Untitled document
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997
TABLE OF PROVISIONS
Section Page PART 1—PRELIMINARY 1
1. Purpose 1 2. Commencement 1
PART 2—GAS INDUSTRY ACT 1994 3
3. Principal Act 3 4. Definitions and interpretation 3 5. New sections 5A and 5B inserted 9 5A. Declaration of gas companies 10 5B. Nomination of market participants 10 6. Amendment of section 6 10 7. New sections 6A, 6B and 6C inserted 10 6A. Application of Act to certain distribution, retail and
transmission companies 11 6B. Non-franchise customer 11 6C. Supply point 14
8. New section 6D inserted 14 6D. Conferral of functions on ACCC 15 9. New sections 8A and 8B inserted 15 8A. Application of Office of the Regulator-General
Act 1994 15 8B. Objectives of ORG 15
10. Statutory gas companies 16 11. New Division 2A inserted in Part 2 16 Division 2A—Victorian Energy Networks Corporation 16 16A. Establishment 16
16B. VENCorp not to represent the Crown 17 16C. Functions and powers relating to gas industry 17
16D. General powers 18
16E. Board of Directors 19
16F. Directors 19
16G. Appointment of directors 19 16H. VENCorp may give directions 19
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Section Page
16I. Protection from liability 22 16J. Immunity from suit 23
16K. Continuing offences 23
16L. Review of this Part 23
12. Directors of VENCorp not to have interest in electricity licensee 24 13. Heading to Division 3 24 14. New section 17 substituted 24
17. Schedule 1 24
15. New Part 3 substituted 25 PART 3—TRANSMISSION AND DISTRIBUTION OF GAS 25
32. Gas retailer not liable for failure to supply gas 25 33. Exemption from liability to transmit or convey gas 26
16. Amendment of Part 4 26 17. New Parts 4A and 4B inserted 26 PART 4A—REGULATION OF GAS INDUSTRY 27 Division 1—Regulation of tariffs and charges 27
48A. Tariffs and charges Orders 27 Division 2—Licensing of gas distribution companies and gas
retailers 28
48B. Offence to distribute or retail gas without licence 28
48C. Exemptions 29
48D. Application for licence 30 48E. Determination of application 30 48F. Provisions relating to licences 31 48G. Conditions in licence 34 48H. Variation or revocation of licence 36 48I. Gazettal requirement 37 48J. Appointment of administrator 37
48K. Transfer of licence 48M. Obligations of gas retailer
38
48L. Transitional provisions 39 40
Division 3—Market and System Operation Rules 41 48N. MSO Rules 41 48O. Proceedings 42
48P. Criminal proceedings do not lie 43
48Q. Civil penalty 44 48R. Injunctions 45 48S. Actions for damages for contravention of conduct
provision 47 48T.
Declaratory relief 48
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Section Page
PART 4B—THIRD PARTY ACCESS 49 Division 1—The Access Code 49
48U. Establishing the Access Code 49
Division 2—Arbitration of access disputes 53
48V. Definitions and application 53 48W. Where ACCC conducts arbitration 54 48X. Person to conduct arbitration 55 48Y. Hearing to be in private 55 48Z. Right to representation 56
48ZA. Procedure 56 48ZB. Particular powers of arbitrator 57 48ZC. Contempt 57 48ZD. Disclosure of information 57
48ZE. Power to take evidence on oath or affirmation 58 48ZF. Failing to attend as a witness 58
48ZG. Failing to answer questions etc. 58 48ZH. Intimidation etc. 59 48ZI. Party may request arbitrator to treat material as
confidential 60 48ZJ.
Parties to pay costs of an arbitration 60 Division 3—Proceedings for contravention of Part 61 48ZK. Proceedings 61
48ZL. Criminal proceedings do not lie 61
48ZM. Civil penalty 62 48ZN. Injunctions 63 48ZO. Actions for damages for contravention of conduct
provision 66
48ZP. Declaratory relief 66 Division 4—Administrative Appeals 68 48ZQ. Application for review 68
48ZR. Merits review of access arrangements 70
Division 5—General 72
48ZS. Preventing or hindering access 72 48ZT. Power to obtain information and documents 74
48ZU. Restriction on disclosure of confidential information 76 48ZV. Appeal against disclosure notice 79
18. New section 50 substituted 80
50. Agreement for operation of pipelines 80
19. Amendment of sections 51 and 51A 81 20. Rateability of property of public gas companies 82 21. Amendment of section 53 82
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Section Page
22. Amendment of section 54 83 23. New section 57 substituted 83
57. Obstruction of gas company 83
24. Amendment of Principal Act 83 25. New section 60A inserted 85
60A. Making of easements in sub-divisions 85
26. Amendment of section 61 85 27. Amendment of Part 6B 85 28. Amendment of Part 7 89 29. New sections 83A and 83B inserted 92
83A. Further interim arrangements— 92 83B. Agreement about certain easements 93
30. Amendment of Part 8 94 31. New Part 8A inserted 94 PART 8A—TRANSFER OF STAFF OF GASCOR OR GTC 94 87G. Definitions 94 87H. Relevant date 95
87I. List of staff 95 87J. Transfer of staff 96 87K. Future terms and conditions of transferred employees 97
87L. Superannuation 98
32. New sections 88A, 88B and 88C inserted 98
88A. Directions to public gas companies 98 88B. Payments in respect of financial obligations 99 88C. Government departments and local authorities 100
33. Amendment of the Principal Act 100 34. Amendment of section 100 100 35. Amendment of section 101 101 36. New section 101A inserted 101
101A. Exemption from Freedom of Information Act 1982 101
37. Regulations 101 38. New sections 104A and 104B inserted 102 104A. Annual reports of GASCOR transferees and GASCOR 102
104B. Annual reports of GTC transferees and GTC 104
39. New section 104C inserted 105
104C. Repeal of Public Authorities (Contributions)
Act 1966 105
40. New Parts 13A and 13B inserted 106 PART 13A—TRANSFER OF CERTAIN PROPERTY AND STAFF OF NOMINATED PUBLIC GAS COMPANIES 106 Division 1—Definitions and applications 106 115A. Definitions 106
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Section Page
115B. Nomination of transferor company 108
Division 2—Allocation of property 108
115C. PGC to prepare allocation statement 108 115D. Certificate of chief executive officer 109
Division 3—Transfer of property 110
115E. Property transferred 110 115F. Allocation of property etc. subject to encumbrances 111 115G. Substitution of party to agreement 112
115H. PGC instruments 112 115I. Proceedings 115K. Amendment of Register
112
115J. Interests in land 112 113
115L. Evidence 113 115M. Validity of things done under this Part 114 Division 4—Staff 115
115N. List of PGC staff 115 115O. Transfer of PGC staff 116 115P. Future terms and conditions of transferred employees 117
Division 5—Permits and licences under Pipelines Act 1967 118 115Q. Pipelines 118 PART 13B—PROVISIONS RELATING TO PRIVATISATION 120
115R. Treasurer may be party to agreement for sale 120 115S. Freedom of Information Act 1982 120
41. New Schedule 1A inserted 120 SCHEDULE 1A 120
PART 3—AMENDMENT OF OTHER ACTS 122
42. Borrowing and Investment Powers Act 1987 122 43. Country Fire Authority Act 1958 122 44. Electricity Industry (Further Miscellaneous Amendment) Act 1997 122 45. Essential Services Act 1958 123 46. Historic Buildings Act 1981 123 47. Melbourne City Link Act 1995 123 48. Pipelines Act 1967 123 49. Public Authorities (Dividends) Act 1983 124 50. State Electricity Commission Act 1958 124 51. State Owned Enterprises Act 1992 124
v
Section Page
52. Treasury Corporation of Victoria Act 1992 124
═══════════════
NOTES 125
vi
Victoria
No. 91 of 1997
Gas Industry (Further Amendment) Act
1997†
[Assented to 9 December 1997]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purpose
The purpose of this Act is to make further provision for the restructure and reform of the gas industry.
2. Commencement
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997
(1) This Part comes into operation on the day on which this Act receives the Royal Assent.
(2) Section 30 is deemed to have come into operation on 1 July 1997.
(3) Section 44 is deemed to have come into operation on 21 October 1997.
(4) Section 12 comes into operation on a day to be
proclaimed.
(5) Subject to sub-section (6), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.(6) If a provision referred to in sub-section (5) does
not come into operation before 1 January 1999, it
comes into operation on that day.
_______________
Gas Industry (Further Amendment) Act 1997
| s. 3 | Act No. 91/1997 |
PART 2—GAS INDUSTRY ACT 1994
No. 112/1994.
