South Australia: Gas Act 1997 (SA)

South Australia Gas Act 1997 An Act to regulate the gas supply industry; to make provision for safety and technical standards for gas infrastructure, installations and fitting work; to repeal the Gas Act 1988; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Objects 4 Interpretation 5 Crown bound 6 Environment protection and other statutory requirements not affected Part 2—Administration Division A1—Essential Services Commission 6A Functions and powers of Commission Division 1—Technical Regulator 7 Technical Regulator 8 Functions of Technical Regulator 9 Delegation 10 Technical Regulator's power to require information 11 Obligation to preserve confidentiality 14 Annual report Division 2—Advisory committees 15 Consumer advisory committee 16 Technical advisory committee 17 Other advisory committees Part 3—Gas supply industry Division A1—Declaration as regulated industry 18B Declaration as regulated industry Division A2—Application of provisions 18C Application of provisions Division 1—Licensing of gas entities 19 Requirement for licence 20 Application for licence 21 Consideration of application 21A Licences may be held jointly 22 Authority conferred by licence 23 Term of licence 24 Licence fees and returns 25 Licence conditions 26 Licences authorising operation of distribution system 26A Licences authorising retailing 26B Licence conditions and national energy laws 27 Offence to contravene licence conditions 29 Variation of licence 30 Transfer of licence 30A Consultation with consumer bodies 30B Notice of licence decisions 31 Surrender of licence 32 Register of licences 32A Licence is not personal property for the purposes of Commonwealth Act Division 2—Price regulation 33 Price regulation by determination of Commission Division 3—Standard terms and conditions for retailing of gas 34 Standard terms and conditions for retailing of gas Division 3A—Standing contracts and default contracts 34A Standing contracts 34B Default contracts Division 4—Protection of property in gas infrastructure 35 Gas infrastructure does not merge with land 36 Seizure and dismantling of gas infrastructure Division 5—Temporary gas rationing 37 Temporary gas rationing 37A Minister's power to require information or documents 37AB Obligation to preserve confidentiality 37AC Regulations relating to gas rationing 37AD Prosecution for contravention of Division requires Minister's consent 37B Manner in which notices may be given 37C Minister's power to delegate Division 6—Suspension or cancellation of licences 38 Suspension or cancellation of licences Division 7—Commission's powers to take over operations 39 Power to take over operations 40 Appointment of operator Part 4—Gas entities' powers and duties Division 1—Gas officers 42 Appointment of gas officers 43 Conditions of appointment 44 Gas officer's identity card 45 Production of identity card Division 1A—General investigative powers of gas officers 45A General investigative powers of gas officers Division 2—Powers and duties relating to gas infrastructure 46 Acquisition of land 47 Power to carry out work on public land 48 Power to enter for purposes related to gas entity's infrastructure Division 3—Powers relating to gas installations 49 Entry to inspect etc gas installations 50 Entry to read meters etc 51 Entry to disconnect supply 52 Disconnection of supply if entry refused Division 4—Powers and duties in emergencies 53 Gas entity may cut off gas supply to avert danger 54 Emergency legislation not affected Part 5—Safety and technical issues 55 Responsibility of owner or operator of infrastructure or installation 55A Safety, reliability, maintenance and technical management plans 56 Certain gas fitting work 56A Design of gas installations 57 Power to require rectification etc in relation to infrastructure or installations 57A Prohibition of sale or use of unsafe components for infrastructure or installations 57B Public warning statements about unsafe gas installations, components, practices etc 57C Immunity from liability 58 Reporting of accidents etc Part 5A—Regulation of NERL retailers 59 Application of Part 59AA Interpretation 59A Compliance with certain code provisions under Essential Services Commission Act 2002 and requirements of regulations 59B Participation in ombudsman scheme 59C Compliance with customer concessions scheme and performance of community service obligations 59D NERL retailers to match available gas to customers' estimated aggregate demand 59E NERL retailers annual administration fee Part 6—Enforcement Division A1—Warning notices and assurances 61A Warning notices 61AB Assurances 61B Register of warning notices and assurances 61BA Offence to act contrary to assurance 61BB Enforcement orders in relation to assurances Division A2—Injunctions 61C Injunctions Division A3—Enforcement notices 61D Enforcement notices Division 1—Appointment of authorised officers 62 Appointment of authorised officers 63 Conditions of appointment 64 Authorised officer's identity card 65 Production of identity card Division 2—Authorised officers' powers 66 Power of entry 67 General investigative powers of authorised officers 68 Disconnection of gas supply 69 Power to make infrastructure or installation safe 70 Power to require information or documents Division 3—Related matters 70A Self‑incrimination Part 7—Reviews 71 Review of decisions by Commission or Technical Regulator 72 Review by Tribunal 73 Minister's power to intervene Part 8—Miscellaneous 77 Power of exemption 77A Register of exemptions 78 Obligation to comply with conditions of exemption 78A Delegation by Minister 78B Gas infrastructure and liability to council rates 79 Application and issue of warrant 80 Urgent situations 81 Unlawful interference with distribution system or gas installation 82 Unlawful abstraction or diversion of gas 83 Notice of work that may affect gas infrastructure 84 Impersonation of officials etc 85 Obstruction 86 False or misleading information 87 Statutory declarations 87A Offences 88 General defence 89 Offences by bodies corporate 89A Imputing conduct to bodies corporate 90 Continuing offences 91 Order for payment of profit from contravention 91A Energy productivity shortfalls 93 Evidence 94 Service 95 Regulations Schedule 1—Repeal and transitional provisions 1 Repeal of Gas Act 1988 2 Transitional provision—licensed supplier of reticulated gas under repealed Act Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Gas Act 1997. 