Untitled document
Gas Industry (Amendment) Act 1998
Act No. 40/1998
TABLE OF PROVISIONS
Section Page PART 1—PRELIMINARY 1
1. Purpose 1 2. Commencement 2 3. Principal Act 2
PART 2—AMENDMENT OF PRINCIPAL ACT 3
4. New definitions 3 5. New section 5C inserted 4
5C. Substantial degree of power 4 5D. Sale of gas under MSO Rules 5
6. Dissolution of GTC 5 7. VENCorp 6 8. Functions of VENCorp 6 9. Review of Part 2 and section 47 7 10. Corporate plan 7 11. Exemption from liability relating to transmission of gas 7 12. New Part 3A inserted 8 PART 3A—SIGNIFICANT PRODUCERS 8 Division 1—Preliminary 8
34. Conduct 8 35. References to purpose 9 36. Subsidiary, holding and related bodies corporate 9 37. Joint ventures 12 38. Provisions of this Part are in addition to other anti- competitive laws 13 39. Persons involved in contravention of competition rule 13
Division 2—Anti-competitive conduct 14
40. Anti-competitive conduct 14 41. Prohibition of anti-competitive conduct 14
i
Section Page
Division 3—Authorisation 14
42. ORG may grant authorisation 14 43. Variation or revocation of authorisation 15 44. Appeal 16
Division 4—Competition notices 18
45. Competition notices 18 45A. Legal proceedings excluded 18 45B. Competition notice to be given to significant producer 19 45C. Evidentiary effect of competition notice 19 45D. Notice of orders 19 45E. Making of orders 20 45F. Extension of time limits 20
45G. Mandatory orders 20 45H. Penalty orders 20
45I. Reasons for orders 21 45J. Enforcement of orders of ORG 21
Division 5—Appeal Tribunal 21
45K. Application for review of order 21 45L. Appeal tribunal 21
45M. Procedure 22
45N. Material which appeal tribunal may consider 22 45O. Decision of appeal tribunal 23 45P. ORG may make consequential orders 24 45Q. Appeal to Supreme Court 24 45R. Operation of order that is subject to review 25
Division 6—Injunctions etc. 26 45S. Injunctions 26 45T. Actions for damages for contravention of competition
rule 28 45U. Declaratory relief 29 Division 7—Access to information 29
45V. Power to obtain information and documents 29
45W. Restriction on disclosure of confidential information 31
45X. Appeal against disclosure notice 34
Division 8—Review of Part 35
45Y. Review of operation of this Part 35
Division 9—Legal proceedings excluded 35
45Z. No proceedings 35
13. New section 47 inserted 35
ii
Section Page
47. Operation of gas transmission system 36
14. Amendment of Part 4A 37 15. New section 48BA inserted 37 48BA. Offence to operate underground storage facility without
licence 37
16. Amendment of section 48D 38 17. Licences 38 18. New section 48GA inserted 39 48GA. Reliability of retail supply 39 19. Transitional provisions 39 20. Obligations of gas retailer 40 21. Injunctions and actions for damages 40 22. Compulsory acquisition 41 23. New section 51B inserted 42
51B. Application of other laws in relation to land vested in a
gas company 42
24. Rateability of property 44 25. Easements 44 26. Amendment of Part 6B 44 27. New Part 6C inserted 45 PART 6C—MASTER AGREEMENTS 45 62Q. Definitions 45 62R. Assignment 49 62S. Approval 50 62T. Application 51 28. Amendment of section 68 52 29. Payments in respect of financial obligations 52 30. Proceedings 52 31. New section 101B inserted 52 101B. Supreme Court—limitation of jurisdiction 52 32. Amendment of section 115C 52 33. Nomination of VENCorp as transferor company 53 34. New Part 15 inserted in Principal Act 53 PART 15—PROHIBITED INTERESTS 53 Division 1—Preliminary 53 150. Definitions 53
151. Relevant interest in, and entitlement to, shares 57 152. Corporations Law 58 153. Unit trusts 58
154. Stock 59
155. Controlling interest 59 156. Substantial interest 60 157. Application of Part to partnerships 61
iii
Section Page
158. Certain shareholders agreements to be disregarded 62 159. Certain "see-through" interests to be disregarded 63 160. Effect of certificate under section 158 or 159 66 161. Application and construction of Part 66
Division 2—Prohibited interests 67
162. Prohibited interests 67 163. Other provisions relating to prohibited interests 73 164. Temporary exemption from prohibition 75 165. Power to require information relating to interests 75 166. Disposal of interest 77 167. Voting rights in respect of certain shares 80 168. Revocation of licence 80 169. Annulment of certain resolutions 81 170. Making, review and revocation of determination by ORG 81
171.
Appeal against determination of ORG 82 172.
Sale of forfeited shares 83
173. Service 83
PART 3—AMENDMENT OF ELECTRICITY INDUSTRY ACTS 85
35. Amendment of Electricity Industry Act 1993 85 36. New Part 2A substituted 85 PART 2A—ELECTRICITY TRANSMISSION 85 41A. Electricity transmission 85 37. Further amendments to Electricity Industry Act 1993 86 38. Amendment of Electricity Industry (Further Miscellaneous Amendment) Act 1997 86
═══════════════
NOTES 88
iv
Victoria
No. 40 of 1998
Gas Industry (Amendment) Act 1998†
[Assented to 26 May 1998]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purpose
The purpose of this Act is to make provision regulating certain anti-competitive conduct, to restrict cross-ownership in the gas industry and to make certain other amendments to the Gas Industry Act 1994.
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 2
2. Commencement
(1) This Part comes into operation on the day on
which this Act receives the Royal Assent.
(2) The remaining provisions of this Act, except
sections 6, 7, 9, 13, 23, 29, 35, 36 and 37, come
into operation on 8 June 1998.(3) Section 29 is deemed to have come into operation on 11 December 1997.
(4) Subject to sub-section (5), sections 6, 7, 9, 13, 23,
35, 36 and 37 come into operation on a day or
days to be proclaimed.
(5) If a provision of this Act referred to in sub-section (4) does not come into operation before 1 January 2000, it comes into operation on that day.
3. Principal Act
In this Act, the Gas Industry Act 1994 is called
No. 112/1994. Reprinted as
the Principal Act. at 22 August
1997.Subsequently amended by
Nos 55/1997 (as amended
by No.
91/1997),91/1997 and
99/1997.
_______________
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| s. 4 | Act No. 40/1998 |
PART 2—AMENDMENT OF PRINCIPAL ACT
4. New definitions
In section 3 of the Principal Act insert—
' "Port Campbell facility" means the
underground storage facility or facilities
adapted under petroleum leases PPL No. 1
and PPL No. 2 issued under the PetroleumAct 1958;
"significant producer" means a body corporate
that—
(a)
is the holder of, or of an interest in, a production licence for petroleum in the adjacent area in respect of Victoria within the meaning of the Petroleum (Submerged Lands) Act 1982 or of the Petroleum (Submerged Lands) Act 1967 of the Commonwealth; and
(b)
has a substantial degree of power in one or more Victorian gas markets—
and, in Parts 3A and 4A, includes a body
corporate that is related within the meaning
of section 36 to such a holder;
"underground storage facility" means a
naturally occurring underground reservoir
adapted to enable it to be used for the
purpose of storing natural gas;
"Victorian gas market" means a market in
which gas—
(a)
is supplied in Victoria to a gas retailer; or
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 5 (b) is supplied to customers in Victoria—
whether or not the market extends beyond
Victoria.'.
5. New section 5C inserted
After section 5B of the Principal Act insert—
'5C. Substantial degree of power
(1) If—
(a) the meaning of section 36 to another
body corporate ("the primary body
corporate") has, or 2 or more bodies
corporate each of which is related to the
same body corporate ("the primary
body corporate") together have, aa body corporate that is related within Victorian gas market; or
(b) corporate") and another body corporate
that is, or a body corporate ("the
primary body corporate") and 2 or morea body corporate ("the primary body related within the meaning of section 36 to the primary body corporate, together have a substantial degree of power in a Victorian gas market; or
(c)
a body corporate ("the primary body corporate") is engaged in a joint venture within the meaning of section 37 the parties to which together in that capacity have a substantial degree of market power in a Victorian gas market—
the primary body corporate shall be taken for
the purposes of this section to have a
substantial degree of power in that market.
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| s. 6 | Act No. 40/1998 |
(2) In determining for the purposes of this section the degree of power that a body corporate or bodies corporate has or have in
a Victorian gas market, regard shall be had
to the extent to which the conduct of the
body corporate or of any of those bodies
corporate in that market is constrained by theconduct of—
(a) competitors, or potential competitors, bodies corporate in that market; or
(b)
persons to whom or from whom the body corporate or any of those bodies corporate supplies or acquires gas in that market.
(3) In this section and in the definition of
"significant producer" a reference to power in relation to, or to conduct in, a Victorian gas market is a reference to power, or to
conduct, in that market either as a supplier oras an acquirer of gas in that market.
5D. Sale of gas under MSO Rules
In this Act, a reference to a sale of gas by retail does not include a reference to a sale of gas in the market operated by VENCorp under the MSO Rules.'.
6. Dissolution of GTC
(1) In the Principal Act—
(a)
in section 3, in the definition of "gas company"—
(i) in paragraph (a)(i), omit "GTC,";
(ii) in paragraph (c), omit "GTC or" (where twice occurring);
Gas Industry (Amendment) Act 1998
s. 7
s. 8
Act No. 40/1998
(b)
in section 3, in the definition of "gas corporation" omit "GTC,";
(c)
in section 3, in the definition of "statutory gas company", omit ", GTC";
(d) Division 1 of Part 2 is repealed;
(e) in section 17, sub-section (1) is repealed;
(f) in section 17A, sub-section (2) is repealed;(g) Schedule 2 is repealed.
(2) On the commencement of sub-section (1)—
(a) GTC is abolished;
(b) all directors of GTC go out of office;
(c)
the chief executive of GTC goes out of office.
7. VENCorp
In the Principal Act—
(a) in section 3, in the definition of "statutory gas company" omit "or VENCorp"; (b) in section 3, for the definition of "VENCorp" ' "VENCorp" means Victorian Energy
Networks Corporation Pty Ltd A.C.N.
081 026 066;';
(c) in the heading following section 16, for Corporation" substitute "VENCorp";
(d)
sections 16A, 16B, 16C, 16D, 16E, 16F and 16G are repealed;
(e)
in section 17, sub-sections (3) and (4) are repealed.
8. Functions of VENCorp
Gas Industry (Amendment) Act 1998
Act No. 40/1998
After section 16C(1)(h) of the Principal Act
insert—
"(i) to collect information about delivery of gasby gas retailers and to recommend to ORG standards in relation to the reliability of the supply of gas to classes of customers;
(j) under section 23, whether or not for purposes
to carry out directions given to VENCorp section;".
9. Review of Part 2 and section 47
(1) In section 16L(1) of the Principal Act, after "this Part" insert "and section 47".
