed to the parties to the review.

Summons to witness—review hearing

 13.(1) A summons for the purposes of a review hearing must be in accordance with Form 3.

 (2) A summons must be served on a person by:

• (a)

  delivering a copy of the summons to the person personally; and

• (b)

  showing the original of the summons to the person at the time at which the copy is delivered to the person.

Taking of evidence by a single member

 14. (1) The Tribunal as constituted for the purposes of a particular review may authorise the member presiding at the review to take evidence for the purposes of the review on its behalf, with such limitations (if any) as the Tribunal so constituted directs.

 (2) If an authority is given to a member:

• (a)

  that member may take evidence accordingly; and

• (b)

  in relation to the taking of evidence in accordance with the authority, that member is taken, for the purposes of the Act and these Regulations, to constitute the Tribunal.

Application of provisions of the Trade Practices Regulations

 15. Regulations 18, 19 and 21 of the Trade Practices Regulations apply to a review, as they apply to proceedings before the Tribunal under the Trade Practices Act 1974.

Reports etc. to be given to ACCC under section 133 of the Act—prescribed time

 16. For the purposes of subsection 133 (2) of the Act, a Moomba operator must give a report relating to a transaction to the ACCC within 7 days after the day on which the financial statements and reports for the financial year in which the transaction occurred are laid before the annual general meeting of the Moomba operator.

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SCHEDULE

Subregulation 2 (4)

FORMS

FORM 1 Subregulation 5 (1)

COMMONWEALTH OF AUSTRALIA

Moomba-Sydney Pipeline System Sale Act 1994

SUMMONS TO WITNESS:

 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

(Title of matter)

To (full name and address of witness)

 You are summoned to attend before the Australian Competition and Consumer Commission, for an arbitration hearing in this matter, on (date), at (time), and then from day to day until the hearing is completed or until you are released from further attendance.

2. You are required to attend before the Commission for the purpose of giving evidence at the hearing.

*3. You are required to bring with you and produce the following documents:

(specify the documents required).

Dated

                                               19 .

 Chairperson (or Deputy

  Chairperson or Member) of the

 Australian Competition and Consumer Commission

* Insert if applicable

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FORM 2

Subregulation 6 (1)

COMMONWEALTH OF AUSTRALIA

Moomba-Sydney Pipeline System Sale Act 1994

application to tribunal for review

In the Australian Competition Tribunal

File No:

Re: (description of proceedings)

Name of applicant:

Address of applicant:

(If the applicant is a corporation, give the corporation’s name and address, not the name and address of an officer of the corporation).

1. I apply to the Australian Competition Tribunal under subsection 105 (1) of the Moomba-Sydney Pipeline System Sale Act 1994 for a review of a determination by the Australian Competition and Consumer Commission in respect of haulage services by means of the Moomba pipeline described below.

2.  I am

 *the operator of the Moomba pipeline concerned.

 *a party to the arbitration, other than the Moomba operator.

3.  Brief description of the haulage services and the Moomba pipeline concerned:

4. Facts and contentions on which I intend to rely:

5. Issues as I see them:

6.  Address for service of documents:

Dated:

 19 Signed by/on behalf of the applicant

 

 (Signature)

 

 (Full Name)

 ...........................................................

(If the applicant is a corporation, state position occupied in corporation by person signing. If signed by a solicitor for applicant, this fact should be stated).

* Delete if not applicable.

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FORM 3 Subregulation 13 (1)

COMMONWEALTH OF AUSTRALIA

Moomba-Sydney Pipeline System Sale Act 1994

SUMMONS TO WITNESS: AUSTRALIAN COMPETITION TRIBUNAL

In the Australian Competition Tribunal

File No:

Re: (description of proceedings)

To (full name and address of witness)

 You are summoned to attend before the Australian Competition Tribunal, for a review hearing in this matter, on (date), at (time), and then from day to day until the hearing is completed or until you are released from further attendance.

2. You are required to attend before the Tribunal for the purpose of giving evidence at the hearing.

*3. You are required to bring with you and produce the following documents:

(specify the documents required).

Dated

                                               19 .

 President (or Deputy

  President or Member) of the

 Australian Competition Tribunal

*

 Insert if applicable

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NOTE

1. Notified in the Commonwealth of Australia Gazette