3—Objects The objects of this Act are— (a) to promote efficiency and competition in the gas supply industry; and (b) to promote the establishment and maintenance of a safe and efficient system of gas distribution and supply; and (c) to establish and enforce proper standards of safety, reliability and quality in the gas supply industry; and (d) to establish and enforce proper safety and technical standards for gas installations and appliances (including such standards relating to the design of gas installations); and (e) to protect the interests of consumers of gas. 4—Interpretation (1) In this Act, unless the contrary intention appears— annual gas consumption level means a level of consumption of gas determined in accordance with the regulations (and the regulations may, for that purpose, make provision for the estimation or agreement of the level in specified circumstances); authorised officer means a person appointed under Part 6 as an authorised officer; Commission means the Essential Services Commission established under the Essential Services Commission Act 2002; condition includes a limitation or restriction; contravention includes a failure to comply; council means a council within the meaning of the Local Government Act 1999; customer means a person who has a supply of gas available from a distribution system for consumption by that person, and includes— (a) the occupier for the time being of a place to which gas is supplied by a distribution system; and (b) where the context requires, a person seeking a supply of gas from a distribution system; and (c) a person of a class declared by regulation to be customers; disconnect a gas supply includes a procedure to interrupt or discontinue the gas supply to a customer; distribution system means the whole or a part of a system of pipes and equipment for use for, or in connection with, the distribution and supply of gas to persons for consumption, but does not include— (a) a transmission pipeline (other than a pipeline declared by the regulations to be, or form part of, a distribution system); or (b) a system of pipes and equipment— (i) installed in a place for the conveyance and use of gas from a pressurised vessel situated in the place; and (ii) not extending to, or connected to pipes in, some other place in separate occupation; or (c) pipes or equipment declared by the regulations not to be, or form part of, a distribution system; gas means a covered gas (as defined by the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008) or any other fuel consisting of hydrocarbons or predominantly of hydrocarbons that is in a gaseous or vapour form when it is at the pressure and temperature of its normal pipeline transportation and utilisation conditions, but does not include anything declared by regulation not to be gas; gas appliance means an appliance that uses gas as a fuel, but does not include anything declared by regulation not to be a gas appliance; gas entity means a person licensed under Part 3, and includes (where the context requires) a person who has been licensed under that Part whose licence has been suspended or cancelled or has expired; gas infrastructure means any part of a distribution system owned or operated by a gas entity; gas installation means fixed pipes and any fixed gas appliances, and associated equipment (including flues), installed in a place for the conveyance, control, measurement or use of gas that is, is to be, or has been, supplied (whether by a distribution system or pressurised vessel) for consumption in the place, but does not include gas infrastructure; gas officer means a person appointed under Part 4 as a gas officer; gas supply industry means— (a) the operation of a distribution system; or (b) the retailing of gas, including the operations of a NERL retailer in relation to the retailing of gas; or (c) without limiting paragraphs (a) or (b), any other operation for which a licence is required under Part 3; land includes— (a) an estate or interest in land (including an easement); or (b) a right or power over or in respect of land; National Energy Retail Rules means the National Energy Retail Rules as defined in the National Energy Retail Law (South Australia); National Gas Procedures (South Australia) means the National Gas Procedures under the National Gas Law that apply in, or in relation to, South Australia, as in force from time to time; National Gas Rules means the National Gas Rules as defined in the National Gas (South Australia) Act 2008; NERL retailer means— (a) a person who is the holder of a retailer authorisation under the National Energy Retail Law (South Australia); or (b) an exempt seller within the meaning of the National Energy Retail Law (South Australia); occupier of land or a place means a person who has, or is entitled to, possession or control of the land or place; operations includes activities; regulated entity means— (a) a gas entity; or (b) a NERL retailer; retailing of gas means the sale and supply of gas to a person for consumption (and not for resale) where the gas is to be conveyed (whether or not by the seller) to the person by a distribution system, but does not include an activity declared by regulation not to be retailing of gas; small customer means a customer classified by regulation as a small customer; Technical Regulator means the person holding the office of Technical Regulator under Part 2; transmission pipeline means a transmission pipeline within the meaning of the Petroleum Act 2000; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013. 