(2) In section 16L(3) of the Principal Act omit
"statutory".
10. Corporate plan
In section 26(2) of the Principal Act, after "year" insert "or such later date as is determined by the Treasurer".
11. Exemption from liability relating to transmission of gas
(1) In section 33(1) of the Principal Act, after "any
other Act" insert "but subject to sub-section (2)".
(2) In section 33(1) of the Principal Act, for
paragraph (a) substitute—
"(a) a gas transmission company is not liable to
any penalty or damages for failing—
(i) to accept gas for injection into, or to make gas available for withdrawal from, a transmission pipeline; or
(ii) to make a transmission pipeline available to accept gas for injection into it or for the withdrawal of gas from it—
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 12 if the failure arises out of any accident or
cause beyond the control of the gastransmission company;".
12. New Part 3A inserted
After section 33 of the Principal Act insert—
'PART 3A—SIGNIFICANT PRODUCERS
Division 1—Preliminary
34. Conduct
In this Part—(a)
a reference to engaging in conduct includes a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;
(b)
a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), includes a reference to the doing of or the refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;
(c)
a reference to refusing to do an act includes a reference to—
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| s. 12 | Act No. 40/1998 |
(i) refraining (otherwise than
inadvertently) from doing that act;
or(ii) making it known that that act will not be done; and
(d) a reference to a person offering to do an condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.
35. References to purpose deemed to have engaged or to engage in conduct for a particular purpose if—
(a) the person engaged or engages in the conduct for purposes that included that purpose; and (b) that purpose was or is a substantial purpose. 36. Subsidiary, holding and related bodies corporate
(1) For the purpose of this Part and Part 4A, a
body corporate, subject to sub-section (3), is
deemed to be a subsidiary of another body
corporate if—
(a) that other body corporate—
(i) controls the composition of the mentioned body corporate;
(ii) is in a position to cast, or control the casting of, more than one-half
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 12 of the maximum number of votes
that might be cast at a general
meeting of the first-mentionedbody corporate; or
(iii) allotted share capital of the first-
mentioned body corporate
(excluding any part of that allotted
share capital that carries no right
to participate beyond a specifiedholds more than one-half of the profits or capital); or
(b) the first-mentioned body corporate is a subsidiary of any body corporate that is that other body corporate's subsidiary (including any body corporate that is that other body corporate's subsidiary by another application or other
applications of this paragraph).
(2) For the purposes of sub-section (1), the
composition of a body corporate's board of
directors shall be deemed to be controlled by
another body corporate if that other body
corporate, by the exercise of some power
exercisable by it without the consent or
concurrence of any other person, can appoint
or remove all or a majority of the directors,
and for the purposes of this provision that
other body corporate shall be deemed to
have power to make such an appointment
if—
(a)
a person cannot be appointed as a director without the exercise in his or her favour by that other body corporate of such a power; or
Gas Industry (Amendment) Act 1998
| s. 12 | Act No. 40/1998 |
(b) a person's appointment as a director follows necessarily from his or her being a director or other officer of that other body corporate.
(3) In determining whether a body corporate is a subsidiary of another body corporate—
(a)
any shares held or power exercisable by that other body corporate in a fiduciary capacity shall be treated as not held or exercisable by it;
(b)
subject to paragraphs (c) and (d), any shares held or power exercisable—
(i) that other body corporate (except
where that other body corporate isby any person as a nominee for capacity); or
(ii) subsidiary of that other body
corporate, not being a subsidiaryby, or by a nominee for, a fiduciary capacity—
shall be treated as held or exercisable
by that other body corporate;
(c) any shares held or power exercisable by of any debentures of the first- mentioned body corporate, or of a trust deed for securing any allotment of such debentures, shall be disregarded; and
(d)
any shares held or power exercisable by, or by a nominee for, that other body corporate or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not
Gas Industry (Amendment) Act 1998
s. 12
s. 12Act No. 40/1998
held or exercisable by that other body
corporate if the ordinary business of
that other body corporate or its
subsidiary, as the case may be, includes
the lending of money and the shares are
held or the power is exercisable by way
of security only for the purposes of a
transaction entered into in the ordinarycourse of that business.
(4) A reference in this Part to the holding
company of a body corporate shall be read as a reference to a body corporate of which that other body corporate is a subsidiary.
(5) Where a body corporate—
(a) is the holding company of another body corporate; (b) is a subsidiary of another body corporate; or (c) is a subsidiary of the holding company of another body corporate— that first-mentioned body corporate and that other body corporate shall, for the purposes of this Part, be deemed to be related to each other.
(6) In proceedings under this Part it shall be
presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other.
37. Joint ventures
In this Part—(a)
a reference to a joint venture is a reference to an activity in trade or commerce—
Gas Industry (Amendment) Act 1998
Act No. 40/1998
(i) carried on jointly by 2 or more persons, whether or not in partnership; or
(ii) carried on by a body corporate formed by two or more persons for the purpose of enabling those
persons to carry on that activity
jointly by means of their joint
control, or by means of their
ownership of shares in the capital,
of that body corporate; and
(b) a reference to a contract or arrangement made or understanding arrived at, or to a proposed contract or arrangement to be made or proposed understanding to be arrived at, for the purposes of a joint venture, in relation to a joint venture by way of an activity carried on by a body corporate as mentioned in sub-
paragraph (a)(ii), includes a reference
to the memorandum and articles of
association, rules or other document
that constitute or constitutes, or are or
is to constitute, that body corporate.
38. Provisions of this Part are in addition to other anti-competitive laws
The provisions of this Part are in addition to any other law regulating anti-competitive conduct.
39. Persons involved in contravention of competition rule
For the purposes of Divisions 2 and 4, a reference to a significant producer includes a reference to a person who—
Gas Industry (Amendment) Act 1998
s. 12
s. 12
Act No. 40/1998
(a) procured a contravention or proposed
has aided, abetted, counselled or or
(b) has induced such a contravention or proposed contravention; or (c) has been in any way directly or indirectly knowingly concerned in, or party to, such a contravention or proposed contravention; or (d) has conspired with others to effect such contravention.
Division 2—Anti-competitive conduct
40. Anti-competitive conduct competitive conduct if the significant producer discriminates among gas retailers in a manner that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a Victorian gas market.
41. Prohibition of anti-competitive conduct
(1) A significant producer must not engage in
anti-competitive conduct within the meaning
of section 40.(2) For the purposes of this Part, the rule set out
in sub-section (1) is to be known as the
competition rule.
Division 3—Authorisation
42. ORG may grant authorisation
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| s. 12 | Act No. 40/1998 |
(1) Subject to this section and the regulations,
ORG may, on the application of a significant producer—
(a) grant an authorisation to the significant producer and to any other person or class of persons specified in the authorisation to engage in conduct that, but for the authorisation, might contravene the competition rule; or (b) refuse to grant such an authorisation. (2) ORG must not grant an authorisation in
relation to conduct unless—
(a)
in the opinion of ORG, the conduct would not contravene the competition rule; and
(b)
the significant producer has not commenced to engage in the conduct.
(3) An authorisation under sub-section (1)—
(a) may be granted subject to such terms and conditions as ORG determines; and (b) may be granted in respect of a specified period only. (4) ORG must give written reasons to the
significant producer for its decision under
this section not later than 14 days after
making the decision.
(5) While an authorisation under sub-section (1)
remains in force, section 40 does not apply
to conduct to which the authorisation applies
that is engaged in by the significant producer
or by any other person or class of persons
specified in the authorisation.
43. Variation or revocation of authorisation
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 12 (1) If ORG is satisfied that—
(a) an application for an authorisation that was false or misleading in a material particular; or
(b) since an authorisation was granted, there has been a material change of circumstances relating to the person to whom it was granted or the conduct to
which it applies; or(c) there has been a breach of a term or condition of an authorisation— ORG may, subject to the regulations, vary or revoke the authorisation.
(2) If ORG varies or revokes an authorisation, ORG must give to the significant producer written reasons for the decision not later than
14 days after the variation or revocation.
44. Appeal
(1) If ORG—
(a) grants an authorisation subject to terms and conditions or for a specified period or refuses to grant an authorisation; or (b) varies or revokes an authorisation— the significant producer may apply to the appeal tribunal under Division 5 for a review
of the decision on the grounds of an error of
fact or law.(2) An application under sub-section (1) must be
lodged with ORG within 7 working days
after the reasons for the decision are given.
(3) The appeal tribunal may not have regard to material other than—
Gas Industry (Amendment) Act 1998
Act No. 40/1998
(a) submissions and information made or before the decision was made;
(b)
information or material to which ORG had regard before the decision was made;
(c)
the reasons given by ORG for the making of the decision;
(d) if the appeal tribunal gives leave—
(i) such other material relating to the submissions; or
(ii) such other information— as could not by the exercise of reasonable skill and diligence have
been or become available to the
applicant or ORG before the making ofthe decision.
(4) The appeal tribunal must make a decision in
writing—
(a) affirming, modifying or setting aside the decision of ORG and, for that purpose, may exercise any of the powers and discretions that ORG has and could exercise in relation to the matter; or (b) by ORG in accordance with any
remitting the matter for reconsideration appeal tribunal.
(5) The appeal tribunal must give a copy of its decision in writing, together with a copy of its reasons for the decision to the applicant and to ORG.
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 12 Division 4—Competition notices
45. Competition notices
(1) If ORG believes on reasonable grounds
that—
(a) a person is a significant producer; and
(b) that person has contravened or is contravene—
the competition rule, ORG may issue a
written notice—
(c) stating that a specified person has contravened, or is contravening or proposing to contravene, the competition rule; and
(d) setting out particulars of that contravention.
(2) A notice under sub-section (1) is to be known as a competition notice.
45A. Legal proceedings excluded
Proceedings—
(a)
seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration or an injunction; or
(b)
seeking any order under the Administrative Law Act 1978—
(whether on the ground of absence of
jurisdiction or on any other ground) may not
be brought against any person in respect of a
decision to issue a competition notice or any
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| s. 12 | Act No. 40/1998 |
act, matter or thing incidental to or leading to
the making of such a decision.
45B. Competition notice to be given to
significant producer
As soon as practicable after issuing a competition notice, ORG must give a copy of the competition notice to the person specified in the notice.
45C. Evidentiary effect of competition notice
(1) In any proceedings under, or arising out of,
this Part, a competition notice is evidence of
the matters in the notice.
(2) A document purporting to be a competition
notice must, unless the contrary is
established, be taken to be a competition
notice and to have been properly issued.
(3) ORG may certify that a document is a copy of a competition notice.
(4) This section applies to the certified copy as if it were the original.
45D. Notice of orders
(1) ORG must, within 14 days after issuing a
competition notice, give written notice to the
person specified in the notice of the orders
ORG is proposing to make under this Part.
(2) Sub-section (1) does not apply to a proposed
order under section 45G unless ORG
otherwise determines.
(3) The person to whom the notice is given, within 14 days after receiving the notice, may make such submissions to ORG on the
proposed orders and provide such
information relating to them as the person
thinks fit.