| Reprint No. 2 | 3. Principal Act |
| as at 22 | |
| August 1997. | In this Act, the Gas Industry Act 1994 is called the Principal Act. |
4. Definitions and interpretation
(1) In section 3 of the Principal Act insert—
"ACCC" means the Australian Competition and Consumer Commission established by section 6A of the Trade Practices Act 1974 of the Commonwealth and includes a member of the Commission or a Division of the Commission performing functions of the Commission;
"Access Code" means the Third Party Access Code established under Part 4B;
"ancillary supply point" means ancillary supply point as defined in section 6C(3);
"civil penalty provision" means—
(a)
in Part 4A, a provision of the MSO Rules that is prescribed as a civil penalty provision for the purposes of Division 3 of Part 4A;
(b) in Part 4B—
(i) section 48ZS;or
(ii) a provision of the Access Code that is prescribed as a civil penalty provision for the purposes of Part 4B;
"conduct provision" means—
(a)
in Part 4A, a provision of the MSO Rules that, under the MSO Rules, is a
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 4 conduct provision for the purposes of
Division 3 of Part 4A;
(b) in Part 4B—
(i) section 48ZS; or
(ii) a provision of the Access Code that, under the Access Code, is a conduct provision for the purposes of Part 4B;
"gas distribution company" means a person
declared under section 5A to be a gas
distribution company for the purposes of this
Act who—
(a)
holds a licence to provide services by means of a distribution pipeline; or
(b)
is exempt from a requirement to hold such a licence because of an Order under section 48C;
"gas distribution system" means—
(a) the system of distribution pipelines operated by GASCOR immediately before the commencement of section 11 of the Gas Industry (Further part of that system to which an Order under section 5(4) applies; and
(b) any distribution pipeline or system of section 5(2), is an approved connection;
"gas producer" means a person who carries on a business of producing natural gas;
"gas retailer" means a person declared under
section 5A to be a gas retailer for the
purposes of this Act who—
Gas Industry (Further Amendment) Act 1997
| s. 4 | Act No. 91/1997 |
(a) holds a licence to sell gas; or
(b) is exempt from a requirement to hold such a licence because of an Order under section 48C; "gas transmission company" means VENCorp or any other person who owns, operates or provides a service by means of a
transmission pipeline, being a person declared under section 5A to be a gas transmission company for the purposes of
this Act;
"gas transmission system" means—
(a) the system of transmission pipelines operated by GTC immediately before the commencement of section 11 of the Gas Industry (Further Amendment) Act 1997, other than any part of that system to which an Order under section 5(4) applies; and (b) any transmission pipeline or system of section 5(3), is an approved connection;
"licence" means a licence under section 48E;
"licensee" means the holder of a licence under
section 48E;
"market participant" means—
(a)
a person who is registered by VENCorp under the MSO Rules as a participant; or
(b)
if Rules have not been made under section 48N, a person nominated under section 5B;
"MSO Rules" means the rules made under
section 48N;
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 4 "natural gas" means a substance which is in a gaseous state at standard temperature and pressure and which consists of naturally
occurring hydrocarbons, or a naturally
occurring mixture of hydrocarbons and non-
hydrocarbons, the principal constituent ofwhich is methane;
"non-franchise customer", in relation to a
supply of gas from a supply point, means non-franchise customer in relation to that supply point within the meaning of section
6B;"ORG" means the Office of the Regulator-
General under the Office of the Regulator-
General Act 1994;
"public gas company" means a gas company—
(a)
that is a statutory authority or a company all the shares in which are held by or on behalf of the State or a statutory authority; or
(b)
all the shares in which are held by a company all the shares in which are held by or on behalf of the State or a statutory authority;
"Regulator"—
(a) a matter concerning a transmission
pipeline or a service provider of ain relation to a transmission pipeline, or ACCC;
(b)
in relation to a distribution pipeline, or a matter concerning a distribution pipeline or a service provider of a distribution pipeline, means ORG;
Gas Industry (Further Amendment) Act 1997
| s. 4 | Act No. 91/1997 |
"regulatory provision" means—
(a) in Part 4A, a provision of the MSO Rules that, under the MSO Rules, is a regulatory provision for the purposes of Division 3 of Part 4A; (b) in Part 4B a provision of the Access Code that, under the Access Code, is a regulatory provision for the purposes of Part 4B; "service provider", in relation to a pipeline or
proposed pipeline, means a person that,
within the meaning of the Access Code, is,
or is to be, the owner or operator of the
whole or any part of the pipeline or proposed
pipeline;
"statutory gas company" means GASCOR, GTC or VENCorp;
"supply point" means supply point within the meaning of section 6C;
"VENCorp" means the Victorian Energy
Networks Corporation established under
Division 2A of Part 2.
(2) In section 3 of the Principal Act—
(a) the definitions of "domestic customer" and "domestic tariff" are repealed; (b) in the definition of "gas", after "this Act" insert "or any provision of this Act"; (c) (a) except in Parts 2 and 7, means— for the definitions of "gas company" and ' "gas company"—
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 4 (i) distribution company, a gas
GTC, GASCOR, VENCorp, a gas company; or
(ii) a company that holds all the shares in a gas distribution company, a gas retailer or a gas transmission company;
(b)
in Part 2 means a statutory gas company;
(c)
in Part 7 means GTC or GASCOR or a company all the shares in which are held by GTC or GASCOR;
"gas corporation" means GTC, GASCOR
or GFCV;';
(d) in paragraph (a)(ii) of the definition of "transmission pipeline", for "515kPa" substitute "1050kPa"; (e) 5 to be a transmission pipeline— in the definition of "transmission pipeline", "(b) a pipeline that is declared under section
but does not include a pipeline declared under section 5 not to be a transmission pipeline;".
(3) In section 4 of the Principal Act, after "this Act"
insert "or any provision of this Act".
(4) At the end of section 5 of the Principal Act
insert—
'(2) VENCorp and a gas distribution company
may agree in writing that a distribution
pipeline or system of distribution pipelines
owned or operated, or to be owned or
operated, by that company and connected, or
Gas Industry (Further Amendment) Act 1997
| s. 5 | Act No. 91/1997 |
to be connected, to the system referred to in
paragraph (a) of the definition of "gas
distribution system" in section 3 is, or will
be, an approved connection for the purposes
of that definition.(3) VENCorp and another gas transmission
company may agree in writing that a
transmission pipeline or system of
transmission pipelines owned or operated, or
to be owned or operated, by that company
and connected, or to be connected, to the
system referred to in paragraph (a) of the
definition of "gas transmission system" in
section 3 is, or will be, an approved
connection for the purposes of that
definition.
(4) The Governor in Council, by Order in Council published in the Government Gazette—
(a)
may declare that a part of the system of distribution pipelines referred to in paragraph (a) of the definition of "gas distribution system" in section 3 is deemed not to be part of that system for the purposes of this Act;
(b)
may declare that a part of the system of transmission pipelines referred to in paragraph (a) of the definition of "gas transmission system" in section 3 is deemed not to be part of that system for the purposes of this Act.'.
5. New sections 5A and 5B inserted
After section 5 of the Principal Act insert—
Gas Industry (Further Amendment) Act 1997
s. 6
s. 7
Act No. 91/1997
"5A. Declaration of gas companies
The Governor in Council, by Order published in the Government Gazette—
(a)
may declare a person who owns, operates or provides services by means of a transmission pipeline to be a gas transmission company for the purposes of this Act;
(b)
may declare a person who owns, operates or provides services by means of a distribution pipeline to be a gas distribution company for the purposes of this Act;
(c)
may declare a person who sells gas to be a gas retailer for the purposes of this Act.
5B. Nomination of market participants
The Minister, on the recommendation of VENCorp, may nominate a person as a market participant for the purposes of Part 4A, being a person who is a gas company, gas producer, gas storage provider or service provider or any other person who carries out activities relating to the gas transmission system.".
6. Amendment of section 6
In section 6 of the Principal Act—
(a) for "GTC or GASCOR" (where first company";
(b) for "GTC or GASCOR" (where secondly company".
7. New sections 6A, 6B and 6C inserted
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997
After section 6 of the Principal Act insert—
'6A. Application of Act to certain distribution,
retail and transmission companies
The Governor in Council, by Order published in the Government Gazette, may declare that a reference in section 32, 33, 92 or 93 or Part 5 or 6 to a gas company does not include a reference to a specified gas distribution company, gas retailer or gas transmission company.
6B. Non-franchise customer
(1) For the purposes of this Act, a person is a
non-franchise customer in relation to a
supply of gas from a supply point—
(a) if the gas is supplied from a supply point installed on or after 1 December 1997, other than a supply point installed within one kilometre of a distribution pipeline that was in operation on 1 July 1997; (b) if the gas is supplied from a supply point on or after 1 September 1998 and before 1 September 1999 and— (i) 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
commencement of the supply,
whichever is the later; or(ii) the supply point is new and ORG is satisfied on reasonable grounds that the person will purchase not
less than 500 000 GJ of gas from
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 7 that supply point within a period of 12 months during the 3 years next following 1 September 1998
or the commencement of the
supply, whichever is the later;
(c) if the gas is supplied from a supply point on or after 1 September 1999 and before 1 September 2000 and— (i) the person had purchased not less than 100 000 GJ of gas from that supply point, or an ancillary
supply point, during the period of 12 months immediately preceding 1 September 1999 or the
commencement of the supply,
whichever is the later; or(ii) the supply point is new and ORG is satisfied on reasonable grounds that the person will purchase not
less than 100 000 GJ of gas from that supply point within a period of 12 months during the 3 years next following 1 September 1999
or the commencement of the
supply, whichever is the later;
(d)
if the gas is supplied from a supply point on or after 1 September 2000 and before 1 September 2001 and—
(i) than 5000 GJ of gas from that
supply point, or an ancillary
supply point, during the period of
12 months immediately preceding
1 September 2000 or thethe person had purchased not less whichever is the later; or
Gas Industry (Further Amendment) Act 1997
| s. 7 | Act No. 91/1997 |
(ii) the supply point is new and ORG is satisfied on reasonable grounds that the person will purchase not
less than 5000 GJ of gas from that
supply point within a period of
12 months during the 3 years next
following 1 September 2000 or
the commencement of the supply,
whichever is the later;
(e) if the gas is supplied from a supply point on or after 1 September 2001. (2) A person who, by reason of sub-section (1),
becomes a non-franchise customer in
relation to a supply of gas from a supply
point, or an ancillary supply point, continues
to be a non-franchise customer in respect of
the supply of gas from that supply point or
ancillary supply point.
(3) Despite sub-section (1)(a), a customer of a
gas retailer who holds a new areas licence to
sell gas in a particular area is not a non-
franchise customer in relation to a supply
point in that area during the term of that
licence, unless sub-section (1)(b), (c), (d) or
(e) applies to the customer.
(4) For the purpose of sub-section (1)(a), a
one kilometre of a distribution pipeline if
supply point is deemed to be installed within installed.
(5) In this section—
"new areas licence" means a licence to sell natural gas by retail in an area in which natural gas was not generally available for purchase by retail before the issue
Gas Industry (Further Amendment) Act 1997
s. 7
s. 8Act No. 91/1997
of the licence and which is expressed to
be a new areas licence.
6C. Supply point
(1) In this Act, "supply point", in relation to
the supply of gas to a customer means—
(a) unless paragraph (b) applies, the point where the gas leaves the gas company's system before being supplied to the customer, whether or not it passes through facilities owned or operated by another person after that point and before being so supplied; (b) in relation to a supply of gas to which an arrangement referred to in sub- section (2) applies, the points of supply that ORG agrees are to be treated as a single supply point. (2) ORG may agree that, for the purposes of this
section, 2 or more points referred to in
paragraph (a) on a customer's premises be
treated as a single supply point if ORG is
satisfied that the supply of gas to those
points before 1 July 1997 was, in accordance
with an arrangement with the customer in
force immediately before that date, treated
by GASCOR as a single supply for billing
purposes.
