New South Wales: Gas Supply Act 1996 (NSW)

Gas Supply Act 1996 No 38 An Act to regulate the supply of gas; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Gas Supply Act 1996. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation. (2) (Repealed) 3 Objects (1) The objects of this Act are as follows— (a) to encourage the development of a competitive market in gas, so as to promote the thermally efficient use of gas and to deliver a safe and reliable supply of gas in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act 1991, (b) to regulate gas reticulation and gas supply, so as to protect the interests of customers, (b1) to facilitate the continuity of supply of natural gas to customers, (c) to promote the safe use of gas. (2) For the purpose of enabling the objects of this Act to be achieved, the Minister, the Tribunal and any review panel each have the duties set out in subsections (3)–(6). (3) In relation to licensed distributors involved in the reticulation of gas, the duties are as follows— (a) to ensure that such persons satisfy, so far as it is economical for them to do so, all reasonable demands for the conveyance of gas, (b) to take proper account of the business interests of such persons and the ability of such persons to finance the provision of gas reticulation services, (c), (d) (Repealed) (e) to take proper account of the interests of gas users in respect of transportation tariffs and other terms of service. (3A) In relation to authorised reticulators and licensed distributors involved in the distribution or reticulation of gas, the duties are as follows— (a) to consider the development of efficient and safe gas distribution pipelines and gas distribution systems, (b) to promote the efficient and safe operation of gas distribution pipelines and gas distribution systems. (4) (Repealed) (5) In relation to gas users, the duties are to promote the efficient and safe use of gas. (6) Nothing in this section permits or requires this Act to be construed in a way that is inconsistent with the National Gas (NSW) Law or the National Gas (NSW) Regulations or the National Energy Retail Law (NSW) or the National Energy Retail Regulations (NSW). (7) Nothing in subsections (2)–(6) gives rise to, or can be taken into account in, any civil cause of action. 4 Definitions (1) Expressions used in this Act that are defined in the Dictionary in Schedule 3 have the meanings set out in the Dictionary. (2) Words and expressions used in this Act (other than distributor) have the same meaning as they have in the National Energy Retail Law (NSW) but (unless otherwise expressly provided) have that meaning only in relation to the supply of natural gas. Part 2 Natural gas authorisations and pricing orders Division 1 Authorisations 5 Prohibition of unauthorised gas reticulation (1) A person must not operate a distribution pipeline for the purpose of conveying natural gas to any other person otherwise than under the authority of an authorisation. Maximum penalty—5,000 penalty units. (2) A person does not operate a distribution pipeline for the purpose of conveying natural gas to another person merely because the person supplies natural gas to that other person by means of a distribution pipeline. (3) (Repealed) 6 Authorisations Subject to any conditions imposed by or under this Act, a reticulator's authorisation authorises its holder, and any other person specified in the authorisation, to operate the distribution pipeline so specified for the purpose of conveying natural gas to other persons. 7 Applications (1) An application for an authorisation or for the transfer of an authorisation— (a) must be accompanied by such fee as may be determined by the Minister, and (b) must contain such information as may be determined by the Minister, and (c) must be lodged at the office of the Tribunal. (2) Such an application may only be made on behalf of a person who is a body corporate. 8 Public consultation (1) Before determining an application for an authorisation or for the transfer of an authorisation, the Minister must cause notice of the application to be published in the Gazette and in such other manner as the Minister is satisfied is likely to bring the notice to the attention of members of the public. (2) The notice must indicate— (a) the nature of the authorisation to which the application relates, and (b) the identity of the proposed holder of the authorisation, and (c) the district in which the authorisation, if granted or transferred, would operate, and (d) where submissions on the application should be lodged, and (e) the time (being at least 40 days from the date on which the notice is first published) within which any such submissions should be lodged, and (f) such other matters as may be prescribed by the regulations. (3) The Minister must give due consideration to matters arising from any submissions under this section. 9 Determination of applications (1) The Minister may determine an application for an authorisation by— (a) granting the application, or (b) granting the application with the modifications the Minister considers appropriate, or (c) refusing the application. (1A) The Minister may determine an application for the transfer of an authorisation by— (a) granting the application, or (b) refusing the application. (1B) When granting an application under subsection (1), with or without modifications, or subsection (1A), the Minister may impose conditions under section 11(1)(b). (2) An application may be refused on any of the following grounds— (a) that the proposed holder of the authorisation fails to satisfy such technical or prudential criteria as have been adopted by the Minister to determine whether a person is able to operate a viable business as an authorised reticulator, (b) such grounds as may be prescribed by the regulations, (c) such grounds as the Minister considers relevant, having regard to the interests of consumers and the need to promote a competitive market for natural gas, to prevent misuse of market power and to ensure the security and reliability of the New South Wales supply system for natural gas. (3) The Minister must endeavour to determine an application within 6 months after it is made. 10 Duration of authorisations Subject to the conditions imposed on it, an authorisation remains in force until it is cancelled. 