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 12 45E. Making of orders
(1) ORG may, not earlier than 14 days, and not later than 28 days, after giving notice of the orders under section 45D, by written notice make all or any of the orders referred to in the notice.
(2) As soon as practicable after making an order
under this section, ORG must give a copy ofthe order to the person specified in the order.
45F. Extension of time limits
ORG may, of its own motion or on the application of a person to whom a competition notice is given extend a period referred to in section 45D or 45E by not more than 14 days.
45G. Mandatory orders
(1) If ORG has issued, or is entitled to issue, a
competition notice relating to a particular
person, ORG may at any time make an order
directing the person—
(a) to cease certain conduct; or
(b) to modify certain conduct; or
(c) to engage, or refrain from engaging, in certain conduct. (2) In an order under sub-section (1), ORG may
specify terms and conditions applicable to
the subject matter of the order.
45H. Penalty orders
If ORG has issued a competition notice relating to a particular person, ORG may make an order requiring the payment by the person to the Consolidated Fund of a fine not exceeding $10 000 000.
Gas Industry (Amendment) Act 1998
s. 12
| s. 12 | Act No. 40/1998 |
45I. Reasons for orders
ORG must give written reasons for making an order under this Part either when it makes the order or within 14 days after making it.
45J. Enforcement of orders of ORG
An order made by ORG under this Part may be enforced as if it were a judgment or order of the Supreme Court.
Division 5—Appeal Tribunal
45K. Application for review of order
(1) A person who is the subject of an order made
by ORG under this Part may apply to the
appeal tribunal referred to in section 45L for
a review of any order made by ORG under
this Part in relation to the person, including,
in the case of an order under section 45H, the
amount of a fine.
(2) An application under sub-section (1) must be
lodged with ORG within 14 working days after the reasons for making the order are given.
(3) The grounds for an application are—
(a)
that ORG made an error of fact or law in a material respect in issuing the competition notice or in making an order; or
(b)
that the amount of a fine under an order under section 45H is excessive.
45L. Appeal tribunal
Gas Industry (Amendment) Act 1998
Act No. 40/1998
(1) The appeal tribunal consists of 3 persons
appointed by the Minister administering the Office of the Regulator-General Act 1994, on such terms and conditions as the Minister determines, from the pool of persons
appointed by the Governor in Council for the
purposes of section 38 of that Act or from
among such other persons eligible to be
members of that pool as that Ministerdetermines being persons of whom—
(a) one must be a person experienced in law; and (b) another must be a person experienced in economics. (2) The person appointed under sub-section (1)(a) shall be the presiding member.
45M. Procedure
(1) The regulations may regulate the procedure of the appeal tribunal.
(2) The appeal tribunal is not bound by the rules of evidence but, subject to section 45N, may inform itself in any manner it thinks fit.
(3) Subject to this Part and the regulations, the
procedure of the appeal tribunal is in its
discretion.
45N. Material which appeal tribunal may
consider
The appeal tribunal may not have regard to material other than—
(a) submissions and information made or before the order was made;
(b)
information or material to which ORG had regard before the order was made;
Gas Industry (Amendment) Act 1998
| s. 12 | Act No. 40/1998 |
(c)
the reasons given by ORG for the making of the order;
(d) if the appeal tribunal gives leave—
(i) such other material relating to the submissions; or
(ii) such other information— as could not by the exercise of reasonable skill and diligence have
been or become available to the
applicant or ORG before the making ofthe order.
45O. Decision of appeal tribunal
(1) The appeal tribunal must make a decision in
writing—
(a) affirming the order under review; or
(b) setting aside the order under review and remitting the matter for reconsideration by ORG in accordance with any directions or recommendations of the
appeal tribunal; or(c) in the case of a review of the amount of a fine under an order under section 45H, substituting a fine of an amount determined by the appeal tribunal or remitting the matter for reconsideration by ORG in accordance with any directions or recommendations of the appeal tribunal. (2) The appeal tribunal must make its decision
within 3 months after the application for
review was made or within such longer
period as the appeal tribunal determines.
(3) The appeal tribunal must give a copy of its
decision in writing, together with a copy of
Gas Industry (Amendment) Act 1998
s. 12
s. 12
Act No. 40/1998
its reasons for the decision, to the applicant
and to ORG.
45P. ORG may make consequential orders
(1) If the appeal tribunal remits a matter toORG, ORG may make such orders as ORG thinks fit having regard to—
(a) the error or errors of fact or law referred to in the decision of the appeal tribunal; or (b) in the case of a review of the amount of a fine, the decision of the appeal tribunal. (2) ORG, within 14 days after receiving a copy of the appeal tribunal's decision—
(a) must make an order or orders under sub-section (1); and (b) must give a copy of the order or orders, together with its reasons for making them, to the person who applied for the review. (3) ORG may extend the period referred to in
sub-section (2) by not more than 14 days or,
if sub-section (4) applies, 28 days.
(4) If the appeal tribunal so determines, section
45D(1) and (3) applies to an order made
under this section as if the receipt by ORG of
a copy of the appeal tribunal's decision were
the issuing of a competition notice.
45Q. Appeal to Supreme Court
(1) A party to a review by the appeal tribunal may appeal to the Supreme Court—
(a)
on a question of law, from a decision of the appeal tribunal on that review; and
Gas Industry (Amendment) Act 1998
Act No. 40/1998
(b)
in the case of a review of an order under section 45H, against that order.
(2) An appeal must be instituted—
(a) not later than the 14th day after the day on which a decision was made under section 45O or within such longer period as the Supreme Court (whether before or after that day) allows; and (b) subject to and in accordance with the rules of the Supreme Court. (3) The Supreme Court must hear and determine
the appeal and may make such order as it
thinks fit including—
(a) an order affirming, varying or setting aside the order of ORG; or (b) an order affirming, varying or setting aside the order under section 45H; or (c) for re-consideration in accordance with
an order remitting the matter to ORG the Court.
45R. Operation of order that is subject to review
(1) The making of an application to the appeal
tribunal or the institution of an appeal to the Supreme Court from a decision of the appeal tribunal does not affect the operation of the
order, or decision of the appeal tribunal, that
is the subject of the application.(2) The appeal tribunal, on a request being made
by a party to a review before the appeal
tribunal, may, if the appeal tribunal is of the
opinion that it is desirable to do so, and good
Gas Industry (Amendment) Act 1998
s. 12
s. 12
Act No. 40/1998
cause to do so has been shown, make an order staying the operation of the order.
(3) If an appeal is instituted to the Supreme
Court against a decision of the appeal tribunal, the Supreme Court may, if satisfied that it is desirable to do so, and good cause to do so has been shown, make an order staying the operation of any or all of—
(a) the decision of the appeal tribunal;
(b) the order to which the review before the appeal tribunal related; (c) a consequential order made by ORG under section 45P. (4) The appeal tribunal or the Supreme Court, in
considering whether good cause has been
shown for a stay of the operation of an order
or decision under this section must have
regard to the harm to customers or any other
persons that may occur because of the
continuation of the discrimination pending
the outcome of the review or determination
of the appeal and any undertakings or
indemnities tendered by the person making
the application to cease the discrimination.
Division 6—Injunctions etc.
45S. Injunctions
(1) If, on an application by a person, the Supreme Court is satisfied that a person—
(a)
has contravened, or is proposing to contravene, the competition rule; or
(b)
has been in any way, directly or indirectly, knowingly concerned in, or party to, a contravention or proposed
Gas Industry (Amendment) Act 1998
Act No. 40/1998
contravention of the competition rule;
or
(c) has aided, abetted, counselled or procured such a contravention; or (d) has induced, whether by threats or contravention; or
(e)
has been in any way, directly or indirectly, knowingly concerned in, or party to such a contravention; or
(f)
has conspired with others to effect such a contravention—
the Court may grant an injunction in such
terms as the Court determines to beappropriate.
(2) If an application for an injunction under sub-
the Court determines it to be appropriate,
grant an injunction by consent of all the
parties to the proceedings, whether or not thesection (1) has been made the Court may, if contravened, or is proposing to contravene the competition rule. (3) If in the opinion of the Court it is desirable to
do so, the Court may grant an interim
injunction pending determination of an
application under sub-section (1).
(4) The Court may rescind or vary an injunction
or interim injunction granted under this
section.
(5) The power of the Court to grant an
injunction restraining a person from
engaging in conduct contravening the
competition rule may be exercised—
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 12
(a) whether or not it appears to the Court that the person intends to contravene again, or to continue to contravene that rule; and
(b) whether or not the person has previously contravened that rule; and (c) whether or not there is an imminent danger of substantial damage to any other person or to property if the person contravenes that rule; and
(d)
whether or not ORG has taken action under this Part.
(6) If ORG makes an application to the Supreme
Court for the grant of an injunction under this section, the Supreme Court shall not require the applicant or any other person, as
a condition of granting an interim injunction,to give any undertakings as to damages.
45T. Actions for damages for contravention of
competition rule
(1) A person who suffers loss or damage by
conduct of another that was done in
contravention of the competition rule may
recover the amount of the loss or damage by
action against that other person or against
any person involved in the contravention.
(2) An action under sub-section (1) may be
commenced at any time within 3 years after
the date on which the cause of action
accrued.
(3) A reference in sub-section (1) to a person
involved in a contravention of the
competition rule is a reference to a person
who—
Gas Industry (Amendment) Act 1998
s. 12
| s. 12 | Act No. 40/1998 |
(a) has aided, abetted, counselled or procured the contravention; or (b) has induced, whether by threats or contravention; or
(c)
has been in any way, directly or indirectly, knowingly concerned in, or party to the contravention; or
(d)
has conspired with others to effect the contravention.
45U. Declaratory relief
(1) The Supreme Court, on an application by a
person shall, by order, declare whether or not
the person to which the application relates
has contravened the competition rule.
(2) If the order declares the person to have
contravened the competition rule, the order may include one or more of the following—
(a) within a specified period, the act,
a requirement that the person cease, contravention;
(b) action, or adopt such practice, as the
Court requires for remedying thea requirement that the person take such recurrence of the contravention.
Division 7—Access to information
45V. Power to obtain information and
documents
(1) If ORG has reason to believe that a person
has information or a document that may assist ORG in the performance of any of
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 12 ORG's prescribed duties, ORG may require the person—
(a) to give ORG the information or document; or (b) to appear before ORG to give any such information or produce any such document. (2) A requirement must be made in a written
notice that identifies the information or
document and that specifies—
(a)
by when the requirement must be complied with; and
(b)
in what form the information or copy of the document is to be given to ORG.
(3) The notice must also state that the
requirement is made under this section and
must include a copy of this section.(4) A person must not, without lawful excuse, fail to comply with any requirement made under this section in a notice given to the person.
Penalty: 100 penalty units or imprisonment
for 2 years.(5) If the person is a natural person, it is a lawful excuse for the purpose of sub-section (4) that compliance may tend to incriminate the
person or make the person liable to a penalty
for an offence under any other law.
