National Gas (NSW) Law

This law may be cited as the National Gas (NSW) Law.

The nature of a substance as a primary gas or a gas blend is not changed by the presence in the substance of the following—

an additive required for safety;

an impurity.

A civil penalty provision is—

a provision of this Law specified in an item in the Table at the foot of this section; or

a provision of this Law (other than an offence provision) or the Rules that is prescribed by the Regulations to be a civil penalty provision; or

a declared system provision that is prescribed by or under the application Act of the adoptive jurisdiction to be a civil penalty provision.

Table

Item

Provision

1

Section 56

2

Section 57

2A

Section 91BE(1)

2B

Section 91BF(1)

2C

Section 91BJ(1)

2D

Section 91BN(5)

2DA

Section 91BRD(1)

2DB

Section 91BRJ(5)

2DC

Section 91FC(3) and (4)

2E

Section 91FEA

2F

Section 91LB(1)

2G

Section 91MB(6)

3

Section 131

4

Section 133

5 (Repealed)

6

Section 135

7

Section 136

8

Section 139

9

Section 140

10

Section 141

11

Section 143(6)

12

Section 147

13

Section 148

14 (Repealed)

15 (Repealed)

16 (Repealed)

17 (Repealed)

18

Section 223

19

Section 225

Subject to this section, the civil penalty for a breach of a civil penalty provision is—

in the case of a breach of a civil penalty provision, other than a provision prescribed under paragraph (b) or (c)—

if the breach is by a natural person—

an amount not exceeding $33 900; plus

an amount not exceeding $3 390 for every day during which the breach continues;

if the breach is by a body corporate—

an amount not exceeding $170 000; plus

an amount not exceeding $17 000 for every day during which the breach continues; or

in the case of a breach of a civil penalty provision prescribed by the Regulations for the purposes of this paragraph—

if the breach is by a natural person—

an amount not exceeding $287 000; plus

an amount not exceeding $14 400 for every day during which the breach continues;

if the breach is by a body corporate—

an amount not exceeding $1 435 000; plus

an amount not exceeding $71 800 for every day during which the breach continues; or

in the case a breach of a civil penalty provision prescribed by the Regulations for the purposes of this paragraph—

if the breach is by a natural person—an amount not exceeding $500 000;

if the breach is by a body corporate—an amount not exceeding the greater of the following—

$10 000 000;

if the Court can determine the value of any benefit reasonably attributable to the breach of the civil penalty provision that the body corporate, and any body corporate related to the body corporate, has obtained, directly or indirectly—3 times the value of that benefit;

if the Court cannot determine the value of the benefit—10% of the annual turnover of the body corporate during the 12-month period ending at the end of the month in which the body corporate breached, or began breaching, the civil penalty provision.

Note—

See Schedule 2 clause 47A, which provides for the amounts specified in this subsection to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

Subsection (1)(c)(ii)(B) or (C) will only apply in a particular case if the AER, in applying for an order under section 231(2)(a), requests that those provisions be applied in that particular case.

A conduct provision is—

a provision of this Law specified in an item in the Table at the foot of this section; or

a provision of this Law (other than an offence provision) or the Rules that is prescribed by the Regulations to be a conduct provision; or

a declared system provision that is prescribed by or under the application Act of the adoptive jurisdiction to be a conduct provision.

Table

Item

Provision

A1

Section 91BP

A2

Section 91BRF

A3

Section 91BRG

1

Section 133

2 (Repealed)

3

Section 135

4

Section 136

5

Section 147

6

Section 148

7 (Repealed)

A prospective user is a person who seeks or wishes to be provided with a pipeline service by means of a pipeline.

To avoid doubt, a user is also a prospective user if the user seeks or wishes to be provided with a pipeline service by means of a pipeline other than a pipeline service already provided to them under—

a contract; or

an access determination.