11 Conditions of authorisations (1) An authorisation is subject to the following conditions— (a) the conditions imposed by this Act and the regulations, (b) such other conditions (not inconsistent with those imposed by this Act and the regulations) as the Minister may from time to time impose in relation to the authorisation. (2) Without limitation, the Minister may impose the following kinds of conditions on an authorisation— (a) a condition specifying the period for which the authorisation is to remain in force, (b) a condition requiring the holder of the authorisation to exercise its functions under this Act in accordance with specified guidelines or subject to specified restrictions, including conditions as to the district within which those functions may be exercised, (c) a condition requiring the holder of the authorisation to continue to satisfy such technical or prudential criteria as have been adopted by the Minister to determine whether a person is able to operate a viable business as an authorised reticulator, (d) a condition requiring the holder of the authorisation to maintain specified insurance cover in respect of specified risks, (e) a condition requiring the holder of the authorisation— (i) to prepare, and submit to the Minister for approval, a plan setting out (in accordance with guidelines established by the Minister) the holder's policies, practices and procedures with respect to the conduct of its affairs under the authorisation, and (ii) to conduct its affairs under the authorisation in accordance with the plan as so approved, (f) a condition requiring the holder of the authorisation to furnish to the Minister (at such times and in respect of such periods as the Minister may determine) such information as the Minister may determine to enable the Minister to ascertain whether or not the holder is complying with the conditions imposed on the authorisation by this Act or the regulations or by the Minister, (g) a condition requiring the holder of the authorisation to develop and implement a strategy promoting the adoption of thermally efficient appliances and efficient energy-use practices. (3) The Minister may not impose conditions on an authorisation with respect to the terms on which an authorised reticulator grants access to its distribution pipelines. (4) (Repealed) 11A Authorisation conditions relating to energy ombudsman scheme (1) It is a condition of a reticulator's authorisation that— (a) the authorisation holder must be a member of the energy ombudsman scheme, and (b) the authorisation holder is bound by, and must comply with, any decision of the energy ombudsman under the scheme relating to a dispute or complaint involving the authorisation holder and a small customer. Note— The energy ombudsman has power to deal with disputes between retailers and customers under this Act, see sections 96A and 96B of the Electricity Supply Act 1995 and the regulations under that Act. (2) This section does not apply in respect of an authorised reticulator if the authorised reticulator is exempt from the requirement to be a member of the energy ombudsman scheme. (3) The Minister may, by order in writing, exempt an authorised reticulator from the requirement to be a member of the energy ombudsman scheme if of the opinion that the authorised reticulator is not currently engaging in any activities for which an authorisation is required. (4) In this section— energy ombudsman scheme means the scheme established under section 96B of the Electricity Supply Act 1995. 12 Variation of conditions of authorisations (1) The Minister may vary the conditions of an authorisation, either on his or her own motion or on the application of the holder of the authorisation. (2) In the case of an application to vary the conditions of an authorisation so as to extend a distribution district, section 8 applies to the application in the same way as it applies to an application for an authorisation. (3) An application to vary the conditions of an authorisation so as to extend a distribution district must be accompanied by such fee as may be determined by the Minister. 13 Enforcement of authorisations by the Minister (1) If the Minister is satisfied that the holder of an authorisation has knowingly contravened a requirement of this Act, the regulations or the conditions of the authorisation, the Minister may do 1 or more of the following— (a) impose a monetary penalty not exceeding $250,000 on the holder of the authorisation, (b) if the holder of the authorisation is a corporation, impose a monetary penalty not exceeding $50,000 on a person who is a director of or concerned in the management of the corporation, but only if the Minister is satisfied that the person knowingly authorised or permitted the contravention, (c) cancel the authorisation. (2) Nothing in this section prevents an authorisation from being cancelled at the request of the authorisation holder. 13A Enforcement of authorisations by Tribunal (1) The Tribunal may impose a monetary penalty on the holder of an authorisation. (2) The Tribunal may, instead of imposing a monetary penalty, require the holder of the authorisation to take such action as the Tribunal considers appropriate in the circumstances, including (for example) requiring the sending of information to customers or the publication of notices in newspapers. (3) The Tribunal may not require action to be taken under subsection (2) by the holder of an authorisation if the cost of that action would exceed the monetary penalty that the Tribunal could impose under this section on the holder. (4) If the Tribunal requires information to be sent to a customer under subsection (2), the holder of the authorisation may satisfy that requirement by sending the information to the customer with the next account or bill to be sent to the customer by the holder or, if the holder is sending other information to that customer before the next account or bill, with that other information. (5) Action may be taken under this section only if the holder of the authorisation has knowingly contravened the conditions of the authorisation. (6) The monetary penalty that the Tribunal may impose under this section must not exceed $20,000 for the first day on which the contravention concerned occurs and a further $1,000 for each subsequent day (not exceeding 30 days) on which the contravention continues. (7) The Tribunal must not take action under this section unless— (a) the Tribunal has considered whether the contravention has been or is likely to be the subject of any other penalty or action or any claim for compensation, and is satisfied that it is nevertheless appropriate to take action under this section, and (b) the Tribunal has considered the action that the holder of the authorisation has taken or is likely to take in respect of the contravention and the cost to the holder in taking that action, and is satisfied that it is nevertheless appropriate to take action under this section. (8) The Tribunal is required to consider the seriousness of the contravention concerned in determining to impose a monetary penalty under this section. (9) The Tribunal must not take action under this section in respect of a contravention if the Minister has already taken action under section 13 in respect of the contravention. (10) Nothing in this section affects the Minister's powers under section 13 in respect of a contravention, whether or not the Tribunal has already taken action under this section in respect of the contravention. 14 Holder of authorisation to be notified of proposed action (1) The Minister must not take action under section 11, 12 or 13, or the Tribunal must not take action under section 13A, unless— (a) notice of the proposed action has been given to the holder of the authorisation, and (b) the holder of the authorisation has been given a reasonable opportunity to make submissions with respect to the proposed action, and (c) the Minister or Tribunal has given due consideration to any such submissions. (2) In addition, the Minister must not take action under section 13, or the Tribunal must not take action under section 13A, in respect of any contravention referred to in that section unless— (a) notice of the contravention has been given to the holder of the authorisation, and (b) the holder of the authorisation has been given a reasonable opportunity to discontinue the contravention and take such steps (if any) as are specified in the notice to remedy the effects of the contravention, and (c) the holder of the authorisation has failed to discontinue the contravention or take those steps. (3) Subsection (1) does not apply to action taken at the request of the holder of the authorisation. 