(3) In this Act, "ancillary supply point", in relation to another supply point, means a point that, under sub-section (2), is to be treated as a single supply point with the other supply point.'.
8. New section 6D inserted
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997
Before section 7 of the Principal Act insert—
"6D. Conferral of functions on ACCC
(1) The ACCC has the functions and powers
conferred or expressed to be conferred on it under this Act, an Order under section 48A, the Access Code or the MSO Rules.
(2) In addition to the powers mentioned in sub-
section (1), the ACCC has power to do all
things necessary or convenient to be done in
connection with the performance of the
functions and powers referred to in that sub-
section.".
9. New sections 8A and 8B inserted
After section 8 of the Principal Act insert— "8A. Application of Office of the Regulator-
General Act 1994
For the purposes of the Office of the
Regulator-General Act 1994—
(a)
Parts 4A and 4B are relevant legislation; and
(b) the gas industry is a regulated industry.
8B. Objectives of ORG
The objectives of ORG under Parts 4A and
4B are—
(a) to facilitate and promote open, efficient and competitive markets for and in relation to gas and to safeguard against misuse of monopoly power; (b) to administer an Access Code providing a right of access to services provided by means of distribution pipelines on fair and reasonable terms and conditions;
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 10
(c)
to protect the interests of consumers with respect to gas prices and the reliability and quality of gas supply;
(d)
to facilitate the maintenance of a financially viable gas supply industry.".
10. Statutory gas companies
In the heading to Part 2 of the Principal Act, before "GAS" insert "STATUTORY".
11. New Division 2A inserted in Part 2
After section 16 of the Principal Act insert—
"Division 2A—Victorian Energy Networks
Corporation
16A. Establishment
(1) There is established a body by the name
Victorian Energy Networks Corporation.
(2) VENCorp—
(a)
is a body corporate with perpetual succession;
(b) has an official seal;
(c) may sue and be sued;
(d) may acquire, hold and dispose of real and personal property; (e) may do and suffer all acts and things that a body corporate may by law do and suffer. (3) All courts must take judicial notice of the
seal of VENCorp affixed to a document and,
until the contrary is proved, must presume
that it was duly affixed.
(4) The official seal of VENCorp must be kept in such custody as VENCorp directs and
Gas Industry (Further Amendment) Act 1997
| s. 11 | Act No. 91/1997 |
must not be used except as authorised by
VENCorp.
16B. VENCorp not to represent the Crown
VENCorp is a public authority but does not represent the Crown.
16C. Functions and powers relating to gas
industry
(1) The functions of VENCorp in relation to the gas industry 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
pipelines and gas distribution andto co-ordinate the interaction of gas ensuring a secure and efficient gas transmission system;
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 11
(h) facilitate trading arrangements for the
to operate and administer a market and system.
(2) VENCorp may trade in gas—
(a)
for the purpose of discharging its functions relating to the security or administration of the gas transmission system, to the extent it is permitted to do so under the MSO Rules; or
(b) in an emergency.
16D. General powers
(1) Without limiting the generality of the powers
conferred on it under this Act or any other
Act, VENCorp—
(a) may form, or participate in the formation of, or be a member of, companies; (b) formation of, and may participate in
partnerships, trusts, unincorporatedmay form, or participate in the for the sharing of profits;
(c) may act as trustee;
(d) may engage in any business, performance of its functions;
(e)
may do all things necessary or convenient to be done for, or in connection with, carrying out its functions under this Act or any other Act.
Gas Industry (Further Amendment) Act 1997
| s. 11 | Act No. 91/1997 |
(2) VENCorp may carry out its functions and
exercise its powers within or outside
Victoria and outside Australia.
16E. Board of Directors
(1) There shall be a board of directors of
VENCorp consisting of a chairperson and not more than 9 other directors appointed in accordance with this Act.
(2) The board of directors of VENCorp—
(a)
is responsible for the management of the affairs of VENCorp; and
(b) may exercise the powers of VENCorp.
16F. Directors
(1) The directors shall be persons with expertise
relevant to the functions of VENCorp
nominated by the Minister.
(2) At least 3 of the directors shall be persons—
(a) who are not officers or employees of a gas company, a gas producer or a gas storage provider; and (b) none of whom has a material personal interest within the meaning of section 232A of the Corporations Law in a gas company.
16G. Appointment of directors
(1) The chairperson and other directors of
VENCorp shall be appointed by the
Governor in Council.
(2) The Public Sector Management Act 1992 does not apply to a director of VENCorp in respect of the office of director.
16H. VENCorp may give directions
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 11 (1) VENCorp may give directions in writing as to a matter referred to in sub-section (2) to a market participant for the purposes of any
one or more of the following—
(a) facilitating the reliability of the supply of gas; (b) facilitating the security of the gas system;
(c) subject to consistency with the Gas Safety Act 1997, the interests of public safety.
(2) The matters as to which a direction may be given under sub-section (1) are—
(a)
the operation or use of any equipment or installation;
(b) the control of the flow of gas;
(c) any other matter necessary to be done, or not to be done, for the security of the gas transmission system or the gas distribution system.
(3) A direction under this section that is inconsistent with—
(a)
the Gas Safety Act 1997 or regulations under that Act; or
(b)
the Pipelines Act 1967, or with the conditions of a licence under that Act held by the person to whom the direction is given—
Gas Industry (Further Amendment) Act 1997
| s. 11 | Act No. 91/1997 |
is void to the extent of the inconsistency.
(4) A direction given under this section to a
market participant applies to the marketparticipant and may also be expressed to
apply to a specified class of persons, being a
class constituted by or included in one orboth of the following classes of persons—
(a) servants or agents of or persons acting on behalf of, the market participant; (b) persons performing work or services, whether directly or indirectly, for the market participant— and, if a direction so expressed is given, the direction is deemed to apply to each person included in that specified class.
(5) If a direction under this section applies to a
market participant and to a person referred to
in sub-section (4) the market participant
must cause a copy of the direction to be
given to that other person.
Penalty: 10 penalty units.
(6) A direction under this section may make
provision in relation to a matter by applying,
adopting or incorporating, with or without
modifications, a code of practice or standard
contained in an instrument (including an
instrument issued or made outside Australia),
as in force or existing at the time when the
direction takes effect or as in force or
existing from time to time, being a code of
practice or standard that is relevant to that
matter.
(7) A direction under this section may prohibit
the doing of an act or thing either
unconditionally or subject to conditions.
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 11 (8) A direction under this section has effect and shall be complied with despite any previous direction under this section.
(9) A person must comply with a direction in
force under sub-section (1) that applies to the
person.
Penalty: 100 penalty units.
(10) If—
(a) a direction given under this section applies to a market participant and another person and that other person is prosecuted for an offence against sub- section (9) in relation to the direction; and
(b)
the person adduces evidence that the person did not know, and could not reasonably be expected to have known, of the existence of the direction—
the person shall not be convicted of the
offence unless the prosecutor proves that the
person knew, or could reasonably be
expected to have known, of the existence ofthe direction.
16I. Protection from liability
(1) A director of VENCorp is not personally liable for anything done or omitted to be done in good faith—
(a) in the exercise of a power under section 16H; or (b) in the reasonable belief that the act or omission was in the exercise of such a power. (2) Any liability resulting from an act or omission that, but for sub-section (1), would
Gas Industry (Further Amendment) Act 1997
| s. 11 | Act No. 91/1997 |
attach to a director attaches instead to
VENCorp.
16J. Immunity from suit
A person acting in good faith in the execution of any direction under this Division is not liable to any action, claim or demand on account of any damage, loss or injury sustained or alleged to be sustained because of any thing done under the direction.
16K. Continuing offences
(1) If an offence is committed by a person by
reason of a failure to comply, within the period specified in a direction given in a direction under section 16H, with the
requirements specified in the direction, the
offence, for the purposes of sub-section (2) is
deemed to continue so long as any
requirement specified in the direction
remains undone, whether or not the period
has elapsed.(2) If, under sub-section (1), an offence is
deemed to continue, the person who
committed the offence commits an additional
offence on each day during which the
offence is deemed to continue and is liable,
upon conviction for such an additional
offence, to a fine not exceeding 10 penalty
units.
16L. Review of this Part
(1) The Minister must cause a review of this Part
to be undertaken in 2007 by the ACCC or another person nominated by the Minister.
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 12 (2) The person undertaking the review must
report in writing to the Minister on the outcome of the review on or before 31 December 2007.
(3) The matters to be addressed in the review are whether or not there is a continuing need for VENCorp, or a similar statutory authority,
with particular regard to—
(a) the competitiveness of markets for and in relation to gas; and (b) such other matters as the Minister determines.". 12. Directors of VENCorp not to have interest in electricity licensee
After section 16F(2)(b) of the Principal Act insert—
" ; and
(c)
none of whom has a material personal interest (within the meaning of section 232A of the Corporations Law) in a person that holds a licence under section 162 of the Electricity Industry Act 1993.".
13. Heading to Division 3
In the heading to Division 3 of Part 2 of the
Principal Act, before "gas" insert "statutory".
14. New section 17 substituted
For section 17 of the Principal Act substitute—
"17. Schedule 1
(1) Schedule 1 applies to GTC, unless anAdministrator of GTC has been appointed under this Division.
Gas Industry (Further Amendment) Act 1997
| s. 15 | Act No. 91/1997 |
(2) Schedule 1 applies to GASCOR, unless an
Administrator of GASCOR has been
appointed under this Division.
(3) Schedule 1, except clauses 2, 3 and 4, applies to VENCorp.
(4) Clause 11 of Schedule 1 does not apply in
relation to a director of VENCorp in respect
of a matter relating to the business of another
gas company or of a gas producer or gas
storage provider by reason only that the
director is an officer or employee of, or
holds shares in, that other gas company or
the gas producer or gas storage provider.".
15. New Part 3 substituted
For Part 3 of the Principal Act substitute—
"PART 3—TRANSMISSION AND
DISTRIBUTION OF GAS
32. Gas retailer not liable for failure to supply gas
(1) Despite anything to the contrary in this or
any other Act or in any contract, a gas
retailer is not liable to any penalty or
damages for failing to supply gas if the
failure arises out of any accident or cause
beyond the control of the gas retailer.