5—Crown bound (1) This Act binds the Crown. (2) Nothing in this Act renders the Crown in any of its capacities liable to be prosecuted for an offence. (3) For the purposes of this section, a reference to the Crown extends— (a) not only to the Crown in right of this State but also (so far as the legislative power of the State permits) to the Crown in any other capacity; and (b) to any instrumentality of the Crown, and to an officer or employee of the Crown and any contractor or other person who carries out functions on behalf of the Crown. 6—Environment protection and other statutory requirements not affected This Act is in addition to and does not derogate from the provisions of the Environment Protection Act 1993 or any other Act. Part 2—Administration Division A1—Essential Services Commission 6A—Functions and powers of Commission (1) The Commission has (in addition to the Commission's functions and powers under the Essential Services Commission Act 2002)— (a) the licensing, price regulation and other functions and powers conferred by this Act; and (b) any other functions and powers conferred by regulation under this Act. (2) If regulated entities are required (whether by licence condition or otherwise) to participate in an ombudsman scheme, the Commission must, in performing licensing functions under this Act, liaise with the ombudsman appointed under the scheme. (3) Without limiting subsection (1), the Governor may, by regulation, confer functions and powers on the Commission, or vary the functions and powers of the Commission, as the Governor considers necessary or expedient for the purposes of the National Gas (South Australia) Act 2008, National Gas Rules, National Energy Retail Law (South Australia) and National Energy Retail Rules. (4) In performing functions under this Act, the Commission must (in addition to having regard to factors specified in this Act or the Essential Services Commission Act 2002) have regard to the provisions of the National Gas Rules and National Energy Retail Rules and the need to avoid duplication of, or inconsistency with, regulatory requirements under those Rules. Division 1—Technical Regulator 7—Technical Regulator (1) There is to be a Technical Regulator. (2) The Technical Regulator is to be appointed by the Minister. (3) The office of Technical Regulator may be held in conjunction with a position in the Public Service. (4) The Minister may assign an employee in the Public Service to act as the Technical Regulator— (a) during a vacancy in the office of Technical Regulator; or (b) when the Technical Regulator is absent from, or unable to discharge, official duties. 8—Functions of Technical Regulator (1) The Technical Regulator has the following functions: (b) the monitoring and regulation of safety and technical standards in the gas supply industry; and (c) the monitoring and regulation of safety and technical standards with respect to gas installations; and (da) the provision of advice in relation to safety or technical standards in the gas supply industry to the Commission at the Commission's request; and (e) any other functions prescribed by regulation or assigned to the Technical Regulator by or under this or any other Act. 9—Delegation (1) The Technical Regulator may delegate powers to a person or body of persons that is, in the Technical Regulator's opinion, competent to exercise the relevant powers. (2) A delegation under this section— (a) must be in writing; and (b) may be conditional or unconditional; and (c) is revocable at will; and (d) does not prevent the delegator from acting in any matter. 10—Technical Regulator's power to require information (1) The Technical Regulator may, by written notice, require a person to give the Technical Regulator, within a time stated in the notice (which must be reasonable), information in the person's possession that the Technical Regulator reasonably requires for the performance of the Technical Regulator's functions under this Act. (2) A person required to give information under this section must provide the information within the time stated in the notice. Maximum penalty: $20 000. (3) Subject to subsection (4), a natural person is not required to give information under this section if the information would tend to incriminate the person of an offence. (4) If a natural person is required to give information under this section relating to the safety of gas infrastructure, or a gas installation or appliance, and the information would tend to incriminate the person of an offence, the person must nevertheless give the information, but the information so given will not be admissible in evidence against the person in proceedings for an offence (other than an offence relating to the making of a false or misleading statement or declaration). 