(6) A person must not, in purported compliance
with a requirement made under this section,
Gas Industry (Amendment) Act 1998
| s. 12 | Act No. 40/1998 |
knowingly give ORG information that is
false or misleading.
Penalty: 100 penalty units or imprisonment
for 2 years.(7) A person must not—
(a) threaten, intimidate or coerce another person; or (b) take, threaten to take, incite or be involved in any action that causes another person to suffer any loss, injury or disadvantage—
because that other person complied, or
intends to comply, with a requirement madeunder this section.
Penalty: 100 penalty units or imprisonment
for 2 years.(8) A person is not liable in any way for any
loss, damage or injury suffered by another
person because of the giving in good faith of
a document or information to ORG under
this section.
(9) In this section—
"prescribed duty" means a function or
power of ORG under this Part or
Part 4A.
45W. Restriction on disclosure of confidential
information
(1) This section applies if information or a
document is given to ORG under section
45V and, at the time it is given, the person
giving it states that it is of a confidential or
commercially-sensitive nature.
Gas Industry (Amendment) Act 1998
Act No. 40/1998
(2) ORG must not, without the consent of the
person who gave it, disclose the information
or the contents of the document to any
person unless—
(a) ORG is of the opinion—
(i) information or document would
that the disclosure of the supplying it or to the person from whom that person received it; or
(ii) information or document would
that, although the disclosure of the the public benefit in disclosing it outweighs that detriment; and
(b) ORG gives the person who supplied the information or document a written notice— (i) stating that ORG wishes to disclose the information or contents of the document,
specifying the nature of the
intended disclosure and setting out
detailed reasons why ORG wishes
to make the disclosure; and(ii) stating that ORG is of the opinion required by paragraph (a) and setting out detailed reasons why it is of that opinion; and
(iii) setting out a copy of this section and section 45X; and
(c)
if ORG is aware that the person who supplied the information or document in turn received the information or document from another person and is
Gas Industry (Amendment) Act 1998
| s. 12 | Act No. 40/1998 |
| aware of that other person's identity and address, ORG gives that other person a written notice— |
(i) containing the details required by paragraph (b); and
(ii) stating that ORG is of the opinion required by paragraph (a) in relation to that other person and setting out detailed reasons why it is of that opinion; and
(iii) setting out a copy of this section and section 45X; and
(d)
an application for review is not lodged in respect of any notice given under paragraph (b) or (c) within the time permitted by section 45X(3).
(3) Sub-section (2) does not prevent ORG—
(a) contents of a document to a member of
the staff of ORG or to a person engagedfrom disclosing information or the carrying out of its functions; or
(b) from using information or a document for the purposes of civil or criminal proceedings; or (c) from supplying the information or an application in relation to the information or document; or
(d)
from supplying the information or document to the ACCC in relation to a possible contravention of Part IV of the Trade Practices Act 1974 of the Commonwealth or the Competition Code.
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 12 (4) For the purposes of this section, the
disclosure of anything that is already in the
public domain at the time ORG wishes to
disclose it cannot cause detriment to any
person referred to in sub-section (2)(b) or
(c).
45X. Appeal against disclosure notice
(1) A person who is given a notice under section
45W(2)(b) or (c) and who is aggrieved by a decision of ORG to disclose information or the contents of a document may appeal
against the decision in accordance with thissection.
(2) An appeal may only be made on the ground
that—
(a) the decision was not made in accordance with law; or (b) the decision is unreasonable having regard to all relevant circumstances. (3) The person must lodge notice of the appeal with ORG within 7 working days after the person is given the notice.
(4) On the hearing of an appeal against a
decision, ORG bears the onus of establishing
that—
(a) the decision was made in accordance with law; and (b) the decision is reasonable having regard to all relevant circumstances. (5) In granting an appeal under this section the appeal tribunal may—
(a)
forbid disclosure by ORG of the information or document that is the subject of the appeal; or
Gas Industry (Amendment) Act 1998
s. 12
| s. 13 | Act No. 40/1998 |
(b)
restrict the intended disclosure by ORG of the information or document within limits specified by the appeal panel.
(6) Except as otherwise provided in this section,
section 48ZQ (except sub-sections (1), (2), (8) and (15)) applies to an appeal under this section.
Division 8—Review of Part
45Y. Review of operation of this Part
(1) The Minister must cause to be conducted a review of the operation of this Part before 30 June 2003.
(2) In conducting the review, consideration must be given to the question whether any or all of the provisions of this Part should be repealed or amended.
(3) The Minister must cause to be prepared a report of the review.
(4) The Minister must cause copies of the report
Parliament within 15 sitting days of the
to be laid before each House of the preparation of the report.
Division 9—Legal proceedings excluded 45Z. No proceedings
Proceedings may not be brought in respect of a decision or determination of ORG or of an appeal tribunal or in respect of any process leading to such a decision or determination, except as provided by this Part.'.
13. New section 47 inserted
After section 46 of the Principal Act insert—
Gas Industry (Amendment) Act 1998
Act No. 40/1998
"47. Operation of gas transmission system
(1) ORG must ensure that at all times VENCorpor another person is appointed by ORG to carry out the functions referred to in sub- section (3).
(2) VENCorp or any other person appointed for
the purposes of this section must carry out
the functions referred to in sub-section (3) in
accordance with the terms of the
appointment and such directions (if any) as
are given to VENCorp or the other person in
writing by ORG.
(3) The functions are—
(a) to specify security standards for the gas transmission system; (b) to control the security of the gas transmission system; (c) to control the operation of the gas transmission system; (d) to collect information about the gas transmission system; (e) to monitor and review the capacity of the gas transmission system and the trends for demand for the injection of gas into, and the withdrawal of gas from, the system; (f) to provide information and other services to facilitate decisions for economically efficient investment and use of resources in the gas industry;
(g) production, gas storage, transmission
to co-ordinate the interaction of gas supply facilities for the purpose of
Gas Industry (Amendment) Act 1998
s. 14
| s. 15 | Act No. 40/1998 |
| ensuring a secure and efficient gas transmission system; |
(h) facilitate trading arrangements for the
to operate and administer a market and system;
(i) to collect information about delivery of gas by gas retailers and to recommend to ORG standards in relation to reliability of the supply of gas to classes of customers.".
14. Amendment of Part 4A
(1) In section 48A(1)(a) of the Principal Act omit
", other than non-franchise customers".
(2) In the heading preceding section 48B of the
Principal Act, for "and gas retailers" substitute
", gas retailers and providers of underground
storage facilities".
15. New section 48BA inserted
After section 48B of the Principal Act insert—
"48BA. Offence to operate underground storage
facility without licence
A person must not engage in providing services as a market participant by means of the Port Campbell facility, either as principal or agent, unless the person—
(a)
is the holder of a licence under this Part authorising that person to provide those services; or
(b)
is exempt from the requirement to obtain a licence in respect of those services because of an Order under section 48C.
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 17
Penalty: 1000 penalty units and 100
penalty units for each day after the
day on which a notice of
contravention of this section is
served on the person by ORG.".
16. Amendment of section 48D
After section 48D(1)(b) of the Principal Act insert—
"or
(c)
authorising the person to engage in providing services as a market participant by means of an underground storage facility.".
17. Licences
(1) In section 48F(2) of the Principal Act, paragraph (b) is repealed.
(2) In section 48F(4) of the Principal Act, for
paragraph (f) substitute—
"(f) in the case of a licence issued to a gas
retailer, requiring the licensee to comply, in
relation to the supply of gas to specified
classes of customers, with the standards of
reliability of supply determined under
section 48GA;(fa) preventing the licensee from engaging in or undertaking specified business activities;
(fb) requiring the licensee to establish and
maintain separate accounts for specified
business activities and to keep those
activities separate from its other activities in
any manner specified in the licence;
(fc) prohibiting the licensee from engaging in conduct of a particular kind, or for a
Gas Industry (Amendment) Act 1998
| s. 19 | Act No. 40/1998 |
particular purpose, or that has, or is likely to
have, a particular effect;".
18. New section 48GA inserted
After section 48G of the Principal Act insert—
"48GA. Reliability of retail supply
ORG must determine standards in relation to reliability of the supply of gas to classes of customers in accordance with recommendations made to ORG by VENCorp.".
19. Transitional provisions
(1) After section 48L(1) of the Principal Act insert—
"(1A) The Treasurer may give directions to ORG
as to the terms and conditions to be included
in a licence under section 48D(1)(c).".
(2) In section 48L(2) of the Principal Act, for "initial
licences under this Part" substitute "licences
issued under this Part on 11 December 1997 or a
licence issued under section 48D(1)(c)".
(3) After section 48L(2) of the Principal Act insert— "(3) Despite anything to the contrary in any
licence to sell gas by retail held by a
significant producer, such a licence does not
authorise the sale of gas from a supply pointto a person unless—
(a)
the person had purchased not less than 500 000 GJ of gas from that supply point, or an ancillary supply point, during the 12 months immediately preceding 1 September 1998 or the
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 20 commencement of the supply,
whichever is the later; or
(b) satisfied on reasonable grounds that the
person will purchase not less than
500 000 GJ of gas from that supply
within a period of 12 months during the
period of 3 years next following
1 September 1998 or theif the supply point is new and ORG is whichever is the later; or
(c) the person is a person to whom a determination of ORG under sub- section (4) applies. (4) ORG, with the approval of the Treasurer,
may determine that a licence referred to in
sub-section (3) may authorise the sale of gas
by retail to a person who satisfies such
requirements as to the quantity of gas
purchased, or likely to be purchased, as ORG
determines, having regard to the objectives
specified in section 8B.
(5) Nothing in sub-section (3) applies to or affects the carrying on by a person of an activity in accordance with an exemption under section 48C.".
20. Obligations of gas retailer
In section 48M(3) of the Principal Act, for "non- franchise customers" substitute "customers, other than non-franchise customers".
21. Injunctions and actions for damages
In the Principal Act—
(a)
in section 48R(2)(b), for "any other person" substitute "a market participant";
Gas Industry (Amendment) Act 1998
Act No. 40/1998
(b)
in section 48S(1), for "person who" substitute "market participant who".
22. Compulsory acquisition
(1) After section 51(2) of the Principal Act insert—
"(2A) Land acquired by the Minister on a
recommendation of a gas transmission the contrary in that Act.".
company or gas distribution company under
sub-section (1) vests in that gas transmission
company or gas distribution company under
section 24 of the Land Acquisition and(2) After section 51(4) of the Principal Act insert—
"(5) Sub-section (2A) applies to land acquired by the Minister under this section on or after the commencement of section 22 of the Gas
Industry (Amendment) Act 1998 even if a notice of intention to acquire the land was given by the Minister before that commencement.".
(3) After section 51A(2) of the Principal Act insert—
"(2A) An easement acquired by the Minister on a
recommendation of a gas transmission the contrary in that Act.
company or gas distribution company under
sub-section (1) vests in that gas transmission
company or gas distribution company under
section 24 of the Land Acquisition and
(2B) The Minister may acquire an easement under sub-section (1) even though that easement is not, and is not in any instrument, expressed
to be, appurtenant to any land.".