15 Annual authorisation fees (1) It is a condition of an authorisation that the holder of the authorisation must pay an annual authorisation fee determined by the Minister. (2) The annual authorisation fee must be paid by the holder of the authorisation by the date and in the way specified by the Minister by written notice to the holder. 16 (Repealed) 17 Appeals against decisions concerning authorisations (1) A person aggrieved by any of the following decisions of the Minister may appeal to the Supreme Court against the decision— (a) a decision cancelling an authorisation, (b) a decision imposing a condition on an authorisation (other than a condition imposed when the authorisation is granted), (c) a decision varying the conditions of an authorisation, (d) a decision refusing an application for the transfer of an authorisation, (e) a decision imposing a monetary penalty on the holder of an authorisation. (2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the original decision was made, may be given on the appeal. (3) For the purposes of an appeal, the Minister may certify in writing that a specified policy applies to the subject matter of the appeal. (4) In deciding an appeal to which such a certificate relates, the Supreme Court is required to apply the policy so certified, except to the extent to which the application of that policy would be contrary to law. (5) The decision of the Supreme Court in respect of an appeal is taken to be the decision of the Minister and is to be given effect to accordingly. 17A Administrative review of certain decisions concerning authorisations (1) The holder of an authorisation who is aggrieved by a decision of the Tribunal to take action under section 13A in relation to the holder of the authorisation may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (2) Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply to such a decision of the Tribunal. 18 Register of authorisations (1) A register of authorisations is to be kept at the office of the Tribunal. (2) The register is to contain details of all authorisations that are granted or transferred, including details concerning the conditions imposed on them by the Minister, and is also to contain details of all determinations made by the Minister with respect to authorisations and their conditions. (3) The register is to be kept available for inspection by members of the public, free of charge, during normal office hours. (4) Copies of entries in the register are to be made available to members of the public, at cost, during normal office hours. Divisions 2, 3 19–28A (Repealed) Division 4 Review panels 29 Establishment of review panel (1) The Minister is to establish a review panel to review a matter in respect of which an application for review has been made under this Part. (2) A review panel is to consist of 3 persons appointed by the Minister, of whom one is to be appointed as the chairperson. (3) Subject to this Act, the regulations may make provision for or with respect to the members and procedure of a review panel and, in particular, for or with respect to the payment of costs of proceedings before a review panel. 30 Determinations by review panel (1) A review panel is to review the matter in respect of which it has been established. (2) In considering the matter under review, the review panel— (a) may conduct investigations, and (b) may have regard to such evidence as it considers relevant including, in particular, any submissions made by persons who are (or who may be) affected by the matter. (3) Except to the extent to which the regulations otherwise provide, Division 7 of Part 3 of the Independent Pricing and Regulatory Tribunal Act 1992 applies to an investigation under this section in the same way as it applies to an investigation under that Act, and so applies as if a reference in that Division to the Tribunal were a reference to a review panel. (4), (5) (Repealed) (6) The decision of the review panel on the matter under review— (a) takes effect on the day on which it is given, or on such later day as may be specified in the decision, and (b) has effect as if it were a decision or order, as the case requires, of the person by whom the original decision or order was made, and (c) does not affect any access agreement or access determination that is in force when it takes effect. Division 5 General 31 (Repealed) 32 Investigations by Tribunal (1) The Tribunal may conduct investigations for the purpose of enabling it to exercise its functions under this Part. (2) Except to the extent to which the regulations otherwise provide, Division 7 of Part 3 of the Independent Pricing and Regulatory Tribunal Act 1992 applies to an investigation under this section in the same way as it applies to an investigation under that Act. (3), (4) (Repealed) 33 Maintenance of records (1) The Tribunal may, by order in writing, direct the holder of an authorisation— (a) to keep specified records, and (b) to furnish specified information to the Tribunal, for the purpose of enabling the Tribunal to ascertain whether or not the holder of the authorisation is complying with the requirements of this Act. (2) It is a condition of an authorisation that its holder must comply with the requirements of any such direction. (3) It is the duty of the Tribunal to notify the Minister if it becomes aware of any contravention of this Part by the holder of an authorisation. (4) In this section, a reference to the holder of an authorisation extends (in the case of a body corporate) to any of its related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth. Part 2A Operation of natural gas wholesale market Divisions 1–3 33A–33I (Repealed) Division 4 33J Definitions (cf section 63B of Electricity Supply Act 1995) In this Part— market operations rule means a rule approved under section 33K. 33K Market operations rules (cf section 63C of Electricity Supply Act 1995) (1) The Minister may approve rules for or with respect to the following matters— (a), (b) (Repealed) (c) the operation of distribution pipelines, (d) (Repealed) (d1) the establishment and operation of a wholesale natural gas market scheme, to ensure the continuity of supply of natural gas to customers, that will apply to the owners and operators of natural gas transmission pipelines, shippers of natural gas and authorised reticulators and retailers, (e) (Repealed) (f) any other matter prescribed by the regulations, (g) matters ancillary to or consequential on the matters set out in paragraphs (c)–(f). (2) A rule may make provision for or with respect to a matter by applying, adopting or incorporating, with or without modification, the provisions of any Act or statutory rule or any other publication, whether of the same or of a different kind. (2A) Rules referred to in subsection (1) (d1) may make provision for or with respect to the following— (a) interruptions to the supply of natural gas in circumstances specified in the rules, (b) the functions of the scheme regulator (being the person identified as such by the rules) with respect to ensuring compliance with the rules, including— (i) the power to make orders against the owners and operators of natural gas transmission pipelines, shippers of natural gas and authorised