11—Obligation to preserve confidentiality (1) The Technical Regulator must preserve the confidentiality of information gained in the course of the performance of the Technical Regulator's functions under this Act (including information gained by an authorised officer under Part 6) that— (a) could affect the competitive position of a gas entity or other person; or (b) is commercially sensitive for some other reason. (2) Despite subsection (1), the Technical Regulator may disclose confidential information in the following circumstances: (a) as reasonably required in connection with the administration or enforcement of this Act (including to the Minister, the Commission and persons assisting the Commission), or the National Gas (South Australia) Law or as otherwise related to the performance of the Technical Regulator's functions (whether under this Act or any other Act); (b) to a person concerned in the administration or enforcement of another law of the State, or a law of the Commonwealth or another State or a Territory of the Commonwealth, for purposes related to the administration or operation of that other law; (c) to a government agency or instrumentality of this State, the Commonwealth or another State or Territory of the Commonwealth for purposes related to the performance of its functions (or to a person acting on behalf of such a government agency or instrumentality); (d) with the consent of the person who gave the information or to whom the information relates; (e) as required by a court or tribunal constituted by law; (f) as authorised by the Minister. (3) Information classified by the Technical Regulator as confidential is not liable to disclosure under the Freedom of Information Act 1991. 14—Annual report (1) The Technical Regulator must, within three months after the end of each financial year, deliver to the Minister a report on the Technical Regulator's operations during that financial year. (2) The Minister must cause a copy of the report to be laid before both Houses of Parliament within 12 sitting days after his or her receipt of the report. Division 2—Advisory committees 15—Consumer advisory committee (1) The Commission must establish an advisory committee comprising representatives of consumers (the consumer advisory committee)— (a) to provide advice to the Commission in relation to the performance of the Commission's functions under the Act; and (b) to provide advice to the Commission, either on its own initiative or at the request of the Commission, on any other matter relating to the gas supply industry. (2) Despite subsection (1), the consumer advisory committee will, if the Commission so determines, be the same committee as the committee of that name established under Division 4 of Part 2 of the Electricity Act 1996 and have the functions referred to in subsection (1) in addition to its functions under that Division. 16—Technical advisory committee (1) The Technical Regulator must establish an advisory committee (the technical advisory committee) including representatives of— (a) gas entities; and (b) contractor and employee associations involved in the gas supply industry; and (c) local government, to provide advice to the Technical Regulator, either on its own initiative or at the request of the Technical Regulator, on any matter relating to the functions of the Technical Regulator. (2) The technical advisory committee is the same committee as the committee of that name established under Part 2 Division 4 of the Electricity Act 1996 and has the functions referred to in subsection (1) in addition to its functions under that Division. 17—Other advisory committees The Minister, the Commission or the Technical Regulator may establish other advisory committees to provide advice on specified aspects of the administration of this Act. Part 3—Gas supply industry Division A1—Declaration as regulated industry 18B—Declaration as regulated industry The gas supply industry is declared to be a regulated industry for the purposes of the Essential Services Commission Act 2002. Division A2—Application of provisions 18C—Application of provisions Divisions 1, 3, 3B and 6 do not apply to a NERL retailer. Division 1—Licensing of gas entities 19—Requirement for licence A person must not carry on— (a) the operation of a distribution system; or (b) the retailing of gas; or (c) any other operation for which a licence is required by the regulations, unless the person holds a licence under this Part authorising the relevant operation. Maximum penalty: $1 000 000. 20—Application for licence (1) An application for the issue of a licence must— (a) be made to the Commission in a form approved by the Commission; and (b) contain the information specified in the form. (2) The applicant must pay to the Commission an application fee fixed by the Minister of an amount that the Minister considers appropriate to meet the reasonable costs of determining the application. (3) The Commission may, as the Commission considers appropriate, accept a single application from an applicant in respect of different operations of the applicant or operations of the applicant at different locations or may require separate applications. (4) The applicant must give the Commission further relevant information requested by the Commission. 21—Consideration of application (1) The Commission must consider an application for the issue of a licence and may, subject to this Division, issue or refuse to issue the licence. (2) The Commission must have regard to the general factors specified in Part 2 of the Essential Services Commission Act 2002 and, subject to this section, may only issue a licence if satisfied that— (a) the applicant is a suitable person to hold the licence; and (b) in the case of a licence authorising the operation of a distribution system—the system has (or the proposed system will have) the necessary capacity for distributing gas safely; and (c) in the case of a licence authorising retailing of gas—the applicant will be able to meet reasonably foreseeable obligations under contracts for the sale of gas; and (d) in the case of a licence authorising other operations for which a licence is required under the regulations—the applicant meets any special requirements imposed by the regulations for the holding