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 23 (4) After section 51A(3) of the Principal Act insert—
"(3A) Sub-section (2A) applies to an easement
acquired by the Minister under this section
on or after the commencement of section 22
of the Gas Industry (Amendment) Act
1998 even if a notice of intention to acquire
the easement was given by the Minister
before that commencement.".
23. New section 51B inserted
After section 51A of the Principal Act insert—
'51B. Application of other laws in relation to land vested in a gas company
(1) Sections 26 and 28 of the Land Acquisition and Compensation Act 1986 apply in relation to land or an easement which is vested in a gas transmission company or gas
distribution company under section 51 or
51A as if—
(a) Authority were a reference to the land
vested in the gas transmission companyany reference to land vested in the case requires); and
(b) any reference to the Authority entering
into possession of the land were a
reference to the Authority entering into
possession of the land on behalf of the
gas transmission company or gas
distribution company in which the land
is vested.
(2) Section 53(2) of the Transfer of Land Act 1958 applies in relation to land or an
Gas Industry (Amendment) Act 1998
| s. 23 | Act No. 40/1998 |
easement which is vested in a gas
transmission company or gas distribution
company under section 51 or 51A as if a
reference in that provision to an acquiring
authority or authority were a reference to the
gas transmission company or gas distribution
company (as the case requires).(3) Section 54 of the Transfer of Land Act
1958 applies in relation to land or an
easement which is vested in a gas
transmission company or gas distribution
company under section 51 or 51A as if a
reference in that section to an acquiring
authority (except where secondly occurring)
were a reference to the gas transmission
company or gas distribution company (as the
case requires).
(4) The Minister may lodge a notification under
section 88(2) of the Transfer of Land Act
1958 in respect of an easement acquired
under section 51 or 51A even though the
easement is vested in a gas transmission
company or gas distribution company.
(5) Section 35(3) of the Subdivision Act 1988 applies in relation to land which is vested in a gas transmission company or gas
distribution company under section 51 as if
after paragraph (d) there were inserted—"(e) if any land on the plan is vested in a gas
transmission company or gas
distribution company under section 51
of the Gas Industry Act 1994, must
include the name of the company inwhom the land is vested.".
(6) Section 35(6) of the Subdivision Act 1988
applies in relation to land which is vested in
Gas Industry (Amendment) Act 1998
s. 24
s. 25
Act No. 40/1998
a gas transmission company or gas
distribution company under section 51 as if
paragraphs (k) and (l) provide for the
creation of a folio in the name of the gas
transmission company or gas distribution
company in which the land is vested insteadof in the name of the authority.'.
24. Rateability of property
(1) In section 52 of the Principal Act, after "public
gas company" insert "or VENCorp".
(2) At the end of section 52 of the Principal Act
insert—
"(2) Despite anything to the contrary in the LocalGovernment Act 1989, land is not occupied land for the purposes of that Act merely because there is on or under that land any pipe or system of pipes for, or incidental to the conveyance of gas for sale by retail.".
25. Easements
In section 61(1)(a) of the Principal Act, after
"easement" (where twice occurring) insert ", rightor privilege".
26. Amendment of Part 6B
(1) In section 62M of the Principal Act, in the
definition of "new arrangement", after "contract or
arrangement made on or after 1 December 1997"
insert "but does not include a contract or
arrangement if, when the contract or arrangement
is made, a party to it is a person other than a
statutory authority or a company all the shares in
which are held by or on behalf of the State or a
statutory authority".Gas Industry (Amendment) Act 1998
| s. 27 | Act No. 40/1998 |
(2) In section 62M of the Principal Act, in the
definition of "new retailer", for "(Gas)" (where 3
times occurring) substitute "Energy".
27. New Part 6C inserted
After Part 6B of the Principal Act insert—
'PART 6C—MASTER AGREEMENTS
62Q. Definitions
In this Part—
"BHP" means BHP Petroleum (Bass Strait)Pty Ltd or a body corporate related to it;
"Competition Code" has the same meaning
as in the Competition Policy Reform
(Victoria) Act 1995;
"Esso" means Esso Australia Resources Ltd
or a body corporate related to it;"gas supply contract" has the same
meaning as in section 62M;
"master agreement" means—
(a) a contract between GASCOR and a new retailer or new retailers and RCo containing terms and conditions—
(i) obligations of GASCOR
on which the rights and are to be exercised; and
(ii) under which quantities of gas are allocated among the new retailers and RCo; and
(iii) which is designated as such by the Minister for the
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 27 purpose of this provision;
and
(b) each and any variation to the the Minister; and
(c) understanding arrived at between
a contract or arrangement made or new retailers and RCo or between new retailers and RCo for the purpose of giving effect to, or incidental to, an obligation or right of one or more of the parties under the master agreement;
"new retailer" has the same meaning as in
section 62M;
"RCo" means Gas Release Co Pty Ltd A.C.N. 079 089 286;
"specified operational provision", in
relation to a master agreement, means a
provision that relates to—
(a) the provision of information by a new retailer or RCo to GASCOR or by GASCOR to a new retailer or RCo or the provision or sharing of information between such
parties inter se; or(b) decision to make any direction or
take any action by a party to the
master agreement or its
representative collectively with
any other such party or itsany direction or action, or right, entitlement, interest,
Gas Industry (Amendment) Act 1998
Act No. 40/1998
decision or action that GASCOR has or may take or exercise under a gas supply contract—
and has the purpose or has or is likely
to have the effect of substantially
lessening competition within the
meaning of section 45 of the Trade
Practices Act and the Competition
Code;"specified price provision", in relation to a master agreement, means a provision that has the purpose or has or is likely to have the effect, of fixing, controlling
or maintaining or providing for the through the agency of more than one new retailer or acquired by more than one new retailer or RCo;
fixing, controlling or maintaining of the
price for gas to be acquired by
"specified price review provision" means a specified price provision that relates to the conduct of any price review under the price review provisions of a gas
supply contract;
"specified terms provision", in relation to a
master agreement, means a provision that provides for the supply of gas by GASCOR to or through the agency of more than one new retailer or RCo, or that provides for the acquisition of gas by more than one new retailer or RCo, upon identical or like or similar terms and conditions that has the purpose, or would have or would be likely to have the effect, of substantially lessening
competition within the meaning of
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 27 section 45 of the Trade Practices Act
and the Competition Code;"specified volume provision", in relation to a master agreement, means a provision that relates to—
(a) RCo from GASCOR of a volume
of gas that is specified,the acquisition by a new retailer or calculation; or
(b)
the supply by GASCOR to or through the agency of a new retailer or RCo of a volume of gas that is specified, identifiable or capable of calculation; or
(c)
the payment by a new retailer or RCo to GASCOR of any amount of money for the reason that
GASCOR has not acquired or has
not agreed to acquire from Esso
and BHP jointly or from either or
each of them severally (as the case
may be) or the new retailer or
RCo has not acquired or has not
agreed to acquire from GASCOR
or has not supplied or agreed to
supply as GASCOR's agent a
volume of gas that is specified,
identifiable or capable of
calculation—and that has the purpose, or has or is
likely to have the effect, of
substantially lessening competition
within the meaning of section 45 of the
Trade Practices Act and the
Competition Code;
Gas Industry (Amendment) Act 1998
s. 27
| s. 27 | Act No. 40/1998 |
"Trade Practices Act" means the Trade
Practices Act 1974 of the
Commonwealth.
62R. Assignment
(1) If GASCOR, a new retailer or RCo assigns the whole or any part or any combination of parts (not comprising the whole) of its rights under a master agreement to a person or to
persons, a reference to GASCOR, the new GASCOR, new retailer or RCo and this section) shall be construed from the time of that assignment to be—
retailer or RCo (as the case requires) in this
(a) in the case where GASCOR, the new retailer or RCo assigns the whole of its rights under a master agreement, a reference to that person or to those persons and to a body corporate related to that person or to any of those persons; and (b) in the case where GASCOR, the new retailer or RCo assigns a part or combination of parts (not comprising the whole) of its rights under a master agreement— (i) in respect of the part or combination of parts assigned, a reference to that person or to those persons and to a body corporate related to that person or to any of those persons; and
(ii) in respect of the rights retained, a reference to GASCOR, the new retailer or RCo (as the case requires).
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 27 (2) Sub-section (1) applies to each and any
assignment by a person or persons of the whole or any part or combination of parts (not comprising the whole) of the rights held
originally by GASCOR, the new retailer or RCo under a master agreement and held at that time by that person or those persons and
in respect of which there has been a previousapplication of sub-section (1).
(3) For the purpose of this section—
(a) grammatical forms of that word shall be
read as a reference to allocation under
this Act, assignment, conveyance,
grant, transfer or novation and for thea reference to assignment and other of each of those words; and
(b)
a reference to rights under a master agreement shall be read as a reference to rights, benefits, privileges or facilities under a master agreement.
62S. Approval
(1) Subject to sub-section (2), or the purposes of Part IV of the Trade Practices Act and of the Competition Code, any thing done or other
(2) The specific authorisation referred to in sub- conduct engaged in by any, all or some of specified in section 62T as a thing or other conduct engaged in to which this section applies, is specifically authorised to be done during the period ending 31 December 2010.
section (1) is intended to operate—
Gas Industry (Amendment) Act 1998
Act No. 40/1998
(a) to the extent that the master agreement contains terms and conditions on which the rights and obligations of GASCOR under a gas supply contract are to be exercised; and
(b)
in parallel with the authorisation contained in section 62O.
62T. Application
Section 62S applies to the following things—
(a)
attempting to make or making a master agreement which contains a specified terms provision, other than a specified price review provision;
(b)
attempting to give or giving effect to a specified terms provision of a master agreement, other than a specified price review provision;
(c)
attempting to make or making a master agreement which contains a specified price provision, other than a specified price review provision;
(d)
attempting to give or giving effect to a specified price provision of a master agreement, other than a specified price review provision;
(e)
attempting to make or making a master agreement which contains a specified volume provision;
(f)
attempting to give or giving effect to a specified volume provision of a master agreement;
(g)
attempting to make or making a master agreement which contains a specified
Gas Industry (Amendment) Act 1998
s. 28
s. 29Act No. 40/1998
operational provision other than a
specified price provision;
(h)
attempting to give or giving effect to a specified operational provision of a master agreement other than a specified price provision.'.
28. Amendment of section 68
After section 68(6) of the Principal Act insert—
"(6A) If the Treasurer and the Minister, with the
agreement of the gas company, declare that a statement given under this section by the gas company has become irrevocable—
(a) the statement; and
(b)
the date specified for the purposes of this section in relation to the statement—
as at the date of the declaration may not be
amended.".
29. Payments in respect of financial obligations
In section 88B(1)(a) of the Principal Act, for "gas company" substitute "gas corporation".