reticulators and retailers (the scheme participants), and (ii) the power to impose civil penalties of up to $50,000 on scheme participants for failure to comply with the rules or any order of the scheme regulator, (c) the costs payable by a scheme participant if the scheme regulator makes an order against the scheme participant or imposes a civil penalty on the scheme participant, and the recovery of any such costs or civil penalty. (3) A rule may— (a) apply generally or be limited in its application by reference to specified exceptions or factors, or (b) apply differently according to different factors of a specified kind, or (c) authorise any matter or thing to be from time to time agreed, determined, applied or regulated by any specified person or body. (4) The Minister may from time to time approve amendments to the rules or the revocation of rules. (5) If a rule, or a rule amending or revoking a rule, is approved by the Minister— (a) written notice of the approval of the rule must be published in the Gazette, and (b) the rule takes effect on the day on which notice is so published or, if a later day is specified in the rule for commencement, on the later day so specified, and (c) the Minister must make available a copy of the rule to each retailer or reticulator, unless the rule is approved in respect of a matter referred to in subsection (1) (d1), and (d) the Minister must make available a copy of the rule on the internet site of the Department. (6) A rule must not be inconsistent with this Act or the regulations, or the National Energy Retail Law (NSW) or the National Energy Retail Regulations (NSW), or the National Gas (NSW) Law or the National Gas (NSW) Regulations, and is unenforceable to the extent of any such inconsistency. (7) Subject to subsection (6), a rule may be approved for the purposes of both this Act and any other Act or law. (8) In this section— natural gas transmission pipeline means the gas pipes and associated equipment that are used to convey and control the conveyance of natural gas to distribution pipelines and to the premises of customers, but does not include— (a) any distribution pipeline (other than a pipeline that the regulations declare to be, or to form part of, a natural gas transmission pipeline), or (b) any gas installation, or (c) any gas pipe or associated equipment that is wholly situated on land owned by the person who owns or controls the gas pipe or equipment, or (d) any gas pipe or associated equipment that the regulations declare not to be, or not to form part of, a natural gas transmission pipeline. shipper of natural gas means a person that purchases services with respect to the transmission of natural gas by way of a natural gas transmission pipeline from the owner or operator of the pipeline, whether or not the gas is transported for the person's own use. 33L Obligations under rules (cf section 63D of Electricity Supply Act 1995) (1) A person must not contravene the market operations rules. Maximum penalty—200 penalty units. (2) (Repealed) (3) It is a condition of a reticulator's authorisation that the reticulator must comply with the market operations rules. (4) Subsection (1) does not apply to a person in the person's capacity as a customer of a retailer. (5) A person may be convicted of an offence under this section even though that person may have been required to pay a civil penalty under market operations rules in respect of the same act or omission. 33LA Civil liability of scheme operator under section 33K (1) (d1) rules (1) The scheme operator, or an officer or employee of the scheme operator, does not incur any civil monetary liability for an act or omission in the exercise, or purported exercise, of a function of the scheme operator under the rules unless the act or omission is done or made in bad faith or through negligence. (2) The operator of a natural gas transmission pipeline, or an officer or employee of the operator, does not incur any civil monetary liability in respect of a disclosure of information to the scheme operator in compliance with, or in purported compliance with, a requirement under the rules unless the disclosure is made in bad faith or through negligence. (3) The civil monetary liability for an act or omission of a kind referred to in subsection (1), or of a disclosure referred to in subsection (2), done or made through negligence may not exceed the maximum amount prescribed by the regulations. (4) For the purposes of subsection (3), the regulations may— (a) prescribe maximum amounts that are limited in their application to persons, events, circumstances, losses or periods specified in the regulations, and (b) prescribe maximum amounts that vary in their application according to the persons to whom or the events, circumstances, losses or periods to which they are expressed to apply, and (c) prescribe the manner in which a maximum amount is to be divided amongst claimants. (5) The scheme operator may enter into an agreement with a person varying or excluding the operation of a provision of this section (other than subsection (6) (b)) and, to the extent of that agreement, that provision does not apply. (6) This section does not apply to— (a) any liability of an officer or employee of the scheme operator to the scheme operator, or (b) any liability for death or bodily injury. (7) In this section— civil monetary liability means liability to pay damages or compensation or any other amount in a civil proceeding, but does not include liability to pay a civil penalty under the rules or the costs of proceedings. rules means the rules referred to in section 33K (1) (d1). scheme operator means the person identified as the scheme operator by the rules. Divisions 5, 6 33M–33T (Repealed) Part 3 Liquefied petroleum gas and other gases 34 Prohibition of unlicensed distribution of LPG and other gases A person must not operate a distribution system for the purpose of conveying to any other person— (a) liquefied petroleum gas, or (b) any other gas (other than natural gas) prescribed by the regulations for the purposes of this section, otherwise than under the authority of a distributor's licence. Maximum penalty—5,000 penalty units. 35 Licences Subject to any conditions imposed by or under this Act, a distributor's licence authorises its holder, and any other person specified in the licence, to operate the distribution system so specified for the purpose of conveying to other persons any gas so specified. 36 Applications An application for a licence or for the transfer of a licence— (a) must be accompanied by such fee as may be determined by the Minister, and (b) must contain such information as may be determined by the Minister, and (c) must be lodged at the office of the Tribunal. 37 Public consultation (1) Before determining an application for a licence or for the transfer of a licence, the Minister must cause notice of the application to be published in the Gazette and in such other manner as the Minister is satisfied is likely to bring the notice to the attention of members of the public. (2) The notice must indicate— (a) the nature of the licence to which the application relates, and (b) the identity of the proposed holder of the licence, and (c) the district in which the licence, if granted or transferred, would operate, and (d) where submissions on the application should be lodged, and (e) the time (being at least 40 days from the date on which the notice is first published) within which any such submissions should be lodged, and (f) such other matters as may be prescribed by the regulations. (3) The Minister must give due consideration to matters arising from any submissions under this section. 