A regulatory obligation or requirement is—

in relation to the provision of a pipeline service by a service provider—

a pipeline safety duty; or

a pipeline reliability standard; or

a pipeline service standard; or

an obligation or requirement under—

this Law or the Rules; or

the National Energy Retail Law or the National Energy Retail Rules; or

an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, that levies or imposes a tax or other levy that is payable by a service provider; or

an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, that regulates the use of land in a participating jurisdiction by a service provider; or

an Act of a participating jurisdiction or any instrument made or issued under or for the purposes of that Act that relates to the protection of the environment; or

an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act (other than national gas legislation or an Act of a participating jurisdiction or an Act or instrument referred to in subparagraphs (ii) to (iv)), that materially affects the provision, by a service provider, of pipeline services to which an applicable access arrangement applies.

A regulatory obligation or requirement does not include an obligation or requirement to pay a fine, penalty or compensation—

for a breach of—

a pipeline safety duty; or

a pipeline reliability standard; or

a pipeline service standard; or

under this Law or the Rules, the National Energy Retail Law or the National Energy Retail Rules¹ or an Act or an instrument referred to in subsection (1)(b)(ii) to (v).

Notes—

1

See also section 24(2)(b).

2

The RoLR cost recovery scheme is dealt with under Part 6 of the National Energy Retail Law.

A regulatory payment is a sum that a service provider had been required or allowed to pay to a user or an end user for a breach of, as the case requires—

a pipeline reliability standard; or

a pipeline service standard,

because it was efficient for the service provider (in terms of the service provider’s overall business) to pay that sum.

Note—

See also section 24(2)(b).

A service provider is a person who—

owns, controls or operates; or

intends to own, control or operate,

a pipeline or any part of a pipeline.

Note—

A service provider must not provide a pipeline service by means of a pipeline unless the service provider is a legal entity of a specified kind: see section 131.

If AEMO controls or operates (without at the same time owning) a pipeline or any part of a pipeline, AEMO is not for that reason to be taken to be a service provider for the purposes of this Law.

If AEMO controls or operates (without at the same time owning) a compression service facility or another facility of a type prescribed by the Regulations for the purposes of paragraph (c) of the definition of transportation facility in section 2, AEMO is not for that reason to be taken to be a transportation service provider for the purposes of this Law.

A small shipper is a user or prospective user—

who is, or seeks to be, a party to a contract with a service provider for the provision of a pipeline service by means of a pipeline; and

for whom the total daily pipeline capacity right provided, or sought to be provided, under 1 or more contracts with the same service provider and by means of the same pipeline is not more than—

the daily pipeline capacity right prescribed for this definition by the Regulations; or

if no daily pipeline capacity right is prescribed by the Regulations, the lesser of the following amounts—

5 terajoules per day;

20% of the pipeline’s nameplate rating.

However, a small shipper does not include a corporation with a market capitalisation of more than $500 000 000 or a related body corporate of the corporation.

Note—

See also section 19A in relation to related bodies corporate.

In this section—

nameplate rating, in relation to a pipeline, means the maximum daily capacity of the pipeline under normal operating conditions.

A local regulation may—

nominate an entity, being an entity that is licensed or otherwise authorised under the jurisdictional gas legislation of that jurisdiction to operate a distribution pipeline that is not a scheme pipeline, as an entity to which this section applies (the nominated distributor); and

apply to the nominated distributor specified provisions of the Rules that relate to the following matters—

the connection of premises of retail customers;

retail support obligations between distributors and retailers;

credit support arrangements between distributors and retailers.

The application of any such specified provisions of the Rules to the nominated distributor is subject to such modifications as may be specified in the local regulation.

The nominated distributor—

must comply with the Rules to the extent that the Rules are applied by the local regulation to the nominated distributor; and

may, to the extent that the Rules apply to the nominated distributor, be proceeded against under this Law for any breach of those Rules.

A nomination of an entity by a local regulation may be made for—

the whole or a specified part of the geographical area of a jurisdiction; or

the whole or a specified part of the distribution pipeline that is operated by the entity,

or for both.

The Minister responsible for administering the application Act (other than the application Act of South Australia) under which a local regulation referred to in this section is made is to make arrangements for notice of the making and publication of the regulation to be published for information in the South Australian Government Gazette.