30. Proceedings
In section 96A of the Principal Act after
"company" (wherever occurring) insert "or theOffice of Gas Safety".
31. New section 101B inserted
After section 101A of the Principal Act insert—
"101B. Supreme Court—limitation of jurisdiction
It is the intention of sections 45A and 45Z to
alter or vary section 85 of the ConstitutionAct 1975.".
32. Amendment of section 115C
Gas Industry (Amendment) Act 1998
| s. 33 | Act No. 40/1998 |
After section 115C(6) of the Principal Act insert—
"(6A) If the Treasurer and the Minister, with the
agreement of the PGC, declare that a
statement given under this section by the
PGC has become irrevocable—
(a) the statement; and
(b)
the date specified for the purposes of this section in relation to the statement—
as at the date of the declaration may not be
amended.".
33. Nomination of VENCorp as transferor company
After section 115B of the Principal Act insert— "(2) The Treasurer may nominate the Victorian
Energy Networks Corporation established under Division 2A of Part 2 as a transferor company for the purposes of this Part.".
34. New Part 15 inserted in Principal Act
Before the Schedules to the Principal Act insert—
'PART 15—PROHIBITED INTERESTS
Division 1—Preliminary
150. Definitions
In this Part—
"associate" has the meaning, in relation to aperson, it would have under Division 2
of Part 1.2 of the Corporations Law
if—
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 34 (a) section 12(1) of that Law, there
for paragraphs (b) and (c) of "or
(b) whether the primary person a position to exercise certain powers in relation to a body corporate;"; and
(b)
sections 13, 14, 16(2) and 17 of that Law were repealed;
"initial distributor" means—
(a) Stratus Networks Pty Ltd A.C.N. 079 089 099; (b) Multinet Gas Pty Ltd A.C.N. 079 088 930; (c) Westar Pty Ltd A.C.N.
079 089 008;(d) under a licence, provides services
a gas distribution company that, pipeline—
(i) to gas retailers who sell gas to persons; or
(ii) to persons—
who—
(iii) were customers of a person referred to in paragraph (a), (b) or (c) of the definition of "new retailer" immediately
before the licence was issued
to the gas distribution
company; and
Gas Industry (Amendment) Act 1998
| s. 34 | Act No. 40/1998 |
(iv) were not non-franchise customers immediately before that licence was issued or, if the licence was
issued on or after 1
September 2001,
immediately before that date;
"new retailer" means—
(a) Ikon Energy Pty Ltd A.C.N. 079 089 553; (b) Kinetik Energy Pty Ltd A.C.N. 079 089 188; (c) Energy 21 Pty Ltd A.C.N. 079 089 213; (d) a gas retailer that, under a licence, sells gas by retail to persons who— (i) were customers of a person referred to in paragraph (a), (b) or (c) immediately before
the licence was issued to the
gas retailer; and(ii) were not non-franchise customers immediately before that licence was issued or, if the licence was
issued on or after 1
September 2001,
immediately before that date;"officer", in relation to a corporation, has
the same meaning as in section 9 of the
Corporations Law;
Gas Industry (Amendment) Act 1998
Act No. 40/1998
"related body corporate" has the same meaning as in the Corporations Law;
"relevant agreement" means an agreement, arrangement or understanding—
(a) whether formal or informal or and
(b)
whether written or oral or partly written and partly oral; and
(c)
whether or not having legal or equitable force and whether or not based on legal or equitable rights;
"relevant corporation" means gas
distribution company, gas retailer,
initial distributor, new retailer, owner
or operator of the Port Campbell
facility, owner or operator of a
transmission pipeline, significant
producer, TPA or VENCorp;
"share" has the same meaning as in the Corporations Law;
"TPA" means—
(a) Transmission Pipelines Australia
Pty Ltd A.C.N. 079 089 268;(b) operates the whole, or the
a body corporate that owns or system;
(c) a related body corporate of a body corporate referred to in paragraph (a) or (b);
"voting share", in relation to a corporation, has the same meaning as in section 9 of the Corporations Law.
Gas Industry (Amendment) Act 1998
| s. 34 | Act No. 40/1998 |
151. Relevant interest in, and entitlement to, shares
(1) For the purposes of this Part, a person has a
person would be taken to have a relevant
interest in the share because of Division 5 ofrelevant interest in a share if, and only if, the person does not have a relevant interest in a share in a corporation only because the person has a right of pre-emption in relation to that share if the corporation—
(a) was formed by two or more persons for the purpose of enabling those persons to carry on an activity jointly by means of their joint control of, or by means of their ownership of shares in, that corporation; and (b) those persons, or persons who have acquired some or all of the shares in that corporation, continue to carry on that activity jointly by either of those
means.(2) For the purposes of this Part, the shares in a
corporation to which a person (being the
corporation or any other person) is entitled
include shares in the corporation to which
the person is entitled in accordance with
section 609 of the Corporations Law as if a
reference in that section of that Law to a
relevant interest were a reference to a
relevant interest to which sub-section (1)
applies.
(3) Without derogating from section 158 or 159, the regulations may provide that relevant interests, or particular classes of relevant interests, in shares, or in particular classes of
Gas Industry (Amendment) Act 1998
s. 34
s. 34
Act No. 40/1998
shares, are, in such circumstances and
subject to such conditions (if any) as are
specified in the regulations, to be
disregarded for such purposes as arespecified in the regulations.
152. Corporations Law Law is a reference to that Law as it would apply if references in that Law to a body corporate, corporation or company included references to—
(a)
a body corporate of any kind wherever formed or incorporated and whether formed or incorporated under that Law or any other law; and
(b)
any unincorporated body, being a society, association, company of proprietors or other body, wherever
formed, that, under the law of its place
of formation, may sue or be sued, or
may hold property in the name of the
secretary or some other officer of the
society, association or body, or in the
name of any trustee or trustees; and(c)
any unincorporated body, being a society, association, company of proprietors or other body or
undertaking to which is applied, under
the laws of the place of its formation,
with or without exceptions, a law in
force in that place relating to
companies or corporations as if it were
a company or corporation within the
meaning of that law.
153. Unit trusts
Gas Industry (Amendment) Act 1998
| s. 34 | Act No. 40/1998 |
If assets used in, or liabilities of, the business
carried on by a relevant corporation form
part of the trust estate of a unit trust, then, for
the purposes of this Part, units in the unit
trust are deemed to be shares in a relevant
corporation the business of which is thebusiness of the trust estate of the unit trust.
154. If the whole or a portion of the share capital
of a corporation consists of stock, a referenceStock corporation as a percentage is, in relation to an amount of stock, a reference to the amount of stock that represents that number of shares.
155. Controlling interest sections 158 and 159, a person has a controlling interest in a corporation if the person—
(a)
is entitled to more than 20% of the voting shares in the corporation; or
(b)
is entitled to shares in the corporation that confer or, if a dividend were declared or a distribution of profits were made by the corporation, would confer a right to receive the benefit of more than 20% of the dividend or distribution; or
(c)
is entitled to shares in the corporation that confer or, in the event of any other distribution of property or rights by the corporation, whether on dissolution or
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 34 otherwise, would confer an entitlement to receive the benefit of more than 20% of the property and rights; or
(d) is able, whether alone or in concert omission or otherwise, to dominate or control—
(i) the corporation; or
(ii) the financial and operating
policies or management of the
corporation; or(iii) the activities of the corporation in the gas industry.
156. Substantial interest sections 158 and 159, a person has a substantial interest in a corporation if the person—
(a)
is entitled to more than 5% of the voting shares in the corporation; or
(b)
is entitled to shares in the corporation that confer or, if a dividend were declared or a distribution of profits were made by the corporation, would confer a right to receive the benefit of more than 5% of the dividend or distribution; or
(c)
is entitled to shares in the corporation that confer or, in the event of any other distribution of property or rights by the corporation, whether on dissolution or otherwise, would confer an entitlement to receive the benefit of more than 5% of the property and rights.
Gas Industry (Amendment) Act 1998
| s. 34 | Act No. 40/1998 |
157. Application of Part to partnerships
(1) In this section—
"partner" includes member of an
unincorporated joint venture;
"partnership" includes unincorporated joint
venture.
(2) This Part applies to partnerships, and
partners, as if a partnership were a
corporation and a partner were a member of
a corporation.
(3) For the purposes of this Part—
(a)
a partnership is deemed to be a corporation and a person;
(b) a partner is deemed—
(i) to be a member of the corporation; and
(ii) proportion to all the shares in the
corporation as the partner's rightto hold shares bearing the same of the partnership bears to the sum of the rights of partners to receive such distributions;
(c)
rights and powers of a partner in respect of the partnership, including voting rights and rights to dispose of interests in the partnership or the partnership property are deemed to be rights and powers of a member of a corporation attached to and conferred by that member's shares in the corporation;
(d)
the committee of management (by whatever named called) of a
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 34 partnership is deemed to be the board
of directors of the partnership;
(e)
a meeting of the partners of a partnership is deemed to be a general meeting of a corporation.
(4) For the purposes of this Part and its
application to a partnership, "relevant
corporation" includes a partnership the
members of which are persons who are gas
distribution companies, gas retailers, initial
distributors, new retailers, owners or
operators of the Port Campbell facility,
owners or operators of transmission
pipelines, significant producers, TPA or
VENCorp.158. Certain shareholders agreements to be disregarded
For the purposes of determining under this Part whether a person has a controlling interest or a substantial interest in a relevant corporation, a relevant interest of an associate of the person must be disregarded if the Treasurer certifies in writing that the Treasurer is satisfied—
(a)
that the association arises solely under section 12(1)(e) or section 15(1) of the Corporations Law by virtue of
provisions of the articles of association
or other constituent documents of a
corporation or other entity, a
shareholders' agreement or other
consortium arrangements and that the
provisions are not unusual having
regard to conventional or usual
investment considerations; and
Gas Industry (Amendment) Act 1998
| s. 34 | Act No. 40/1998 |
(b)
that the person or any related corporation does not have the power—
(i) composition of the board of
directors of the relevant
corporation otherwise than by
control of the exercise at a general
meeting of the relevant
corporation of voting rights in
respect of particular shares or a
particular proportion of shares in
the relevant corporation or the
exercise of powers of appointmentto control or influence the of the relevant corporation; or
(ii) of affairs of the relevant
corporation otherwise than by
control of the exercise at a general
meeting of the relevant
corporation of voting rights in
respect of particular shares or a
particular proportion of shares in
the relevant corporation or by theto control or influence the conduct the person.