38 Determination of applications (1) The Minister may determine an application for a licence by— (a) granting the application, or (b) granting the application with the modifications the Minister considers appropriate, or (c) refusing the application. (1A) The Minister may determine an application for the transfer of a licence by— (a) granting the application, or (b) refusing the application. (1B) When granting an application under subsection (1), with or without modifications, or subsection (1A), the Minister may impose conditions under section 40(1)(b). (2) An application may be refused on any of the following grounds— (a) that the proposed holder of the licence fails to satisfy such technical or prudential criteria as have been adopted by the Minister to determine whether a person is able to operate a viable business as a licensed distributor, (b) such grounds as may be prescribed by the regulations, (c) such grounds as the Minister considers relevant, having regard to the interests of consumers and the need to promote a competitive market for the gas concerned, to prevent misuse of market power and to ensure the security and reliability of the New South Wales supply system for gas (other than natural gas). (3) The Minister must endeavour to determine an application within 6 months after it is made. 39 Duration of licences Subject to the conditions imposed on it, a licence remains in force until it is cancelled. 40 Conditions of licences (1) A licence is subject to the following conditions— (a) the conditions imposed by this Act and the regulations, (b) such other conditions (not inconsistent with those imposed by this Act and the regulations) as the Minister may from time to time impose in relation to the licence. (2) Without limitation, the Minister may impose the following kinds of conditions on a licence— (a) a condition specifying the period for which the licence is to remain in force, (b) a condition requiring the holder of the licence to exercise its functions under this Act in accordance with specified guidelines or subject to specified restrictions, including conditions as to— (i) the district within which those functions may be exercised, and (ii) the implementation of Government policy on community service obligations to small retail customers, (c) a condition requiring the holder of the licence to continue to satisfy such technical or prudential criteria as have been adopted by the Minister to determine whether a person is able to operate a viable business as a licensed distributor, (d) a condition requiring the holder of the licence to maintain specified insurance cover in respect of specified risks, (e) a condition requiring the holder of the licence— (i) to prepare, and submit to the Minister for approval, a plan setting out (in accordance with guidelines established by the Minister) the holder's policies, practices and procedures with respect to the conduct of its affairs under the licence, and (ii) to conduct its affairs under the licence in accordance with the plan as so approved, (f) a condition requiring the holder of the licence to furnish to the Minister (at such times and in respect of such periods as the Minister may determine) such information as the Minister may determine to enable the Minister to ascertain whether or not the holder is complying with the conditions imposed on the licence by this Act or the regulations or by the Minister. (3) The Minister may not impose a condition on a licence of the kind referred to in subsection (2) (b) (ii) unless the Minister has entered into an undertaking, on behalf of the State, to indemnify the holder of the licence with respect to the costs incurred by the holder in complying with the requirements of the condition. 41 Variation of conditions of licences (1) The Minister may vary the conditions of a licence, either on his or her own motion or on the application of the holder of the licence. (2) In the case of an application to vary the conditions of a licence so as to extend a distribution district, section 37 applies to the application in the same way as it applies to an application for a licence. (3) An application to vary the conditions of a licence so as to extend a distribution district must be accompanied by such fee as may be determined by the Minister. 42 Enforcement of licences by the Minister (1) If the Minister is satisfied that the holder of a licence has knowingly contravened a requirement of this Act, the regulations or the conditions of the licence, the Minister may do 1 or more of the following— (a) impose a monetary penalty not exceeding $250,000 on the holder of the licence, (b) if the licence holder is a corporation—impose a monetary penalty not exceeding $50,000 on a person who is a director of or concerned in the management of the corporation, but only if the Minister is satisfied that the person knowingly authorised or permitted the contravention, (c) cancel the licence. (2) Nothing in this section prevents a licence from being cancelled at the request of the licence holder. 42A Enforcement of licences by Tribunal (1) The Tribunal may impose a monetary penalty on the holder of a licence. (2) The Tribunal may, instead of imposing a monetary penalty, require the holder of the licence to take such action as the Tribunal considers appropriate in the circumstances, including (for example) requiring the sending of information to customers or the publication of notices in newspapers. (3) The Tribunal may not require action to be taken under subsection (2) by the holder of a licence if the cost of that action would exceed the monetary penalty that the Tribunal could impose under this section on the holder. (4) If the Tribunal requires information to be sent to a customer under subsection (2), the holder of the licence may satisfy that requirement by sending the information to the customer with the next account or bill to be sent to the customer by the holder or, if the holder is sending other information to that customer before the next account or bill, with that other information. (5) Action may be taken under this section only if the holder of the licence has knowingly contravened the conditions of the licence. (6) The monetary penalty that the Tribunal may impose under this section must not exceed $20,000 for the first day on which the contravention concerned occurs and a further $1,000 for each subsequent day (not exceeding 30 days) on which the contravention continues. (7) The Tribunal must not take action under this section unless— (a) the Tribunal has considered whether the contravention has been or is likely to be the subject of any other penalty or action or any claim for compensation, and is satisfied that it is nevertheless appropriate to take action under this section, and (b) the Tribunal has considered the action that the holder of the licence has taken or is likely to take in respect of the contravention and the cost to the holder in taking that action, and is satisfied that it is nevertheless appropriate to take action under this section. (8) The Tribunal is required to consider the seriousness of the contravention concerned in determining to impose a monetary penalty under this section. (9) The Tribunal must not take action under this section in respect of a contravention if the Minister has already taken action under section 42 in respect of the contravention. (10) Nothing in this section affects the Minister's powers under section 42 in respect of a contravention, whether or not the Tribunal has already taken action under this section in respect of the contravention. 