(2) A gas retailer may enter into an agreement
with a person varying or excluding the operation of sub-section (1) and, to the extent of that agreement, that sub-section
does not apply.(3) Nothing in sub-section (1) or (2) affects the
liability of a gas company under the Gas
Safety Act 1997.
Gas Industry (Further Amendment) Act 1997
s. 15
s. 16
Act No. 91/1997
33. Exemption from liability to transmit or convey gas
(1) Despite anything to the contrary in this or any other Act or in any contract—
(a) a gas transmission company is not liable to any penalty or damages for failing to accept gas for injection into, or make gas available for withdrawal from, transmission pipelines if the failure arises out of any accident or cause beyond the control of the gas transmission company; (b) a gas distribution company is not liable to any penalty or damages for failing to convey gas through distribution pipelines if the failure arises out of any accident or cause beyond the control of the gas distribution company.
(2) A gas transmission company or a gas
distribution company may enter into an
agreement with a person varying or
excluding the operation of sub-section (1)
and, to the extent of that agreement, that sub-
section does not apply.
(3) Nothing in sub-section (1) or (2) affects the
liability of a gas company under the Gas
Safety Act 1997.".
16. Amendment of Part 4
Sections 47 and 48 of the Principal Act are repealed.
17. New Parts 4A and 4B inserted
After Part 4 of the Principal Act insert—
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997
'PART 4A—REGULATION OF GAS INDUSTRY
Division 1—Regulation of tariffs and charges 48A. Tariffs and charges Orders
(1) The Governor in Council may, by Order
published in the Government Gazette,
regulate, in such manner as the Governor in
Council thinks fit—
(a) tariffs for the sale of gas to customers, other than non-franchise customers; (b) charges for connection to, and the use of, any distribution pipeline; (c) charges for connection to, and the use of, any transmission pipeline; (d) such other prices or charges in respect of goods and services provided by a gas company as may be declared in accordance with sub-section (2) to be goods and services to which the Order applies. (2) The Order may declare goods and services to
be goods and services to which the Order
applies.
(3) Without limiting the generality of sub-
section (1), the manner may include—
(a)
fixing the price or the rate of increase or decrease in the price;
(b)
fixing a maximum price or maximum rate of increase or minimum rate of decrease in the maximum price;
(c)
fixing an average price for specified goods or services or an average rate of
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17 increase or decrease in the average
price;
(d) specifying an amount determined by reference to a general price index, the cost of production, a rate of return on assets employed or any other specified factor; (e) specifying an amount determined by or other specified factor relevant to the rate or supply of the goods or services;
(f) fixing a maximum revenue or rate of decrease in the maximum revenue in relation to specified goods or services.
(4) The Order may confer functions and powers
on the ACCC or ORG relating to the
regulation of tariffs and charges under the
Order.
(5) If the provisions of an Order relating to
inconsistent with charges specified in an
access arrangement approved under thecharges under sub-section (1)(b) or (c) are the extent of the inconsistency.
(6) Sections 35 and 36 of the Office of the
Regulator-General Act 1994 apply to an determination made by ORG under that Act.
Division 2—Licensing of gas distribution companies and gas retailers
48B. Offence to distribute or retail gas without
licence
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| s. 17 | Act No. 91/1997 |
(1) A person must not provide services (other
than the sale of gas by retail) by means of a
distribution pipeline, either as principal or
agent, unless the person—
(a)
is the holder of a licence 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.
Penalty: 1000 penalty units and 100
penalty units for each day after the
day on which a notice of
contravention of this sub-section
is served on the person by ORG.(2) A person must not engage in the sale of gas by retail, either as principal or agent, unless the person—
(a)
is the holder of a licence authorising the sale of gas by retail; or
(b)
is exempt from the requirement to obtain a licence in respect of the sale of gas by retail because of an Order under section 48C.
Penalty: 1000 penalty units and 100
penalty units for each day after the
day on which a notice of
contravention of this sub-section
is served on the person by ORG.48C. Exemptions
(1) The Governor in Council may, by Order
published in the Government Gazette,
exempt a person from the requirement to
obtain a licence in respect of the activity
specified in the Order.
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17 (2) An exemption may be of general or specific
application.
(3) An exemption is subject to such terms and conditions as are specified in the Order.
48D. Application for licence
(1) A body corporate may apply to ORG for the issue of a licence—
(a) authorising the person to provide pipeline; or
(b) authorising the person to sell gas by retail. (2) An application must be in a form approved
by ORG and accompanied by such
documents as may be determined by ORG.
(3) An application must be accompanied by the application fee (if any) fixed by ORG.
48E. Determination of application
(1) Subject to sub-section (2), ORG may grant
or refuse an application for the issue of a
licence for any reason it considers
appropriate, having regard to the objectives
specified in section 8B.
(2) If ORG has issued a licence authorising a gas
retailer to sell gas to customers, other than
non-franchise customers, ORG must not
issue a licence to another applicant
authorising the sale of gas to those customers
unless the Minister and the other licensed
gas retailer have consented to the issue of the
licence.
(3) ORG must publish a notice in a daily
newspaper generally circulating in
Victoria—
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| s. 17 | Act No. 91/1997 |
(a)
specifying that an application for a licence has been lodged with ORG by the person specified in the notice; and
(b)
inviting interested persons to make submissions to ORG in respect of the application within the period and in the manner specified in the notice.
(4) Subject to this section and any requirements
purposes of this section under section 102,
specified in regulations made for the to apply in respect of the issue of licences. (5) ORG must notify an applicant in writing of
its decision to grant or refuse to grant the
application and, in the case of a decision to
refuse to grant the application, of the reasons
for its decision.
48F. Provisions relating to licences
(1) A licence is to be issued for such term (if
any) as is determined by ORG and is
specified in the licence.
(2) A licence is subject—
(a)
in the case of a licence to provide services by means of a distribution pipeline, to a condition that the holder comply with the Access Code, to the extent that it applies to the licensee;
(b)
in the case of a licence issued to a market participant, to a condition that the holder comply with the MSO Rules, to the extent that they apply to the licensee;
(c)
in the case of any licence, to such other conditions as are determined by ORG.
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17 (3) If a licence is issued to 2 or more persons for
the purpose of the carrying on by those
persons of activities under the licence in
partnership or as an unincorporated joint
venture, the licence may include conditions
relating to the carrying on of those activities
in that manner.
(4) Without limiting the generality of sub-
section (2) or (3), the conditions may include
provisions—
(a) requiring the licensee to pay specified fees and charges in respect of the licence to ORG; (b) requiring the licensee to enter into agreements on specified terms or on terms of a specified type; (c) specified industry codes and specified
requiring the licensee to observe or exemptions as may be determined by ORG;
(d) specified accounting records and to
requiring the licensee to maintain principles;
(e) specifying requirements about the used in or in connection with the carrying on of activities under the licence;
(f) preventing the licensee from engaging activities;
(g)
restricting the classes of customers to whom the licensee may sell gas or
Gas Industry (Further Amendment) Act 1997
| s. 17 | Act No. 91/1997 |
| provide services under the licence, as the case requires; |
(h) specifying methods or principles to be applied by the licensee in determining prices or charges; (i) specifying methods or principles to be applied in the conduct of gas retailing or the provision of services under the licence, as the case requires;
(j) specifying procedures for variation or revocation of the licence; (k) specifying procedures for variation of the conditions by the Treasurer; (l) specifying the procedures to apply if an section 48L;
(m) requiring the licensee to provide, in the manner and form determined by ORG, such information as ORG may from time to time require;
(n) and comply with customer-related
standards, procedures, policies and
practices (including with respect to therequiring the licensee to develop, issue customers).
(5) For the purposes of sub-section (4)(a), the
a licence are to be determined by the
fees and charges to be specified in respect of the total costs of ORG that are incurred in the administration of this Part. (6) If a licence is subject to conditions of a kind referred to in sub-section (4)(c), ORG—
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17
(a) may, in accordance with procedures specified by ORG, amend the specified industry codes or specified rules, or a document referred to in such a code or rule, for the purposes of their application under the licence; (b) may resolve, or seek to resolve, disputes between the licensee and any other person relating to the specified industry codes or specified rules, or a document referred to in such a code or rule, as they apply under the licence. (7) If ORG amends an industry code or the rules
or a document referred to in a code or the
rules under sub-section (6), ORG may at the
same time, in accordance with procedures
specified by ORG, amend that code or those
rules or that document for the purposes of
their application otherwise than under the
licence.
48G. Conditions in licence
(1) Without limiting the generality of section
48F, the conditions to which a licence to sell
gas by retail is subject may include a
requirement that, in certain circumstances,
the licensee, on terms and conditions
approved by ORG, sell gas to non-franchise
customers to whom gas is sold under another
licence (whether held by that licensee or
another licensee).
(2) In approving the terms and conditions of a requirement referred to in sub-section (1), ORG must have regard to the risks and costs
associated with the requirement.
(3) A requirement referred to in sub-section (1) does not apply so as to require the licensee to
Gas Industry (Further Amendment) Act 1997
| s. 17 | Act No. 91/1997 |
sell gas to a non-franchise customer to whom
gas is sold under another licence if the non-
franchise customer elects, in writing given to
the holder of that other licence, not to be a
non-franchise customer for the purposes of
sub-section (1).(4) If the conditions to which a licence of a licensee is subject include a requirement referred to in sub-section (1), the licensee is
deemed to be authorised to sell gas to the
extent necessary to comply with the
requirement.(5) The obligation of the holder of a licence
("the second licence") to sell gas by retail to
a non-franchise customer to whom gas is
sold under another licence ("the first
licence") in accordance with the requirement
referred to in sub-section (1) commences
when—
(a)
the first licence is suspended or revoked; or
(b)
the right of the holder of the first licence to acquire gas under the MSO Rules is suspended or terminated—
whichever first occurs, and ends after 3
months or when the non-franchise customer
advises the holder of the second licence in
writing that the sale is no longer required,
whichever first occurs.(6) A gas retailer to which a condition referred to in sub-section (1) applies must declare, if the condition so requires or, in any other
case, may declare, from time to time, subject to that condition and any other conditions of its licence and with the approval of ORG, by notice published in the Government Gazette,
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17 the terms and conditions upon which the gas
retailer will sell gas by retail to non-
franchise customers to whom gas is sold
under another licence in circumstances to
which sub-section (5) applies.(7) The terms and conditions of which notice
has been given by a gas retailer in
accordance with sub-section (6) are binding
on the gas retailer and the non-franchise
customers to whom they apply and, when the
gas retailer is acting in accordance with the
condition referred to in sub-section (1), the
terms and conditions have effect despite any
agreement or instrument (other than this Act
or any Order made under section 48A) to the
contrary relating to the sale of gas by retail
to those customers.