of the licence; and (e) in the case of a licence of any class—the grant of the licence would be consistent with criteria (if any) prescribed by regulation for a licence of the relevant class. (3) In deciding whether an applicant is a suitable person to hold a licence, the Commission may consider— (a) the applicant's previous commercial and other dealings and the standard of honesty and integrity shown in those dealings; and (b) the financial, technical and human resources available to the applicant; and (c) the officers and, if applicable, major shareholders of the applicant and their previous commercial and other dealings and the standard of honesty and integrity shown in those dealings (including breaches of statutory and other legal obligations); and (d) other matters prescribed by regulation. (4) If— (a) a person carries on or proposes to carry on operations for which a licence is required as agent of another person; and (b) the agent makes application for the issue of such a licence on the agent's own behalf and on behalf of the principal; and (c) the Commission is satisfied that the criteria for the issue of the licence are met in relation to the agent, the Commission may, at the Commission's discretion, dispense with the requirement that the Commission be satisfied that the criteria are met in relation to the principal and issue the licence to the agent and the principal to be held by them jointly. 21A—Licences may be held jointly (1) A licence may be held jointly by two or more persons. (2) If a licence is held jointly by two or more persons, those persons are jointly and severally liable to meet requirements imposed under this Act or the Essential Services Commission Act 2002. 22—Authority conferred by licence (1) A licence authorises the person named in the licence to carry on operations in accordance with the terms and conditions of the licence. (2) The operations authorised by a licence need not be all of the same character or at the same location but may consist of a combination of different operations or operations at different locations. 23—Term of licence A licence may be issued for an indefinite period or for a term specified in the licence. 24—Licence fees and returns (1) A person is not entitled to the issue of a licence unless the person first pays to the Commission the relevant annual licence fee, or the first instalment of the relevant annual licence fee, as the case may require. (2) The holder of a licence issued for a term of two years or more must— (a) in each year lodge with the Commission, before the date prescribed for that purpose, an annual return containing the information required by the Commission by condition of the licence or by written notice; and (b) in each year (other than a year in which the licence is due to expire) pay to the Commission, before the date prescribed for that purpose, the relevant annual licence fee, or the first instalment of the relevant annual licence fee, as the case may require. (3) The annual licence fee for a licence is the fee fixed, from time to time, by the Minister in respect of that licence as an amount that the Minister considers to be a reasonable contribution towards administrative costs. (4) The annual licence fee may, if the Commission so determines, be paid in equal instalments at intervals fixed by the Commission. (7) If the holder of a licence fails to lodge the annual return or pay the annual licence fee (or an instalment of the annual licence fee) in accordance with this section, the Commission may, by written notice, require the holder to make good the default and, in addition, to pay to the Commission the amount prescribed as a penalty for default. (8) An annual licence fee (including any instalment of an annual licence fee or any penalty for default) payable under this section is recoverable as a debt due to the Crown. (9) In this section— administrative costs means— (a) the costs of administration of this Act; and (b) any costs of administration of the Essential Services Commission Act 2002 relating to the gas supply industry; and (c) the costs of administration of the Gas Pipelines Access (South Australia) Act 1997; and (d) other costs prescribed by regulation; holder of a licence includes the holder of a licence that has been suspended. 25—Licence conditions (1) The Commission must make a licence subject to conditions determined by the Commission— (a) requiring compliance with applicable codes or rules made under the Essential Services Commission Act 2002 as in force from time to time; and (b) requiring compliance with specified technical or safety requirements or standards; and (c) relating to the gas entity's financial or other capacity to continue operations under the licence; and (d) requiring the gas entity to have all or part of the operations authorised by the licence audited and to report the results of the audit to the Commission; and (e) requiring the gas entity to notify the Commission about changes to officers and, if applicable, major shareholders of the entity; and (f) requiring the gas entity to provide, in the manner and form determined by the Commission, such other information as the Commission may from time to time require; and (g) requiring the gas entity to comply with the requirements of any scheme approved and funded by the Minister for the provision by the State of customer concessions or the performance of community service obligations by gas entities. (2) The Commission must make a licence subject to further conditions that the Commission is required by regulation to impose on the issue of such a licence. (3) The Commission may make a licence subject to further conditions considered appropriate by the Commission. (4) The Commission must provide to the Minister any information