43 Holder of licence to be notified of proposed action (1) The Minister must not take action under section 40, 41 or 42, or the Tribunal must not take action under section 42A, unless— (a) notice of the proposed action has been given to the holder of the licence, and (b) the holder of the licence has been given a reasonable opportunity to make submissions with respect to the proposed action, and (c) the Minister or Tribunal has given due consideration to any such submissions. (2) In addition, the Minister must not take action under section 42, or the Tribunal must not take action under section 42A, in respect of any contravention referred to in that section unless— (a) notice of the contravention has been given to the holder of the licence, and (b) the holder of the licence has been given a reasonable opportunity to discontinue the contravention and take such steps (if any) as are specified in the notice to remedy the effects of the contravention, and (c) the holder of the licence has failed to discontinue the contravention or take those steps. (3) Subsection (1) does not apply to action taken at the request of the holder of the licence. 44 Annual licence fees (1) It is a condition of a licence that the holder of the licence must pay an annual licence fee determined by the Minister. (2) The annual licence fee must be paid by the holder of the licence by the date and in the way specified by the Minister by written notice to the holder. 45 Appeals against decisions concerning licences (1) A person aggrieved by any of the following decisions of the Minister may appeal to the Supreme Court against the decision— (a) a decision cancelling a licence, (b) a decision imposing a condition on a licence (other than a condition imposed when the licence is granted), (c) a decision varying the conditions of a licence, (d) a decision refusing an application for the transfer of a licence, (e) a decision imposing a monetary penalty on the holder of a licence. (2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the original decision was made, may be given on the appeal. (3) For the purposes of an appeal, the Minister may certify in writing that a specified policy applies to the subject matter of the appeal. (4) In deciding an appeal to which such a certificate relates, the Supreme Court is required to apply the policy so certified, except to the extent to which the application of that policy would be contrary to law. (5) The decision of the Supreme Court in respect of an appeal is taken to be the decision of the Minister and is to be given effect to accordingly. 45A Administrative review of certain decisions concerning licences (1) The holder of a licence who is aggrieved by a decision of the Tribunal to take action under section 42A in relation to the holder of the licence may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (2) Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply to such a decision of the Tribunal. 46 Register of licences (1) A register of licences is to be kept at the office of the Tribunal. (2) The register is to contain details of all licences that are granted or transferred, including details concerning the conditions imposed on them by the Minister, and is also to contain details of all determinations made by the Minister with respect to licences and their conditions. (3) The register is to be kept available for inspection by members of the public, free of charge, during normal office hours. (4) Copies of entries in the register are to be made available to members of the public, at cost, during normal office hours. Part 4 Gas works Division 1 Powers and duties relating to gas works 47 Erection and placement of gas works (1) This section applies to work connected with the erection, installation, extension, alteration, maintenance and removal of gas works. (2) For the purposes of this Act, a network operator— (a) may carry out work to which this section applies, and (b) in particular, may carry out any such work on a public road. (3) Work to which this section applies is exempt from the requirement for an approval under the Local Government Act 1993 except in relation to buildings. (4) However, no such work (other than routine connections, repairs or maintenance work) may be carried out unless— (a) notice of the proposal to carry out the work has been given to the local council, and (b) the local council has been given a reasonable opportunity (being at least 40 days from the date on which the notice was given) to make submissions to the network operator in relation to the proposal, and (c) the network operator has given due consideration to any submissions so made. (5) Subsection (4) does not apply to the carrying out of any such work to cope with emergencies. 48 Damage to be made good (1) If a public road or public reserve is damaged by any work carried out by a network operator, the local council or roads authority may require the network operator to make good the damage without delay. (2) If the network operator fails to carry out appropriate work in accordance with any such requirement, the local council or roads authority may carry out the work itself. (3) The cost of carrying out the work may be recovered by the local council or roads authority in a court of competent jurisdiction as a debt owed to it by the network operator. 49 Altering position of conduits (1) A network operator may serve a written notice on a person if— (a) the network operator needs an alteration to be made in the position of a conduit owned by the person, and (b) the alteration would not permanently damage the conduit or adversely affect its operation. (2) The notice— (a) must specify the work to be carried out, and (b) must specify a reasonable time within which the work is to be carried out, and (c) must include an undertaking by the network operator to pay the reasonable cost of carrying out the work. (3) If the work is not carried out as required by the notice, the network operator may carry out the work in a manner that does not permanently damage the conduit or adversely affect its operation. (4) In this section, conduit means anything that is in or under a public road (or any other land on which no building or other structure is located) and is used for the conveyance of a substance, energy or signals. 50 Obstruction of gas works (1) This section applies if a network operator has reasonable cause to believe that— (a) a structure or thing situated in, on or near the operator's gas works is destroying, damaging or interfering with the gas works, or (b) there is a material risk that a structure or thing situated in, on or near the operator's gas works could destroy, cause damage to, or interfere with the gas works. (2) The network operator may— (a) give written notice to the person having control of the structure or thing requiring the person to modify or remove the structure or thing, or (b) in an emergency— (i) modify or remove the structure or thing itself, or (ii) move the gas works away from the structure or thing. (3) A notice under subsection (2)(a)— (a) must specify— (i) the work to be carried out, and (ii) a reasonable time within which the work must be carried out, and (b) may allow the person to elect to have the network operator move the gas works away from the structure or thing. (4) If a person given a notice under subsection (2)(a) fails to carry out the work in accordance with the notice, the network operator may carry out the work. (5) A network operator may apply for an injunction to prevent a structure or thing being placed in, on or near the operator's gas works. 