(8) A gas retailer and a non-franchise customer
to whom the gas retailer has an obligation
under sub-section (5) to sell gas by retail are
deemed to have entered into a contract on the
terms and conditions published under sub-
section (6).
48H. Variation or revocation of licence
(1) A licence or the licence conditions may be
varied—
(a) in accordance with the procedures specified in the licence conditions; or (b) by agreement between ORG and the licensee; or (c) by a notice in accordance with sub- section (2) served on the licensee. (2) ORG must not vary a licence or the licence conditions by a notice unless—
Gas Industry (Further Amendment) Act 1997
| s. 17 | Act No. 91/1997 |
(a) ORG is satisfied that the variation is necessary having regard to the objectives specified in section 8B; and (b) ORG has given the licensee an the matter.
(3) ORG may revoke a licence in accordance
with the procedures specified in the licence
conditions.
48I. Gazettal requirement
ORG must ensure that—
(a) notice of the grant of a licence including— (i) the name of the licensee;
(ii) the term of the licence;
(iii) the place where a copy of the licence may be inspected; (b) notice of a variation or revocation under section 48H— is published in the Government Gazette as soon as possible after the grant of a licence or the variation or revocation, as the case
requires.
48J. Appointment of administrator
(1) This section applies if ORG considers that—
(a)
the contravention by a licensee of the licence conditions threatens the security of the gas supply;
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17
(b) any other remedies to enforce compliance are not adequate. (2) ORG may appoint an administrator to the business in respect of which the licence is issued.
(3) The administrator has such functions and
powers in relation to the business in respect
of which the licence is issued as are specified
in the appointment of the administrator.
(4) Unless sooner revoked by ORG, the
appointment of an administrator has effect for a period of 28 days but the appointment may be renewed for a further period or
periods, each period not exceeding 28 days. (5) The terms and conditions (including remuneration) of appointment of the administrator are to be determined by ORG.
48K. Transfer of licence
(1) The holder of a licence may apply to ORG for approval to transfer the licence.
(2) An application must be in a form approved
by ORG and accompanied by such
documents as may be determined by ORG.
(3) An application must be accompanied by the application fee (if any) fixed by ORG.
(4) ORG must publish in a daily newspaper generally circulating in Victoria a notice—
(a)
specifying that an application for the transfer of the licence has been lodged with ORG for the transfer by the holder to a proposed transferee specified in the notice; and
(b)
inviting interested persons to make submissions to ORG in respect of the
Gas Industry (Further Amendment) Act 1997
| s. 17 | Act No. 91/1997 |
| application within the period and in the manner specified in the notice. |
(5) Subject to this section, ORG may approve,
or refuse to approve, the application for any
reason it considers appropriate, having
regard to the objectives specified in section
8B.
(6) ORG may determine that, upon the transfer
of the licence under this section, the
conditions to which the licence is subject are
varied as determined by ORG.
(7) Subject to this section and any requirements
purposes of this section under section 102,
specified in regulations made for the to apply in respect of the transfer of a licence. (8) ORG must notify an applicant in writing of its decision to approve or refuse to approve the application and, in the case of a decision to refuse to approve the application, of the
reasons for its decision.
(9) ORG must ensure that notice of the approval
for the transfer of a licence is published in
the Government Gazette as soon as possible
after the decision to approve the transfer is
made.
48L. Transitional provisions
(1) The Treasurer may give directions to ORG
as to the terms and conditions to be included in the licences under this Part that are issued on the commencement of section 17 of the
Gas Industry (Further Amendment) Act
1997.
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17 (2) ORG may dispense with such requirements of this Part as ORG considers appropriate in respect of the issue of the initial licences
under this Part.
48M. Obligations of gas retailer
(1) A gas retailer may from time to time, subject
to the conditions of its licence and to terms and conditions upon which the gas retailer sells gas to customers, other than non-franchise customers. (2) A gas retailer may, subject to the conditions of its licence and to Division 1, give notice of different tariffs and terms and conditions in respect of any class of customers.
(3) The tariffs and terms and conditions of
which notice has been given by a gas retailer have effect from the day of the publication of the notice in the Government Gazette and are binding on the gas retailer and the customers (being non-franchise customers) to whom
they apply.(4) A gas retailer is deemed to have entered into a contract with a customer, other than a non- franchise customer, on the tariffs and terms
and conditions published under sub-section
(3).(5) Despite anything to the contrary in this
section, a gas retailer may enter into a
contract with any customer for the sale of
gas at such rate and on such terms and
conditions as may be specified in the
contract.
(6) A gas retailer must not disconnect the domestic supply of gas to any premises for
Gas Industry (Further Amendment) Act 1997
| s. 17 | Act No. 91/1997 |
failure by the customer to pay an account for that supply if the failure occurs through lack of sufficient income of the customer and of
any other person normally resident on the
premises supplied until—
(a)
the gas retailer has offered to advise the customer about—
(i) optional methods of arranging
payment of the account; and(ii) customer to pay the account which
other ways of assisting the government agencies; and
(b) the customer—
(i) refuses or fails to accept that offer of advice within a time specified by the gas retailer in each case (being not less than 7 days); or
(ii) accepts the offer of advice, but refuses or fails to take any reasonable action to pay the account within a time specified by the gas retailer in each case (being not less than 7 days).
Division 3—Market and System Operation
Rules
48N. MSO Rules
(1) The Governor in Council, on the
recommendation of the Minister, by Order published in the Government Gazette, may make rules for the regulation of—
(a) the operation of a market for gas;
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17
(b)
the activities of market participants in a market for gas;
(c)
the operation of the gas transmission system for the purposes of—
(i) the security of the system;
(ii) the achievement of the market section (2).
(2) The market objectives are to establish a
competitive, reliable and efficient market for
gas—
(a) in which market participants can choose with whom they trade; (b) in which third parties are granted accordance with this Act and orders made under it;
(c) in which, to the extent practicable, the trading of gas from different sources is not differentiated; (d) in which prices are governed as far as practicable by commercial and market forces rather than regulation; (e) in which efficiency is encouraged. (3) The rules made under this section may
confer functions and powers on the ACCC. (4) Rules made under this section, including
rules modified in accordance with this sub- section, may be modified by the VENCorp, after consultation in accordance with the
rules, by notice published in the GovernmentGazette.
48O. Proceedings
Gas Industry (Further Amendment) Act 1997
| s. 17 | Act No. 91/1997 |
(1) A person may not bring civil proceedings in
respect of a matter arising under this
Division, except in accordance with this
Division.
(2) The ACCC may, in accordance with this
Division, bring civil proceedings in respect of a civil penalty provision or a regulatory provision.
(3) The ACCC or any other person may, in
accordance with this Division, bring civil
proceedings in respect of a conduct
provision.
(4) Nothing in this section affects the right of a person to bring civil proceedings in respect of any matter or thing, or seek any relief or remedy, if the cause of action arises, or the relief or remedy is sought, on grounds that do not rely on this Division.
48P. Criminal proceedings do not lie
(1) Criminal proceedings do not lie against a person by reason only that the person—
(a) has contravened a provision of this Division; (b) has attempted to contravene such a provision; (c) has aided, abetted, counselled or procured a person to contravene such a provision; (d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a
provision;
(e) has been in any way, directly or indirectly, knowingly concerned in, or
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17 party to, the contravention by a person
of such a provision; or(f) has conspired with others to contravene such a provision.
(2) Sub-section (1) does not apply in respect of a
provision of this Division for an offence
against which a penalty is prescribed by this
Division.
48Q. Civil penalty
(1) The ACCC may apply to a court for an order
under this Division in respect of a
contravention by a person of a civil penalty
provision or the doing by a person of any
other thing mentioned in sub-section (2).
(2) If the court is satisfied that a person—
(a) has contravened a civil penalty provision; or (b) has attempted to contravene such provision; or (c) has aided, abetted, counselled or procured a person to contravene such a provision; or (d) has induced, or attempted to induce, a person whether by threats or promises or otherwise, to contravene such a provision; or
(e)
has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
(f)
has conspired with others to contravene such a provision—
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| s. 17 | Act No. 91/1997 |
the court may order the person to pay to the Fund such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the court determines to be appropriate having regard to all relevant matters including—
(g) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and (h) the circumstances in which the act or omission took place; and (i) whether the person has previously been found by a court in proceedings under this Division to have contravened a civil penalty provision.
(3) The pecuniary penalty payable under sub-
section (2) must not exceed the penalty
prescribed by the Regulations for the act or
omission to which this section applies.
48R. Injunctions
(1) If, on an application in accordance with sub-
section (2), the Supreme Court is satisfied
that a person has engaged, or is proposing to
engage, in conduct that constitutes or would
constitute—
(a)
a contravention of a provision that, under the MSO Rules, is a regulatory provision or conduct provision of the MSO Rules; or
(b)
attempting to contravene such a regulatory provision or conduct provision—
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17 the Court may grant an injunction in such
terms as the Court determines to beappropriate.
(2) An application under sub-section (1) may be
made—
(a)
in the case of a regulatory provision, by the ACCC;
(b)
in the case of a conduct provision, by the ACCC or any other person.
(3) 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 or is proposing to engage, in conduct of a kind mentioned in sub-section (1). (4) 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).
(5) The Court may rescind or vary an injunction granted under sub-section (1) or (3).
(6) The power of the Court to grant an
injunction restraining a person from
engaging in conduct may be exercised—
(a)
whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b)
whether or not the person has previously engaged in conduct of that kind; and
Gas Industry (Further Amendment) Act 1997
| s. 17 | Act No. 91/1997 |
(c) whether or not there is an imminent danger of substantial damage to any other person or to property if the person engages in conduct of that kind.