159. Certain "see-through" interests to be disregarded
For the purpose of determining under this Part whether a person has a controlling interest or a substantial interest in a relevant corporation, a relevant interest that the person has solely by virtue of section 32(c) or 33 of the Corporations Law must be disregarded if the Treasurer certifies in writing—
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 34
(a)
that the Treasurer is satisfied that the person or any related corporation of the person does not have the power—
(i) composition of the board of
directors of the relevant
corporation otherwise than by
controlling the exercise at a
general meeting of the relevant
corporation of not more than 20
per centum of the votes that may
be cast at general meetings or
exercising powers of appointment
of not more than one-fifth of theto control or influence the corporation; or
(ii) of affairs of the relevant
corporation otherwise than by
controlling the exercise at ato control or influence the conduct corporation of voting rights in respect of not more than 20 per centum of the voting shares or by the actions of directors appointed by it being not more than one-fifth of the directors of the relevant corporation; and
(b) that the Treasurer is satisfied that—
(i) the person has a controlling
interest, the person does notin the case of determining whether (A) the power to exercise the
votes in respect of, or to
control the disposal of, more
Gas Industry (Amendment) Act 1998
| s. 34 | Act No. 40/1998 |
than 20 per centum of the
voting shares in the relevant
corporation, not including a
right of pre-emption whether
direct or indirect in relation
to those shares; or(B) the right to receive directly or indirectly the benefit of more than 20 per centum of
the dividends declared or
distribution of profits made
by the relevant corporation
in respect of a financial year
of the relevant corporation;
or(C) the right to receive directly or indirectly the benefit of more than 20 per centum of
the property and rights of the
relevant corporation on adissolution or otherwise; or
(ii) the person has a substantial
interest, the person does notin the case of determining whether (A) the power to exercise the
votes in respect of, or to
control the disposal of, more
than 5 per centum of the
voting shares in the relevant
corporation, other than a
right of pre-emption whether
direct or indirect in relationto those shares; or
(B) the right to receive directly
or indirectly the benefit of
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 34 more than 5 per centum of
the dividends declared or
distribution of profits made
by the relevant corporation
in respect of a financial year
of the relevant corporation;
or(C) the right to receive directly or indirectly the benefit of more than 5 per centum of the property and rights of the
relevant corporation on a dissolution or otherwise.
160. Effect of certificate under section 158 or 159
A certificate of the Treasurer under section 158 or 159 continues to have effect unless the Office determines that—
(a)
a change has occurred in respect of the matters to which the certificate relates; and
(b) the certificate ceases to have effect.
161. Application and construction of Part
(1) This Part (including any provision of the
Corporations Law referred to or applied for the purposes of this Part) applies in relation to any transaction, agreement, arrangement, understanding or undertaking—
(a) arrangement, understanding or
whether the transaction, agreement, this State or elsewhere; and
(b) whether the shares (if any) to which the understanding or undertaking relates
Gas Industry (Amendment) Act 1998
| s. 34 | Act No. 40/1998 |
| are registered in this State or elsewhere; and |
(c) transaction, agreement, arrangement,
whether the proper law of the of this State or not.
(2) This Part is relevant legislation for the
purposes of the Office of the Regulator-
General Act 1994.
Division 2—Prohibited interests 162. Prohibited interests
(1) It is unlawful for a person to hold a
prohibited interest.
(2) A significant producer holds a prohibited
interest—
(a) if—
(i) the significant producer has a interest in a gas retailer; and
(ii) the gas retailer is permitted by its licence or an Order under section 48C, to sell gas to customers other
than customers who are non-
franchise customers because of
section 6B(1)(b);
(b)
if the significant producer has a controlling interest or a substantial interest in an initial distributor that is a related body corporate of a new retailer and was such a related body corporate when it became a gas distribution company;
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 34
(c)
if the significant producer has a controlling interest in a gas distribution company;
(d)
if the significant producer has a substantial interest in more than one gas distribution company;
(e) if the significant producer—
(i) owns or operates, or controls the facility; or
(ii) operation of, a transmission
pipeline, other than a pipeline
constructed by or on behalf of a
person or persons that is or
includes the significant producerowns or operates, or controls the related body corporate when the pipeline was constructed; or
(iii) substantial interest in a
corporation that owns or operates,
or controls the operation of, the
Port Campbell facility or ahas a controlling interest or a referred to in sub-paragraph (ii).
(3) A person who has a controlling interest in a
significant producer holds a prohibited
interest—
(a) if the person—
(i) owns or operates, or controls the facility; or
(ii) owns or operates, or controls the operation of, a transmission
Gas Industry (Amendment) Act 1998
| s. 34 | Act No. 40/1998 |
pipeline, other than a pipeline
constructed by or on behalf of a
person or persons that is or
includes the significant producer
or a body corporate that was a
related body corporate when thepipeline was constructed; or
(iii) substantial interest in a
corporation that owns or operates,
or controls the operation of, the
Port Campbell facility or ahas a controlling interest or a referred to in sub-paragraph (ii);
(b) if—
(i) the person has a controlling a gas retailer; and
(ii) the gas retailer is permitted by its licence or an Order under section 48C, to sell gas to customers other
than customers who are non-
franchise customers because of
section 6B(1)(b);
(c)
if the person has a controlling interest or a substantial interest in an initial distributor that is a related body corporate of a new retailer and was such a related body corporate when it became a gas distribution company;
(d)
if the person has a controlling interest in a gas distribution company;
(e)
if the person has a substantial interest in more than one gas distribution company.
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 34
(4) Subject to sub-section (15), a gas
transmission company holds a prohibited
interest if the gas transmission company has
a controlling interest or a substantial interestin a significant producer.
(5) Subject to sub-section (15), a person who has
a controlling interest in a gas transmission company holds a prohibited interest if the person has a controlling interest or a
substantial interest in a significant producer. (6) TPA holds a prohibited interest if—
(a) TPA has a controlling interest in a new retailer or an initial distributor; or (b) TPA has a substantial interest in more than one new retailer; or (c) TPA has a substantial interest in more than one initial distributor; or (d) TPA has a controlling interest or substantial interest in VENCorp. (7) A person who has controlling interest in TPA holds a prohibited interest if—
(a) the person has a controlling interest in a new retailer or an initial distributor; or (b) the person has a substantial interest in more than one new retailer; or (c) the person has a substantial interest in more than one initial distributor; or (d) the person has a controlling interest or a substantial interest in VENCorp. (8) VENCorp holds a prohibited interest if it has a controlling interest or substantial interest in TPA.
Gas Industry (Amendment) Act 1998
| s. 34 | Act No. 40/1998 |
(9) A new retailer holds a prohibited interest
if—
(a)
the new retailer has a controlling interest in TPA; or
(b) the new retailer has—
(i) a controlling interest in more than one initial distributor; or
(ii) distributor and a substantial
a controlling interest in one initial initial distributor; or
(iii) a substantial interest in more than 2 initial distributors; or
(c)
the new retailer has a controlling interest in another new retailer; or
(d)
the new retailer has a substantial interest in more than one other new retailer.
(10) An initial distributor holds a prohibited
interest if—
(a)
the initial distributor has a controlling interest in TPA; or
(b) the initial distributor has—
(i) a controlling interest in more than one new retailer; or
(ii) a substantial interest in one new retailer and a substantial interest in more than one other new
retailer; or
(iii) a substantial interest in more than 2 new retailers; or
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 34
(c) the initial distributor has a controlling interest in another initial distributor; or (d) the initial distributor has a substantial interest in more than one other initial distributor.
(11) A person who has a controlling interest in a new retailer holds a prohibited interest if the person has—
(i) a controlling interest in TPA; or
(ii) a controlling interest in more than one initial distributor; or
(iii) a controlling interest in one initial distributor and a substantial interest in more than one other initial distributor; or
(iv) a substantial interest in more than 2 initial distributors.
(12) A person who has a controlling interest in an
initial distributor holds a prohibited interest
if the person has—
(i) a controlling interest in TPA; or
(ii) a controlling interest in more than one new retailer; or
(iii) a controlling interest in one new retailer and a substantial interest in more than one other new retailer; or
(iv) a substantial interest in more than 2 new retailers.
(13) A person holds a prohibited interest if the
person has—
(a)
a controlling interest in more than one new retailer; or
Gas Industry (Amendment) Act 1998
| s. 34 | Act No. 40/1998 |
(b) a substantial interest in more than 2 new retailers; or (c) a controlling interest in one new retailer and a substantial interest in more than one other new retailer; or (d) a controlling interest in more than one initial distributor; or (e) a substantial interest in more than 2 initial distributors; or (f) a controlling interest in one initial distributor and a substantial interest in more than one other initial distributor. (14) A person who owns or operates, or controls the operation of, the Port Campbell facility holds a prohibited interest if the person has a
controlling interest or a substantial interest in
a significant producer.
(15) Sub-sections (4) and (5) do not apply, in
relation to a significant producer, to a gas
transmission company or person who has a
controlling interest in a gas transmission
company if the gas transmission company's
pipeline was constructed by or on behalf of a
person or persons that is, or includes, the
significant producer or a body corporate that
was a related body corporate when the
pipeline was constructed.
163. Other provisions relating to prohibited interests
(1) A person, not being a relevant corporation,
does not hold a prohibited interest within the
meaning of section 162 because the person
has a controlling interest or a substantial
interest in a relevant corporation if—
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 34
(a)
ORG is satisfied that each such interest is held only as a passive institutional investment; and
(b)
ORG determines in writing that the person does not hold a prohibited interest.
(2) At any time after a determination is made
under sub-section (1) in relation to a person, that person, determine that circumstances have changed so that it is no longer satisfied as to the matters set out in sub-section (1)(a) in relation to the person and that the person has a prohibited interest within the meaning of section 162. (3) On and after 1 July 2002, a person does not
hold a prohibited interest within the meaning
of section 162 if—
(a)
ORG is satisfied that, were a person to hold such a prohibited interest, it would not be likely substantially to lessen competition in a market in which gas is bought and sold in Victoria, whether or not that market extends beyond Victoria; and
(b) ORG so determines in writing.
(4) For the purposes of this Part—
(a)
a relevant corporation is not capable of having a prohibited interest in itself; and
(b)
if 2 or more relevant corporations are carrying on activities in the same business undertaking, one of those relevant corporations is not capable of
Gas Industry (Amendment) Act 1998
| s. 34 | Act No. 40/1998 |
| having a prohibited interest in another of those relevant corporations. |
164. Temporary exemption from prohibition
(1) The Treasurer may, in writing given to ORG,
declare that a specified person does not, by
reason only of having a specified controlling
interest or specified substantial interest, have
a prohibited interest during a specified
period ending not more than 6 months after
the day on which the declaration is made.
(2) A declaration under sub-section (1) may be
made subject to such conditions as are
specified in it.
(3) A declaration under this section has effect
according to its terms and ceases to have
effect—
(a) at the end of the specified period; or
(b) upon a breach of a condition to which it is expressed to be subject. 165. Power to require information relating to interests
(1) ORG may, by notice in writing served on a
person who is, or is suspected by ORG of
being—
(a) entitled to shares in a relevant corporation; or (b) the holder of a controlling interest in a relevant corporation; or (c) an owner or operator of, or a controller of the operation of, the Port Campbell facility or a transmission pipeline— require the person to furnish information specified in the notice for the purpose of
Gas Industry (Amendment) Act 1998
Act No. 40/1998
determining whether that person or any other
person has, or is taking action to acquire, a
prohibited interest.(2) A notice under sub-section (1) may require the person on whom the notice is served or, if that person is a corporation, 2 directors of the corporation, to verify by statutory
declaration any information furnished in
compliance with the notice.