50AA Responsibility to pay for removing obstruction of gas works (1) Work undertaken by the person having control of the structure or thing in accordance with a notice given under section 50(2)(a) must be carried out at the expense of the person. (2) If the network operator carries out work under section 50(4) or following an election under section 50(3)(b), the cost of carrying out the work and repairing any damage caused to the operator's gas works by the structure or thing may be recovered by the operator in a court of competent jurisdiction as a debt owing to the operator by the person in control of the structure or thing. (3) Despite subsection (2), a network operator may not recover costs associated with work carried out under section 50— (a) if the structure or thing was— (i) lawfully placed or constructed before the installation of the gas works, or (ii) placed or constructed with the consent of the network operator, or (b) if the work was undertaken due to a material risk that a structure or thing situated in, on or near the operator's gas works could destroy, cause damage to, or interfere with those works, and the structure or thing was lawfully placed or constructed— (i) after the installation of the gas works, and (ii) before the commencement of section 50(1)(b) as inserted by the Energy Legislation Amendment Act 2021. 50AB Responsibility to pay for repairs to gas works (1) A person issued with a notice under section 50(2)(a) must pay the reasonable costs incurred by the network operator to repair damage to the gas works caused by— (a) the structure or thing, and (b) the removal or modification of the structure or thing. (2) If a network operator takes action under section 50(2)(b) to modify or remove a structure or thing, the person having control of the structure or thing must pay the reasonable costs incurred by the network operator to repair damage to the gas works caused by the structure or thing. (3) Despite subsections (1) and (2), a network operator may not recover the cost of repairing damage to the operator's gas works— (a) if the structure or thing was— (i) lawfully placed or constructed before the installation of the gas works, or (ii) placed or constructed with the consent of the network operator, or (b) if the work is undertaken due to a material risk that a structure or thing situated in, on or near the operator's gas works could destroy, cause damage to, or interfere with those works, and the structure or thing was lawfully placed or constructed— (i) after the installation of the gas works, and (ii) before the commencement of section 50(1)(b) as inserted by the Energy Legislation Amendment Act 2021. (4) The costs payable under this section may be recovered by the operator in a court of competent jurisdiction as a debt owing to the operator by the person in control of the structure or thing. 50A Excavation work affecting gas works (1) This section applies if a network operator has reasonable cause to believe that the carrying out or proposed carrying out of excavation work in, on or near its gas works— (a) could destroy, damage or interfere with those works, or (b) could make those works become a potential risk to public safety. (2) In those circumstances, a network operator may serve a written notice on the person carrying out or proposing to carry out the excavation work requiring the person— (a) to modify the excavation work, or (b) not to carry out the excavation work, but only if the network operator is of the opinion that modifying the excavation work will not be effective in preventing the destruction or damage of, or interference with, the gas works concerned or in preventing those works becoming a potential risk to public safety. (3) A notice under subsection (2) must specify the excavation work that is to be modified or not carried out. (4) A network operator may recover the following costs in a court of competent jurisdiction as a debt owed to it by a person who carried out excavation work the subject of a notice under subsection (2)— (a) the costs incurred in replacing any of the network operator's gas works destroyed by the excavation work, (b) the costs incurred in repairing any damage to the network operator's gas works caused by the excavation work, (c) the costs incurred in remedying or mitigating any interference with the network operator's gas works caused by the excavation work. (5) A network operator may apply for an injunction to prevent the carrying out of excavation work in, on or near its gas works. (6) A network operator may take action under this section even if the person carrying out the excavation work owns or occupies the land in, on or over which the network operator's gas works are situated. 51 Charges for placement of gas works No annual or other periodic or special charge is payable by a network operator to a local council or roads authority in respect of any gas works located in a public reserve or public road or in respect of the space in a public reserve or public road that is occupied by any such works. 52 Ownership of gas works (1) A network operator is the owner of its gas works, whether or not the land in, on or over which they are situated is owned by the network operator. (2) A network operator's gas works are not to be taken in execution of any judgment against a person other than the network operator under any process of a court. (3) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900. 53 Interruption to gas supply for maintenance A network operator may interrupt the supply of gas to a customer, at such reasonable times as the network operator determines— (a) for the purpose of inspecting, testing or carrying out repairs or maintenance work on its gas works, or (b) for such other purpose as the network operator considers necessary for the safe and efficient operation of its gas works. 54 (Repealed) Division 2 Powers of entry 55 Powers of entry (1) A gas industry inspector may enter any premises for the purpose of exercising any function conferred or imposed on a network operator by or under this Act, including— (a) carrying out preliminary investigations in connection with the proposed installation or extension of gas works, or (b) installing, extending, maintaining, repairing or removing gas works, or (c) reading gas meters, or (d) checking if the network operator's conditions relating to tariffs and the use of gas are being complied with, or (e) ascertaining whether an offence against this Act or the regulations has been committed, or (f) monitoring any excavation work in accordance with regulations under section 64C, or (g) exercising any function conferred on the network operator by section 50 or 50A. (2) A government inspector may enter any premises for the purpose of ascertaining whether an offence against this Act or the regulations has been committed. (2A) (Repealed) (3) Except in emergencies, the power of entry may be exercised only during daylight hours. 