that the Minister requires for the purposes of the administration of a scheme for the provision by the State of customer concessions, or the performance of community service obligations, relating to the sale or supply of gas. 26—Licences authorising operation of distribution system (1) The Commission must make a licence authorising the operation of a distribution system subject to conditions determined by the Commission— (a) requiring compliance with the relevant parts of the National Gas Procedures (South Australia); and (b) requiring the gas entity— (i) to prepare, maintain and periodically revise a safety, reliability, maintenance and technical management plan dealing with matters prescribed by regulation; and (ii) to obtain the approval of the Technical Regulator— (A) to the plan (prior to the commencement of the operation of the distribution system to which the plan relates); and (B) to any revision of the plan; and (iii) to comply with the plan as approved from time to time; and (iv) to audit from time to time the entity's compliance with the plans and report the results of those audits to the Technical Regulator; and (c) requiring the gas entity to maintain specified accounting records and to prepare accounts according to specified principles; and (d) requiring the gas entity to participate in an ombudsman scheme— (i) that applies to the gas supply industry and to other regulated industries (within the meaning of the Essential Services Commission Act 2002) prescribed by regulation; and (ii) the terms and conditions of which are approved by the Commission; and (e) requiring the gas entity to monitor and report as required by the Commission on indicators of service performance determined by the Commission; and (f) requiring the gas entity to comply with code provisions as in force from time to time (which the Commission must make under the Essential Services Commission Act 2002) limiting the grounds on which the supply of gas to customers may be disconnected and prescribing the process to be followed before the supply of gas is disconnected; and (g) requiring a specified process to be followed to resolve disputes between the gas entity and customers as to the supply of gas. (2) This section does not limit the matters that may be dealt with by terms or conditions of a licence authorising the operation of a distribution system. 26A—Licences authorising retailing (2) The Commission must make a licence authorising the retailing of gas subject to conditions determined by the Commission— (a) requiring compliance with the relevant parts of the National Gas Procedures (South Australia); and (b) if the gas entity sells gas to customers of a prescribed class, requiring the entity to maintain specified accounting records and to prepare accounts according to specified principles; and (c) requiring the gas entity to establish customer consultation processes of a specified kind; and (d) requiring the gas entity to comply with code provisions as in force from time to time (which the Commission must make under the Essential Services Commission Act 2002 on or before the prescribed date) relating to the provision of pricing information to enable small customers to compare competing offers in the retailing of gas; and (da) requiring the gas entity to include (in a print size and form prescribed by regulation) in each account for gas charges sent to a small customer information prescribed by regulation, including information relating to— (i) the customer's gas consumption during the preceding 12 months; and (ii) the entity's daily charges for gas during the period to which the account relates; and (iii) obtaining advice through the Commission about reducing gas consumption and about gas consumer choices; and (iv) greenhouse gas emissions associated with the customer's gas consumption; and (e) requiring the gas entity to comply with code provisions as in force from time to time (which the Commission must make under the Essential Services Commission Act 2002) relating to standard contractual terms and conditions to apply to the sale or supply of gas to small customers or customers of a prescribed class; and (f) requiring the gas entity to comply with code provisions as in force from time to time (which the Commission must make under the Essential Services Commission Act 2002) imposing minimum standards of service for customers that take into account relevant national benchmarks developed from time to time, and requiring the entity to monitor and report on levels of compliance with those minimum standards; and (g) requiring the gas entity to comply with code provisions as in force from time to time (which the Commission must make under the Essential Services Commission Act 2002) limiting the grounds on which the supply of gas to customers may be discontinued or disconnected and prescribing the process to be followed before the supply of gas is discontinued or disconnected; and (h) requiring a specified process to be followed to resolve disputes between the gas entity and customers as to the sale or supply of gas; and (i) if the gas entity sells gas to customers with an annual gas consumption level of less than the level prescribed, requiring the entity to participate in an ombudsman scheme— (i) that applies to the gas supply industry and to other regulated industries (within the meaning of the Essential Services Commission Act 2002) prescribed by regulation; and (ii) the terms and conditions of which are approved by the Commission. (3) This section does not limit the matters that may be dealt with by terms or conditions of a licence authorising the retailing of gas. 26B—Licence conditions and national energy laws Despite the preceding provisions of this Part, the Commission is not to impose a condition on a licence if the Commission is satisfied that the condition would duplicate, or be inconsistent with, regulatory requirements under the National Gas (South Australia) Act 2008, National Gas Rules, National Energy Retail Law (South Australia) or National Energy Retail Rules. 