(7) The power of the Court to grant an
injunction requiring a person to do an act or
thing may be exercised—
(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; (b) whether or not the person has previously refused or failed to do that act or thing; and (c) whether or not there is an imminent danger of substantial damage to any other person or to property if the person refuses or fails to do that act or thing.
(8) If the ACCC makes an application to the Court for the grant of an injunction under this section, the 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.
48S. Actions for damages for contravention of conduct provision
(1) A person who suffers loss or damage by
contravention of a conduct provision may,
subject to and in accordance with the MSOconduct of another that was done in damage by action against that other person or against any person involved in the contravention.
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17 (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 a conduct provision is a reference to a person who—
(a) has aided, abetted, counselled or procured the contravention; (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.
48T. 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 a regulatory provision or
conduct provision.
(2) An application under sub-section (1) may be made, subject to and in accordance with the MSO Rules—
(a) in the case of a regulatory provision, by the ACCC; (b) in the case of a conduct provision, by the ACCC or any other person. (3) If the order declares the person to have
contravened a regulatory provision or
conduct provision, the order may include one
or more of the following—
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(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;
(c) a requirement that the person compliance with the MSO Rules.
PART 4B—THIRD PARTY ACCESS
Division 1—The Access Code
48U. Establishing the Access Code
(1) The Governor in Council, on the
recommendation of the Minister, by Order published in the Government Gazette, may establish an Access Code with respect to
third party access to transmission pipelines
and distribution pipelines for natural gas.(2) The Access Code established under sub-
section (1) may make provision for or with
respect to—
(a) requiring persons who own or operate transmission pipelines or distribution pipelines— (i) to satisfy specified requirements as to the carrying on of business as an owner or operator of
pipelines;
(ii) to provide terms and conditions on which third party access
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17 arrangements are offered in
respect of transmission pipelines
or distribution pipelines;
(iii) to provide information about access arrangements;
(b) specifying procedures with respect to
the resolution of disputes between
persons who own or operate
transmission pipelines or distribution
pipelines and persons seeking access to
them;
(c) making provision for any other matter or thing required or permitted to be provided for in the Order or necessary to be provided for to give effect to this Part. (3) An access arrangement that concerns a transmission pipeline or a distribution pipeline situated partly in Victoria and partly
in another State or in a Territory may be
expressed to apply to any part of the pipeline
situated in that other State or Territory.(4) An access arrangement under a law of
another State or a Territory, being an
arrangement—
(a)
that is recognised by the Regulations as being the equivalent of an access arrangement made in accordance with the Access Code; and
(b)
that concerns a transmission pipeline or a distribution pipeline situated partly in Victoria and partly in some other State or in a Territory; and
(c)
that is expressed to apply to a part of the pipeline situated in Victoria—
Gas Industry (Further Amendment) Act 1997
| s. 17 | Act No. 91/1997 |
has effect in relation to the part of the
pipeline situated in Victoria as if it were an
access arrangement made in accordance withthe Access Code.
(5) A determination of an arbitrator under
Division 2 that concerns a transmission pipeline or a distribution pipeline situated partly in Victoria and partly in some other State or in a Territory may, if the parties to the dispute agree, be expressed to apply to any part of the pipeline situated in the other State or Territory.
(6) A determination under a law of another State or of a Territory, being a determination—
(a)
that is recognised by the Regulations as being the equivalent of a determination of an arbitrator under Division 2; and
(b)
that concerns a transmission pipeline or a distribution pipeline situated partly in Victoria and partly in some other State or in a Territory; and
(c)
that, with the agreement of the parties, is expressed to apply to a part of the pipeline situated in Victoria—
has effect in relation to the part of the
pipeline situated in Victoria as if it were a
determination of an arbitrator underDivision 2.
(7) The Access Code may be made—
(a) so as to apply—
(i) at all times or at a specified time;
or
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17 (ii) throughout the whole of the
State or in a specified part of the
State;(b) so as to require a matter affected by the Access Code to be—
(i) in accordance with a specified or
(ii) approved by or to the satisfaction of a specified person or person of a specified class;
(c) so as to incorporate, adopt or apply,
wholly or partially or as amended by an
Order under sub-section (1), the
provisions of any document, standard,
rule, specification or method
formulated, issued, prescribed or
published by any authority or body
whether—
(i)
(ii) as amended from time to time;as formulated, issued, prescribed Access Code is established or at any time before the Access Code is established; or (d) so as to confer a discretionary authority
on a specified person or person of a
specified class;
(e) so as to provide, in a specified case or
class of cases for the exemption of
persons or things or a class of persons
or things from any of the provisions of
the Access Code, whether
unconditionally or on specified
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| s. 17 | Act No. 91/1997 |
| conditions and either wholly or to the extent specified. |
(8) The Access Code may confer functions or powers on the ACCC or ORG.
(9) The Access Code may provide for the
payment of fees prescribed by the services under the Access Code. (10) The functions and powers conferred on ORG
for the purposes of the access regime
established under this Division are not
exercisable by ORG to the extent that those
functions and powers are conferred on the
ACCC under this Part.
Division 2—Arbitration of access disputes 48V. Definitions and application
(1) In this Division—
"access dispute" means a dispute between a
service provider and another person that, in accordance with the Access Code, may be referred to arbitration under this Division;
"arbitrator" means the Regulator or a
person appointed by the Regulator to
conduct an arbitration relating to an
access dispute;
"party" means a service provider or other
person involved in an access dispute.
(2) This Division applies if—
(a)
in accordance with the Access Code, a service provider or another person notifies the Regulator that an access dispute exists; and
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17
(b) notification of the dispute is not Access Code.
48W. Where ACCC conducts arbitration
(1) For the purposes of a particular arbitration
where it is the arbitrator, the ACCC is to be
constituted by 2 or more members of the
ACCC nominated in writing by the
Chairperson.
(2) Subject to sub-section (3), the Chairperson
of the ACCC is to preside at an arbitration.(3) If the Chairperson is not a member of the
Commission as constituted under sub-section
(1) in relation to a particular arbitration, the
Chairperson must nominate a member of the
ACCC to preside at the arbitration.
(4) If a member of the ACCC who is one of the
members who constitute the ACCC for the
purposes of a particular arbitration—
(a) stops being a member of the ACCC; or
(b)
for any reason, is not available for the purpose of the arbitration—
the Chairperson must either—
(c) constituted for the purposes of finishing
direct that the ACCC is to be member or members; or
(d) constituted for that purpose by the
remaining member or membersdirect that the ACCC is to be members of the Commission.
(5) If a direction under sub-section (4) is given,
the ACCC as constituted in accordance with
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| s. 17 | Act No. 91/1997 |
the direction must continue and finish the
arbitration and may, for that purpose, have
regard to any record of the proceedings of
the arbitration made by the ACCC as
previously constituted.(6) If the ACCC is constituted for an arbitration
by 2 or more members of the ACCC, any
question before the ACCC is to be decided—
(a)
unless paragraph (b) applies, according to the opinion of the majority of those members; or
(b)
if the members are evenly divided on a question, according to the opinion of the member who is presiding.
48X. Person to conduct arbitration
The Regulator must conduct the arbitration or appoint a person to do so.
48Y. Hearing to be in private
(1) Subject to sub-section (2), an arbitration hearing is to be in private.
(2) If the parties agree, an arbitration hearing or
part of an arbitration hearing may be
conducted in public.
(3) The arbitrator may give written directions as
to the persons who may be present at an
arbitration hearing that is conducted in
private.
(4) In giving directions under sub-section (3),
the arbitrator must have regard to the wishes
of the parties and the need for commercial
confidentiality.
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 17
48Z. Right to representation
In an arbitration hearing under this Division, a party may appear in person or be represented by someone else.
48ZA. Procedure
(1) In an arbitration hearing under this Division, the arbitrator—
(a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act as speedily as a proper consideration of the dispute allows, having regard to the need carefully and quickly to inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute; and (c) may gather information about any any way the arbitrator thinks appropriate.
(2) Subject to the Access Code, the arbitrator
may determine the periods that are
reasonably necessary for the fair and
adequate presentation of the respective cases
of the parties in the arbitration hearing, and
may require that the cases be presented
within those periods.
(3) The arbitrator may require evidence or
argument to be presented in writing, and may
decide the matters on which the arbitrator
will hear oral evidence or argument.
(4) The arbitrator may determine that an arbitration hearing is to be conducted by—
(a) telephone; or
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(b) closed circuit television; or
(c) any other means of communication.
48ZB. Particular powers of arbitrator
The arbitrator may do any of the following things for the purpose of arbitrating an access dispute—
(a)
give a direction in the course of, or for the purposes of, an arbitration hearing;
(b)
hear and determine the arbitration in the absence of a party who has been given notice of the hearing;
(c) sit at any place;
(d) adjourn to any time and place;
(e)
refer any matter to an expert and accept the expert's report as evidence.
48ZC. Contempt
A person must not do any act or thing in relation to the arbitration of an access dispute that would be a contempt of court if the arbitrator were a court of record.
(b)
(4) A transferee must provide to GASCOR all
accounting records, documents and other
information necessary to enable GASCOR to
prepare reports and financial statements for
the relevant year in accordance with sub-
section (1).
(5) The Minister may, in writing given to
GASCOR and to each transferee, nominate a financial year later than the year commencing on 1 July 1997 for the purposes of this section.
(6) In this section—
"relevant year" means the year beginning
on 1 July 1997 or, if the Minister nominates a later year under sub- section (5), that later year;
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 38 "transferee" means a gas company to which
property, rights and liabilities of
GASCOR have been transferred under
Part 7.