(3) If—
(a) a person on whom a notice under sub- section (1) has been served fails to furnish, within the time allowed in the notice, the information required by the notice, verified as required by the notice; or (b) information furnished by the person in response to the notice is, in the opinion of ORG, by reason of anything included in it or omitted from it, false
or misleading in a material particular—ORG may, by reason only of that fact, by notice in writing served on a person, do one or more of the following—
(c)
determine that the person is an associate of another, or that another is an associate of that person;
(d)
determine that the person, or another to whom a determination under paragraph (c) relates, is entitled to specified shares in a relevant corporation;
(e)
determine that the voting rights attaching to all or any of the shares to which a determination under paragraph (d) relates are suspended;
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(f)
determine that a person is an owner or operator of, or a controller of the operation of, the Port Campbell facility or a transmission pipeline;
(g)
determine that the person, or another person to whom a determination under paragraph (c) relates, has a prohibited interest.
166. Disposal of interest
(1) If ORG—
(a)
makes a determination under section 165(3); or
(b) forms the opinion—
that a person (in this section referred to as
"the offender") has a prohibited interest,ORG may, by notice in writing served—
(c) if the offender holds shares to which or
(d)
on any other person who holds shares to which the offender is entitled—
determine that the offender or that other
person must dispose of the relevant shares
otherwise than to an associate of the
offender, within a period specified in the
notice, being not less than 3 months after
service of the notice, and that, until those
shares are disposed of, the voting rights
attaching to all or to specified shares in a
relevant corporation to which the offender isentitled are suspended.
(2) For the purposes of sub-section (1), the
relevant shares that a person may be required by a notice under that sub-section to dispose
Gas Industry (Amendment) Act 1998
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Act No. 40/1998
of otherwise than to an associate of the
offender are—
(a) subject to paragraph (b), any shares held by the person that would need to be disposed of in order to cause the offender to cease to have a prohibited interest; or (b) if, after all the shares held by the person so disposed of, the offender would continue to have a prohibited interest, the total number of those shares.
(3) For the purposes of this section a person is
not to be taken to have disposed of shares to which an offender is entitled unless and until the person ceases to hold the shares and the
offender ceases to be entitled to the shares. (4) If a person served with a notice of
determination under sub-section (1)
requiring the person to dispose of shares fails
to comply with the notice within the period
specified in the notice, the shares last
registered in the name of that person that
caused the person to have a prohibited
interest and specified by ORG by notice in
writing served on the person are, by force ofthis sub-section, forfeited to the State.
(5) If—
(a)
a person served with a notice of a determination under sub-section (1) requiring the person to dispose of shares fails to comply with the notice within the period specified in the notice; and
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(b) the person is a member of a partnership and the shares are an interest in the partnership; and (c) the person is one of 2 or more persons constituting a relevant corporation— ORG may, by notice in writing given to the licensee, revoke the licence (if any) held by the person under this Act or make a
determination under section 167.
(6) ORG must cause written notice of—
(a) a determination under sub-section (1) requiring a person to dispose of shares in a relevant corporation; or (b) to be served on the relevant person. a determination under section 165(3)(e) suspended—
(7) If ORG—
(a)
makes a determination under section 165(3); or
(b) forms the opinion—
that a person (in this section referred to as
"the offender") has a prohibited interest
because of the circumstances referred to in
section 155(d), ORG may, by notice in
writing served on the offender, determinethat the offender—
(c) controlling the relevant corporation, the
financial and operating policies ormust desist from dominating or activities of the corporation as a relevant corporation; and
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Act No. 40/1998
(d) must terminate a relevant agreement— to the extent necessary to prevent it having a prohibited interest, within a period specified in the notice, not being less than 3 months
after service of the notice.
167. Voting rights in respect of certain shares corporation of a declaration of ORG under this Part—
(a)
that a person is an associate of another; or
(b)
that a person has a prohibited interest in a relevant corporation; or
(c) that voting rights are suspended—
the determination is binding and has effect relevant corporation held after receipt by the relevant corporation of the notice.
for the purposes of the application of this
168. Revocation of licence
(1) If section 166(5) applies or if ORG makes a
the opinion under section 166(1), that a
person has a prohibited interest because of
its ownership, operation or control of thedetermination under section 165(3), or forms pipeline, ORG may by notice in writing served on the person determine that the person dispose of an interest in land or other property or rights, or terminate a relevant agreement, to the extent necessary to prevent it having a prohibited interest within a period specified in the notice, not being less than 3 months after the service of the notice.
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(2) If a person does not comply with a
determination under sub-section (1), ORG
may by notice in writing given to the person,
revoke the licence (if any) held by the personunder this Act.
169. Annulment of certain resolutions
(1) If ORG is of the opinion that a resolution of
a general meeting of the relevant corporation
has been passed as a result of the admission
of votes that should not, by virtue of a
declaration of ORG under section 165(3) or
166(1) have been admitted, ORG may, by
notice in writing served on the relevant
corporation, declare the resolution to have
been (at all times) null and void.
(2) If notice of a declaration under sub-section
(1) is served on a relevant corporation, ORG
must, at the same time or as soon as
practicable thereafter, cause written notice of
the declaration to be served on each person
whose votes should not, in the opinion of
ORG, have been admitted.
(3) A notice under sub-section (1) does not have any effect unless it is served on the relevant corporation within one month after the date of the resolution to which it relates.
170. Making, review and revocation of determination by ORG
(1) A determination may be made by ORG
under this Part on the basis of such
information as ORG considers sufficient in
the circumstances.
(2) A determination of ORG under this Part is effective when written notice is served on the relevant person.
Gas Industry (Amendment) Act 1998
Act No. 40/1998 s. 34
(3) Notwithstanding that an application is made
under section 37 of the Office of the a determination of ORG under this Part, the determination continues to have effect pending determination of the application except as otherwise determined by ORG.
(4) ORG may, by notice in writing served on the person on whom notice of the determination was served, revoke or vary a determination
of ORG under this Part with effect from the date of the determination or some other date determined by ORG.
171. Appeal against determination of ORG
(1) Despite anything to the contrary in theOffice of the Regulator-General Act 1994, a person on whom notice of a determination of ORG is served under this Part may appeal to the Supreme Court against the
determination.
(2) An appeal under this section must be
instituted within 21 days after notice of the determination under appeal is served on the appellant and that period of limitation may not be extended.
(3) The Supreme Court may, on an appeal under
this section, if satisfied that proper grounds for making the determination did not exist, quash or vary the determination, either
conditionally or unconditionally and with
effect from the date of the determination or
some other date, as the Court thinks fit, and
make any consequential or ancillary ordersthat may be just.
(4) Notwithstanding an appeal under this
section, a determination other than—
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(a)
a determination under section 166(1) requiring a person to dispose of shares in the relevant corporation; or
(b)
a determination under section 166(4) that shares in the relevant corporation are forfeited to the State; or
(c) a determination under section 168—
continues to have effect pending
determination of the appeal.
(5) Except as provided in this Part, a
determination of ORG under this Part may
not be challenged or called into question.
172. Sale of forfeited shares
(1) ORG is to sell any shares forfeited to the State under this Part.
(2) For the purposes of a sale of shares under sub-section (1), ORG is not bound by any restriction on the sale of shares whether
contained in the memorandum or articles of association of the relevant corporation or in any other document.
(3) Any money realised from the sale of
forfeited shares under this section must, after
deduction of the reasonable costs of the
forfeiture and sale be paid to the person from
whom the shares were forfeited.
173. Service to be served on a person—
(a) in the case of a natural person—
(i) may be served personally on the person; or
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(ii) may be sent by post to the person at his or her last known place of residence, business or employment; or
(b)
in the case of a company or other body, may be left at, or sent by post to, its registered office or a place of business of the company or body whether within the State or elsewhere.'.
_______________
Gas Industry (Amendment) Act 1998
| s. 35 | Act No. 40/1998 |
PART 3—AMENDMENT OF ELECTRICITY INDUSTRY
ACTS
35. Amendment of Electricity Industry Act 1993
In the Electricity Industry Act 1993—
(a)
in section 3(1), the definition of "PoolCo" is repealed;
(b)
in section 3(1) insert— ' "VENCorp" means Victorian Energy
Networks Corporation Pty Ltd
A.C.N. 081 026 066;';
(c) and "Victorian Power Exchange"
in section 3(1), for the definitions of "VPX" ' "VPX" or "Victorian Power Exchange"
means Victorian Energy Networks
Corporation Pty Ltd A.C.N.081 026 066;'.
36. New Part 2A substituted
For Part 2A of the Electricity Industry Act 1993 substitute—
"PART 2A—ELECTRICITY TRANSMISSION
41A. Electricity transmission
(1) The Office must ensure that at all times
VENCorp or another person is appointed by the Office to carry out the functions referred to in sub-section (3).
(2) VENCorp or any other person appointed for
the purposes of this section must carry out
the functions referred to in sub-section (3) in
accordance with the terms of the
appointment and such directions (if any) as
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Act No. 40/1998
are given to VENCorp or the other person in
writing by the Office.
(3) The functions are—
(a) to plan, and direct the augmentation of, the electricity transmission system; (b) to provide information and other services to facilitate decisions for investment and the use of resources in the electricity industry.
(4) This section has effect subject to the
National Electricity (Victoria) Law and the
National Electricity Code.".
37. Further amendments to Electricity Industry Act 1993
In the Electricity Industry Act 1993—
(a)
in section 4(1), omit "VPX," (where twice occurring);
(b) in section 26(4), omit "VPX,";
(c)
in section 28, omit "or VPX" (wherever occurring);
(d) in section 29(3), omit "VPX,";
(e)
in sections 30, 31, 32, and 33, omit "or VPX" (wherever occurring);
(f)
in sections 35(13), 36(2), 36A(3) and 37(6), omit "VPX,";
(g) in section 38(1)—
(i) omit "and VPX";
(ii) omit "or VPX".38. Amendment of Electricity Industry (Further Miscellaneous Amendment) Act 1997
Gas Industry (Amendment) Act 1998
Act No. 40/1998
In the Electricity Industry (Further
Miscellaneous Amendment) Act 1997—
(a) in section 2(2), omit "and Part 3";
(b) Part 3 is repealed.
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Gas Industry (Amendment) Act 1998
Act No. 40/1998 Notes
NOTES
†
Minister's second reading speech—
Legislative Assembly: 23 April 1998
Legislative Council: 19 May 1998
The long title for the Bill for this Act was "to amend the Gas Industry
Act 1994, the Electricity Industry Act 1993 and the Electricity
Industry (Further Miscellaneous Amendment) Act 1997 and for otherpurposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 23 April 1998
Legislative Council: 19 May 1998
Absolute majorities:
Legislative Assembly: 14 April 1998
Legislative Council: 19 May 1998
0
0
0