27—Offence to contravene licence conditions (1) A gas entity must not contravene a condition of its licence. Maximum penalty: $1 000 000. (2) An offence against subsection (1) may be prosecuted as an indictable offence or a summary offence at the discretion of the prosecutor but, if prosecuted as a summary offence, the maximum penalty that may be imposed is a fine not exceeding $20 000. 29—Variation of licence (1) The Commission may vary the terms or conditions of a gas entity's licence by written notice to the entity. (2) A variation may only be made— (a) on application by the gas entity or with the gas entity's agreement; or (b) after giving the gas entity reasonable notice of the proposed variation and allowing the entity a reasonable opportunity to make representations about the proposed variation. 30—Transfer of licence (1) A licence may be transferred with the Commission's agreement. (2) The Commission may impose conditions on the transfer of a licence, or vary the terms and conditions of the licence on its transfer. (3) The Commission must not agree to the transfer of a licence if the transferee would not be entitled to the issue of the licence. (4) An application for agreement to the transfer of a licence must— (a) be made by the transferor with the consent of the transferee to the Commission in a form approved by the Commission; and (b) contain the information specified in the form. (5) The applicant must pay to the Commission an application fee fixed by the Minister of an amount that the Minister considers appropriate to meet the reasonable costs of determining the application. (6) The applicant must give the Commission further relevant information requested by the Commission. 30A—Consultation with consumer bodies The Commission may, before issuing a licence, agreeing to the transfer of a licence or determining or varying conditions of a licence, consult with and have regard to the advice of— (a) the Commissioner for Consumer Affairs; and (b) the consumer advisory committee under Part 2. 30B—Notice of licence decisions (1) The Commission must give an applicant for a licence, or for agreement to the transfer of a licence, written notice of the Commission's decision on the application. (2) The Commission must give the holder of a licence written notice of any decision by the Commission affecting the terms or conditions of the licence. 31—Surrender of licence (1) A gas entity may, by written notice given to the Commission, surrender its licence. (2) The notice must be given to the Commission at least six months before the surrender is to take effect or, if the licence requires a longer period of notice, as required by the licence. (3) The Commission may, by agreement with the gas entity, shorten the required period of notice. 32—Register of licences (1) The Commission must keep a register of the licences currently held by gas entities under this Act. (2) The register must include— (a) the terms and conditions of each licence; and (b) other information required under the regulations. (3) A person may, without payment of a fee, inspect the Register. 32A—Licence is not personal property for the purposes of Commonwealth Act A licence under this Part is not personal property for the purposes of the Personal Property Securities Act 2009 of the Commonwealth. Division 2—Price regulation 33—Price regulation by determination of Commission (1) The Commission may make a determination under the Essential Services Commission Act 2002 regulating prices, conditions relating to prices and price-fixing factors for— (a) the sale and supply of gas to small customers or customers of a prescribed class; (d) the sale and supply of gas by a gas entity to customers of another gas entity in accordance with a condition of the entity's licence imposed under Division 3B; (e) other goods and services in the gas supply industry specified by the Minister by notice in the Gazette. (2) Despite section 7 of the Essential Services Commission Act 2002, the Minister may, by notice published in the Gazette, direct the Commission about— (a) factors to be taken into account by the Commission in making a determination in addition to those that the Commission is required by the Essential Services Commission Act 2002 to take into account; and (b) the distributive effect as between classes of customers that a determination of a kind referred to in subsection (1)(a) may have; and (c) the period over which a determination of a kind referred to in subsection (1)(a) will allow cost recovery for costs incurred by gas entities in preparing for full competition in the gas supply industry. (3) The Minister may, by further notice in the Gazette, vary or revoke a notice published by the Minister under this section. (4) Despite the provisions of the Essential Services Commission Act 2002, the operation of a determination of a kind referred to in subsection (1)(a) is not to be stayed pending the determination of an application for review under Part 6 of that Act. (5) The Governor may, by proclamation, fix a day on which subsection (2) expires. Division 3—Standard terms and conditions for retailing of gas 34—Standard terms and conditions for retailing of gas (1) A gas entity may, from time to time, fix standard terms and conditions governing the sale and supply of gas by the entity to small customers or customers of a prescribed class. (2) A gas entity must publish in the Gazette a notice setting out any standard terms and conditions fixed by the entity. (2a) A