104B. Annual reports of GTC transferees and
GTC
(1) Despite anything to the contrary in this Act,
a transferee must prepare reports and
financial statements for the relevant year as
if the operations of GTC—
(a) for the relevant year; and
(b) associated with the property, rights and liabilities of GTC that, as at 30 June in the relevant year, are property and rights vested in, or liabilities that have
become liabilities of the transferee
under this Act—had been operations of the transferee. (2) GTC and the transferees must provide to
each other all accounting records, documents sub-section (1).
and other information necessary to enable
the transferees to prepare reports and
financial statements for the year ending 30(3) Despite anything to the contrary in the
Financial Management Act 1994 or regulations under that Act, GTC may prepare its reports and financial statements for the relevant year as if the relevant date, for the purposes of Part 7, had been 1 July in the relevant year and as if the operations of a transferee—
(a) for the relevant year; and
Gas Industry (Further Amendment) Act 1997
| s. 39 | Act No. 91/1997 |
had not been operations of GTC. associated with the property, rights and 30 June in the relevant year, are property and rights vested in, or liabilities that have become liabilities of, the transferee under this Act— (b)
(4) A transferee must provide to GTC all
accounting records, documents and other information necessary to enable GTC to prepare reports and financial statements for
the relevant year in accordance with sub-
section (1).(5) The Minister may, in writing given to GTC and to each transferee, nominate a financial year later than the year commencing on
1 July 1997 for the purposes of this section.
(6) In this section—
"relevant year" means the year beginning
on 1 July 1997 or, if the Minister nominates a later year under sub- section (5), that later year;
"transferee" means a gas company to which
property, rights and liabilities of GTC
have been transferred under Part 7.'.
39. New section 104C inserted
Before section 105 of the Principal Act insert—
"104C. Repeal of Public Authorities
(Contributions) Act 1966
(1) The Public Authorities (Contributions) Act 1966 is repealed.
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997
(2) GASCOR is not liable to make any
contributions that were due and unpaid under the Public Authorities (Contributions) Act 1966 before its repeal by sub-section (1).".
40. New Parts 13A and 13B inserted
After Part 13 of the Principal Act insert—
'PART 13A—TRANSFER OF CERTAIN
PROPERTY AND STAFF OF NOMINATED PUBLIC GAS COMPANIES
Division 1—Definitions and applications
115A. Definitions
(1) In this Part—
"former PGC property" means property,
rights or liabilities of a PGC that, under
this Part, have vested in, or become
liabilities of another person;
"new employer", in relation to a transferred
PGC employee, means the person by which, by virtue of section 115O, the transferred PGC employee is regarded
as being employed with effect from the
relevant date;
"PGC" means a public gas company that is
nominated by the Minister under
section 115B;
"PGC instrument" means an instrument
(including a legislative instrument other
than this Act) subsisting immediately
before the relevant date in relation to a
PGC—
(a) to which the PGC was a party; or
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| s. 40 | Act No. 91/1997 |
(b)
that was given to or in favour of the PGC; or
(c) that refers to the PGC; or
(d) under which—(i) money is, or may become, payable to or by the PGC; or
(ii) other property is to be, or may become liable to be, transferred to or by the PGC;
"PGC transferee", in relation to former PGC property, means the person to which the property has been transferred
under this Part;
"relevant date"—
(a) statement or property, rights or
liabilities allocated under an
allocation statement, means thein relation to an allocation sub-section (2) for the purposes of that statement;
(b)
in relation to a document referred to in section 115N(1), means a date fixed by the Minister under sub-section (2) for the purposes of that document;
"transferred PGC employee" means a
person who, by virtue of section 115O, is regarded as being employed by a new employer with effect from the relevant
date;
"transferor company" means a public gas
company.
Gas Industry (Further Amendment) Act 1997
s. 40
s. 40
Act No. 91/1997
(2) The Minister may, by notice published in the Government Gazette—
(a)
fix a relevant date for the purposes of an allocation statement under section 115C;
(b)
fix a relevant date for the purposes of a document referred to in section 115N(1).
115B. Nomination of transferor company
If the Treasurer, on behalf of the State, enters into an agreement for the sale or transfer of property, rights and liabilities of a transferor company, the Treasurer may nominate the transferor company for the purpose of this Part.
Division 2—Allocation of property
115C. PGC to prepare allocation statement(1) The PGC must give to the Treasurer and the Minister, within the period of 3 months after the date on which the PGC is nominated
under section 115B or within such longer
period as the Treasurer and the Minister
approve, a statement or statements approved
by the Minister relating to the property,
rights and liabilities of the PGC as at a date
specified by the Minister for the purposes ofthe relevant statement.
(2) A statement under this section—
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| s. 40 | Act No. 91/1997 |
(a) must allocate the property, rights and liabilities of the PGC shown in the statement to, or between, the person or persons nominated in writing by the Minister; (b) must be signed by the chief executive officer of the PGC. (3) If a statement under this section is approved by the Treasurer and the Minister—
(a) the Treasurer and the Minister must sign the statement; and (b) the statement is an allocation statement for the purposes of this Part. (4) The Treasurer and the Minister may at any time direct the PGC to amend a statement given to them under this section as specified
in the direction.
(5) An allocation statement under this section may be amended by writing signed by the Treasurer and the Minister.
(6) A direction under sub-section (4) or an
affect a person or persons nominated by the
amendment under sub-section (5) that would given or made unless that person or those persons are, or are wholly owned by, the State or a statutory authority or have consented in writing to the direction or amendment. (7) In this section, "statement" and "allocation statement" include a statement or allocation statement amended in accordance with this
section.
115D. Certificate of chief executive officer
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997
(1) A certificate signed by the chief executive officer of the PGC certifying that property, rights or liabilities of the PGC specified in the certificate have been allocated under the
allocation statement to a person so specified
is, unless revoked under sub-section (2),conclusive evidence—
(a)
that the property, rights or liabilities have been so allocated; and
(b)
that the property, rights or liabilities vested in or became the property, rights or liabilities of the person on the relevant date.
(2) If the Treasurer and the Minister so direct
the chief executive officer of the PGC in writing, the chief executive officer of the PGC must revoke a certificate given under
sub-section (1) by issuing another certificate or certificates in place of the first certificate.
(3) The chief executive officer—
(a) must keep a register of certificates issued under this section; and (b) must make the register reasonably person.
Division 3—Transfer of property
115E. Property transferred
(1) On the relevant date—
(a)
all property and rights of the PGC, wherever located, that are allocated
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| s. 40 | Act No. 91/1997 |
| under an allocation statement relating to the PGC to a person, or any 2 or more persons, vest in that person or persons; and |
(b) all liabilities of the PGC, wherever located, that are allocated under an allocation statement relating to the PGC to a person, or to any 2 or more
persons, become liabilities of that
person or persons.(2) If, in an agreement for the sale by the PGC
of the business or assets of the PGC, a value
is ascribed to property, rights or liabilities
that are allocated to a PGC transferee under
an allocation statement, that value is deemed
to be consideration paid to, or received by,
the PGC.
115F. Allocation of property etc. subject to
encumbrances
Unless an allocation statement under this
Part otherwise provides, where, under thisPart—
(a) property and rights vest in; or
(b) liabilities become liabilities of—
a person or 2 or more persons—
(c)
the property and rights so vested are subject to the encumbrances (if any) to which they were subject immediately before so vesting; and
(d)
the rights to which the PGC was entitled in respect of those liabilities immediately before they ceased to be liabilities of the PGC vest in the person or persons.
Gas Industry (Further Amendment) Act 1997
s. 40
s. 40
Act No. 91/1997
115G. Substitution of party to agreement
If, under an allocation statement, the rights and liabilities of the PGC under an agreement are allocated to a person—
(a)
the person becomes, on the relevant date, a party to the agreement in place of the PGC; and
(b)
on and after the relevant date, the agreement has effect as if the person had always been a party to the agreement.
115H. PGC instruments
Each PGC instrument relating to former PGC property continues to have effect according to its tenor on and after the relevant date as if a reference in the instrument to the PGC were a reference to the PGC transferee.
115I. Proceedings
If, immediately before the relevant date, proceedings relating to former PGC property (including arbitration proceedings) to which the PGC was a party were pending or existing in any court or tribunal, then, on and after that date, the PGC transferee is substituted for the PGC as a party to the proceedings and has the same rights in the proceedings as the PGC had.
115J. Interests in land
Without prejudice to the generality of this Part and despite anything to the contrary in any other Act or law, if, immediately before the relevant date, the PGC is, in relation to former property, the registered proprietor of an interest in land under the Transfer of
Gas Industry (Further Amendment) Act 1997
| s. 40 | Act No. 91/1997 |
Land Act 1958, then on and after that date—
(a)
the PGC transferee is to be taken to be the registered proprietor of that interest in land; and
(b)
the PGC transferee has the same rights and remedies in respect of that interest as the PGC had.
115K. Amendment of Register
(1) The Registrar of Titles, on being requested to
certificate of title or instrument and
certificate of the chief executive officer of
the PGC, must make any amendments in thedo so and on delivery of any relevant operation of this Part.
(2) The Registrar-General must make all entries
on the records of enrolment of any Crown grant and on any memorial relating to land that are necessary because of the operation of this Part.
(3) If any land allocated under an allocation
and is not under the operation of the
statement under this Part is not Crown land transferee concerned must, as soon as practicable after the land vests in accordance with the allocation statement, cause a memorial of the certificate of the Administrator (that complies with Part I of the Property Law Act 1958) to be delivered to the office of the Registrar-General and, for the purposes of that Part, that certificate must be taken to be an instrument affecting land.
115L. Evidence
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997
(1) Documentary or other evidence that would
interests of the PGC in relation to former
have been admissible for or against the enacted, is admissible for or against the interests of the PGC transferee. (2) Division 3A of Part III of the Evidence Act 1958 continues to apply with respect to the books of account of the PGC and to entries made in those books of account before the relevant date, whether or not they relate to former PGC property.
(3) In sub-section (2), "books of account" has the same meaning as in Division 3A of Part III of the Evidence Act 1958.
115M. Validity of things done under this Part
(1) Nothing effected by this Part or done or
suffered under this Part or the cessation of
carrying on business by a PGC—
(a)
is to be regarded as placing the PGC, the State, a Minister or another person in breach of contract or confidence or as otherwise making any of them guilty of a civil wrong; or
(b)
is to be regarded as placing any of them in breach of or as constituting a default under any Act or other law or any
provision in any agreement,
arrangement or understanding
including, without limiting the
generality of the foregoing, any
provision prohibiting, restricting or
regulating the assignment or transfer of
any property or the disclosure of any
information; or
Gas Industry (Further Amendment) Act 1997
s. 40
| s. 40 | Act No. 91/1997 |
(c) is to be regarded as fulfilling any condition which allows a person to exercise a right or remedy in respect of or to terminate any agreement or obligation; or (d) is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting the termination of any contract or instrument because of a change in the
beneficial or legal ownership of any
asset, right or liability; or(e) is to be regarded as causing any contract or instrument to be void or otherwise unenforceable; or (f) is to be regarded as frustrating any contract; or (g) releases any surety or other obligee wholly or in part from any obligation. (2) The validity of any act or transaction of a PGC must not be called in question in any proceedings on the ground that any provision
of this Act had not been complied with.