56 Notice of entry (1) Before an inspector exercises a power of entry under this Division, the network operator must give the owner or occupier of the land written notice of the intention to enter the land. (2) The notice must specify the day on which the inspector intends to enter the land and must be given before that day. (3) This section does not require notice to be given— (a) if entry to the land is made with the consent of the owner or occupier of the land, or (b) if entry is required for the sole purpose of reading a gas meter, or (c) if entry is required in an emergency. 57 Use of force (1) Reasonable force may be used for the purpose of gaining entry to any land (other than such part of a building as is being used for residential purposes) under a power conferred by this Division, but only if authorised by the network operator in accordance with this section. (2) The authority— (a) must be in writing, and (b) must be given in respect of the particular entry concerned, and (c) must specify the circumstances that must exist before force may be used. 58 Notification of use of force or urgent entry (1) An inspector— (a) who uses force for the purpose of gaining entry to land, or (b) who enters land in an emergency without giving written notice to the owner or occupier of the land, must promptly advise the network operator of that fact. (2) The network operator must give notice of the entry to such persons or authorities as appear to the network operator to be appropriate in the circumstances. 59 Care to be taken (1) In the exercise of a power under this Division, an inspector must do as little damage as possible. (2) As far as practicable, entry onto fenced land is to be made through an existing opening in the enclosing fence or, if entry through an existing opening is not practicable, through a new opening. (3) Any new opening is to be properly closed when the need for entry ceases. (4) If, in the exercise of a power under this Division, any pit, trench, hole or bore is made, the network operator must, if the owner or occupier of the land so requires— (a) fence it and keep it securely fenced so long as it remains open or not sufficiently sloped down, and (b) without unnecessary delay, fill it up or level it or sufficiently slope it down. 60 Recovery of cost of entry and inspection If an inspector enters any land for the purpose of making an inspection and, as a result of the inspection, the network operator requires any work to be carried out on the land, the network operator may recover the reasonable costs of the entry and inspection from the owner or occupier of the land. 61 Compensation The network operator must pay compensation to the owner of any land in respect of which a power has been exercised under this Division for any loss or damage arising from the exercise of the power, but is not so liable to the extent to which the loss or damage arises from work done for the purposes of an inspection which reveals that there has been a contravention by the owner of any provision of this Act or the regulations. 62 Certificates of authority to enter land (1) A power of entry under this Division may not be exercised by an inspector unless the inspector— (a) is in possession of a certificate of authority issued by the network operator, and (b) produces the certificate when required to do so by the owner or occupier of the land. (2) The certificate of authority— (a) must state that it is issued under this Act, and (b) must give the name of the person to whom it is issued, and (c) must describe the nature of the powers conferred and the source of those powers, and (d) must state the date (if any) on which it expires, and (e) must describe the kind of land to which the power extends, and (f) must be under the seal of the network operator or must bear the signature of the principal officer of the network operator, of a prescribed officer of the network operator or of an officer belonging to a prescribed class of officers of the network operator. 63 Entry to residential premises A power of entry conferred by this Division is not exercisable in relation to such part of a building as is used for residential purposes except— (a) with the consent of the occupier of that part of the premises, or (b) for the sole purpose of reading a gas meter, or (c) under the authority conferred by a warrant of entry. 64 Warrants of entry (1) The network operator may apply to an authorised officer for a warrant of entry if it is of the opinion that it is necessary for an inspector to enter and inspect any land (including any building used for residential purposes) for the purposes of this Act. (2) An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a warrant of entry authorising an inspector named in the warrant to enter and inspect the land for the purposes of this Act. (3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a warrant of entry under this section in the same way as it applies to a search warrant under that Act. (4) In this section— authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002. Part 4A Protection of underground gas pipelines 64A Definitions In this Part, designated information provider means— (a) Dial Before You Dig NSW/ACT Incorporated, or (b) if another person or body is prescribed by the regulations for the purposes of this definition, that other person or body. 64B Provision of information on underground gas pipelines by network operators (1) It is a condition of a distributor's licence that the distributor must— (a) be a member of the designated information provider, and (b) comply with any obligations imposed by that membership. (2) It is a condition of a reticulator's authorisation that the reticulator must— (a) be a member of the designated information provider, and (b) comply with any obligations imposed by that membership. (3) The regulations may make provision for or with respect to the provision of information by network operators in respect of underground gas pipelines, including (but not limited to) the provision of such information in connection with a request for information under section 64C. 64C Requirements in relation to carrying out of certain excavation work (1) A person must not commence to carry out excavation work to which this section applies, or authorise such excavation work to be commenced, unless the person has first— (a) contacted the designated information provider and requested information as to the location and type of any underground gas pipelines in the vicinity of the proposed work, and (b) complied with any reasonable procedures of the designated information provider as to the manner of contacting the designated information provider and the information to be provided by the person in connection with the person's request for information, and (c) allowed a reasonable period for the requested information to be provided. Maximum penalty—20 penalty units. (2) Subsection (1) does not require a person to whom that subsection applies to comply with the requirements of that subsection in relation to excavation work if another person to whom that subsection applies has already complied with those requirements in relation to that excavation work. (3) A person must not carry out excavation work to which this section applies, or authorise such excavation work to be carried out, unless the person ha