Division 4—Staff
115N. List of PGC staff
(1) Before the relevant date in relation to a PGC,
the PGC must prepare and submit to the
Minister and Treasurer a document signed by
the chief executive officer listing officers
and employees of the PGC and specifying, in
respect of each such officer or employee, the
person by which he or she is to be regarded
as having been employed by virtue of section
115O with effect from the relevant date.
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 40
(2) The document may be amended by
officer and given to the Minister and
instrument signed by the chief executive regarded as having effect, or having had effect, from the relevant date. (3) Nothing in this section prevents a person
listed in the document as an officer or
employee of the PGC from resigning or
being dismissed at any time before the
relevant date in accordance with the terms
and conditions of his or her appointment or
employment.
115O. Transfer of PGC staff
(1) A person listed as an officer or employee of
a PGC in a document under section 115N
who was such an officer or employee
immediately before the relevant date in
relation to the PGC is to be regarded as—
(a)
having been employed by the new employer with effect from the relevant date; and
(b)
having been so employed on the same terms and conditions as those that applied to the person, immediately before the relevant date, as an officer or employee of the PGC; and
(c)
having accrued an entitlement to benefits, in connection with that employment by the new employer, that
is equivalent to the entitlement that the
person had accrued, as an officer or
employee of the PGC, immediately
before the relevant date.
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| s. 40 | Act No. 91/1997 |
(2) The service of a transferred PGC employee
as an employee of the new employer is to be
regarded for all purposes as having been
continuous with the service of the employee,
immediately before the relevant date, as an
officer or employee of the PGC.
(3) A transferred PGC employee is not entitled to receive any payment or other benefit by reason only of having ceased to be an officer
or employee of the PGC because of this Act. (4) A certificate purporting to be signed by the
Administrator certifying that a person named in the certificate was, with effect from the relevant date employed, by virtue of this section, by a person named in the certificate is admissible in evidence in any proceedings and is conclusive proof of the matters stated in it.
115P. Future terms and conditions of transferred
employees
Nothing in section 115O prevents—
(a) any of the terms and conditions of employment of a transferred PGC employee from being altered by or under any law, award or agreement with effect from any time after the relevant date; or (b) a transferred PGC employee from time after the relevant date in accordance with the then existing terms and conditions of his or her employment by the new employer.
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 40 Division 5—Permits and licences under
Pipelines Act 1967
115Q. Pipelines
(1) If former PGC property includes a pipeline
or part of a pipeline ("the transferred
pipeline") to which a permit or licence under
the Pipelines Act 1967 applies, on the
relevant date in relation to the relevant
allocation statement—
(a) the PGC transferee is deemed to be the holder of a permit under that Act to own and use, and a licence under that Act to operate, the transferred pipeline on the same terms and conditions (with such amendments as are necessary for their application to the transferred pipeline) and for the same period as those applicable to the PGC; and (b) or in part to the transferred pipeline
any permits or licences relating wholly force of this section, varied or cancelled to the extent necessary as a result of paragraph (a).
(2) As soon as practicable after the relevant date
in relation to the relevant allocation
statement, the Minister—
(a) must issue to the PGC transferee permit with sub-section (1)(a); and
(b) must vary or cancel permit and licence documents, or issue permit and licence documents, so that the PGC has permit and licence documents that comply with sub-section (1).
Gas Industry (Further Amendment) Act 1997
| s. 40 | Act No. 91/1997 |
(3) Subject to sub-section (4), the Pipelines Act 1967 does not apply to—
(a) a permit or licence referred to in sub- section (1)(a); or (b) the issue, under sub-section (2), of a permit or licence document; or (c) the cancellation of a permit or licence by force of sub-section (1)(b). (4) The Pipelines Act 1967 applies on and from the relevant date to—
(a) the renewal, transfer, amendment or cancellation of a permit or licence referred to in sub-section (1)(a), and to any new permit or licence issued on or after the expiry of that permit or licence; and (b) the renewal, transfer, amendment or cancellation of a permit or licence referred to in sub-section (3) and to any new permit or licence issued on or after the expiry of that permit or licence; and (c) the transfer of an interest in the transferred pipeline, other than a transfer under this Part; and (d) alteration, repair, maintenance,
the construction, reconstruction, pipeline.
(5) Despite sub-section (4), nothing in the
Pipelines Act 1967 requires a gas company to be the holder of a permit or licence under that Act by reason only of using a pipeline
that the gas company does not own or
construct.
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 41 PART 13B—PROVISIONS RELATING TO
PRIVATISATION
115R. Treasurer may be party to agreement for
sale
The Treasurer, on behalf of the Government of Victoria, may be a party to an agreement for the sale or disposal of shares in, or
property of, a public gas company, being a
sale or disposal on such terms and conditionsas the Treasurer approves.
115S. Freedom of Information Act 1982
The Freedom of Information Act 1982 does not apply to a document to the extent to which the document discloses information about—
(a)
the identity of any person expressing an interest in purchasing, or making an offer to purchase, any shares in a public gas company or any property or rights of such a company; or
(b)
the terms of any expression of interest or offer referred to in paragraph (a).'.
41. New Schedule 1A inserted
After Schedule 1 to the Principal Act insert—
"SCHEDULE 1A
Easements for use of gas company
The right of the gas company and its successors and transferees and its and their contractors, servants or agents—
(a)
to enter at any time the land to which the easement applies, with or without vehicles or equipment;
Gas Industry (Further Amendment) Act 1997
| s. 41 | Act No. 91/1997 |
(b)
to use the land for the purposes of, or incidental to, the conveyance of gas, including the laying down or construction on the land of pipelines;
(c)
to keep the land free from buildings or obstructions (including trees);
(d) to erect and maintain gates in any fences;
(e)
to inspect, maintain, alter, renew or remove pipelines or works on the land—
free from any interference to the surface of the land to a
depth greater than 0·3 metres without the prior writtenconsent of the gas company.".
_______________
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 42
PART 3—AMENDMENT OF OTHER ACTS
42. Borrowing and Investment Powers Act 1987
(1) In Schedule 1 to the Borrowing and Investment Powers Act 1987, before item 20A insert—
"20AB. VENCorp 5, 8, 9, 10, 11, 11AA, 14, 15, 20, 20A and 21.".
(2) In Schedule 1 to the Borrowing and Investment Powers Act 1987, omit item 26.
43. Country Fire Authority Act 1958
In section 32(2) of the Country Fire Authority Act 1958, for "gas company within the meaning of the Gas Industry Act 1994 or person
authorised under section 40 of the Gas Industry Act 1994" substitute "gas distribution company or gas transmission company within the meaning of the Gas Industry Act 1994".
44. Electricity Industry (Further Miscellaneous
Amendment) Act 1997In the Electricity Industry (Further
Miscellaneous Amendment) Act 1997—
(a) in section 16—
(i) for "VENCORP" substitute
"VENCorp";
(ii) for "Part 1A" substitute "Part 2";
(b)
in section 17, for "VENCORP" substitute "VENCorp";
(c)
in section 18(b), for "Part 1A" substitute "Part 2";
(d) in section 19—
(i) for "8C" substitute "16C";
Gas Industry (Further Amendment) Act 1997
| s. 45 | Act No. 91/1997 |
(ii) for "8CA" substitute "16CA";
(iii) for "VENCORP" substitute
"VENCorp";(e)
in section 22, for paragraph (b) substitute— "(b) sections 23 to 25 are repealed;";
(f)
in section 25, for "References" substitute "Reference";
(g)
in section 29, for "substitute" substitute "insert".
45. Essential Services Act 1958
In section 3 of the Essential Services Act 1958, in the definition of "essential service", for "the Gas Transmission Corporation, GASCOR" substitute "gas company within the meaning of the Gas Industry Act 1994".
46. Historic Buildings Act 1981
In section 3 of the Historic Buildings Act 1981,
in the definition of "public authority", for "the Gas
Transmission Corporation, GASCOR" substitute
"a public gas company within the meaning of theGas Industry Act 1994".
47. Melbourne City Link Act 1995
In section 3 of the Melbourne City Link Act
1995, in the definition of "public authority", for
paragraphs (c) and (d) substitute—"(c) a public gas company within the meaning of
the Gas Industry Act 1994;".
48. Pipelines Act 1967
After section 17(5) of the Pipelines Act 1967
insert—"(6) Sub-sections (3) and (4) do not apply in
relation to the conveyance of gas through a
Gas Industry (Further Amendment) Act 1997
Act No. 91/1997 s. 49 pipeline if the Gas Industry Act 1994
applies in relation to third party access tothat pipeline.".
49. Public Authorities (Dividends) Act 1983
In section 4(1)(ab) of the Public Authorities
(Dividends) Act 1983, in the definition of "public
authority", after paragraph (ab) insert—"(ac) VENCorp;".
50. State Electricity Commission Act 1958
In section 3(1) of the State Electricity
Commission Act 1958, for the definition of "gas
company" substitute—' "gas company" means a public gas company
within the meaning of the Gas Industry Act
1994;'.
51. State Owned Enterprises Act 1992
In section 88A(3) of the State Owned corporation" insert "or by such a company all the shares in which are held by or on behalf of the State or a statutory corporation.".
52. Treasury Corporation of Victoria Act 1992
In section 36A of the Treasury Corporation of authority", after "GASCOR," insert "a public gas company within the meaning of the Gas Industry Act 1994,".
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Gas Industry (Further Amendment) Act 1997
| Notes | Act No. 91/1997 |
NOTES
†
Minister's second reading speech—
Legislative Assembly: 30 October 1997
Legislative Council: 19 November 1997
The long title for the Bill for this Act was "to amend the Gas Industry
Act 1994 and certain other Acts and for other purposes."
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