gas entity must, when it publishes a notice in the Gazette under subsection (2), also publish a notice in a newspaper circulating generally in the State describing the general nature of the standard terms and conditions and advising where a person may read or obtain a copy of the standard terms and conditions. (3) Standard terms and conditions fixed under this section— (a) must comply with the conditions of the gas entity's licence; and (b) must not fix prices that exceed maximum prices fixed under this Act; and (c) come into force on the day specified by the gas entity in the notice of the standard terms and conditions published in the Gazette under this section, being a day not earlier than the day on which the notice is published; and (d) when in force are contractually binding on the gas entity and the class of customers to which the terms and conditions are expressed to apply. (4) Subject to the conditions of a gas entity's licence, a standard term or condition fixed under this section may be modified or excluded by express agreement between the entity and a customer of the entity. (5) A gas entity that has fixed standard terms and conditions under this section must— (a) supply a copy of the standard terms and conditions, without charge, on request made to the entity at a place approved by the Commission; and (b) publish the standard terms and conditions on a website maintained by the entity. Maximum penalty: $2 500. Division 3A—Standing contracts and default contracts 34A—Standing contracts (1) This section applies to a gas entity holding a licence authorising the retailing of gas that is declared by the Governor under this section to be a gas entity to which this section applies. (2) It is a condition of the licence of a gas entity to which this section applies that the entity must, at the request of a small customer or customer of a prescribed class, agree to sell and supply gas to the customer at the entity's standing contract price and subject to the entity's standing contract terms and conditions. (4) An entity is not required to sell and supply gas to a customer in compliance with the condition imposed under subsection (2) if the entity is entitled in accordance with the entity's standing contract terms and conditions to refuse to sell and supply gas to the customer. (4a) The following provisions apply in relation to the fixing by the Commission of a standing contract price for an entity and class of customers for the purposes of this section: (a) the Commission may fix the price by a determination of a kind referred to in section 33(1)(a); (b) a determination, other than a determination under paragraph (f), must provide for the expiry of the determination at the end of a period of not less than 3 years specified in the determination; (c) a determination may provide for prices that vary at specified times according to a formula specified in the determination; (d) unless the Commission determines that special circumstances exist— (i) a determination may not be made to take effect before the expiry date of the last preceding determination made by the Commission in accordance with this subsection; (ii) a determination may only be made if the entity has made a submission to the Commission stating the price that the entity proposes be fixed by the Commission as the entity's standing contract price, and the entity's justification for the price, not less than 6 months and not more than 9 months before the making of the determination; (iii) the Commission must, before making a determination, have conducted an inquiry under Part 7 of the Essential Services Commission Act 2002 into the question of the appropriate price to be fixed as the standing contract price; (e) a submission under paragraph (d) must comply with any requirements as to the form and content of such submissions imposed by the Commission by written notice served on the entity; (f) if the Commission has determined that special circumstances exist—the Commission may make a determination that takes effect as a variation of the existing determination (with effect for the balance of the term of the existing determination (unless another variation is subsequently made)). (5) The Governor may, by proclamation— (a) declare that this section applies to a specified gas entity; and (b) vary or revoke such a declaration. (6) In this section— standing contract price, in relation to an entity and a customer, means— (a) the price fixed by the Commission in accordance with subsection (4a) as the entity's standing contract price for a class of customers to which the customer belongs; or (b) if there is no price for the time being fixed by the Commission as the entity's standard contract price in accordance with subsection (4a)—the price fixed under this Act as at 31 December 2002 for the sale and supply of gas to a class of customers to which the customer belongs; standing contract terms and conditions, in relation to a gas entity, means terms and conditions that have been published by the gas entity under section 34 as the entity's standing contract terms and conditions. (7) The Governor may, by proclamation, fix a day on which this section expires. 34B—Default contracts (1) This section applies to a gas entity holding a licence authorising the retailing of gas that sells gas to one or more small customers in South Australia. (2) It is a condition of the gas entity's licence that the entity must, if the entity becomes bound, in accordance with the regulations, to sell and supply gas to a small customer under a default contract arrangement for a period specified in the regulations— (a) give the customer a written notice in accordance with the regulations; and (b) sell and supply gas to the customer at the entity's default contract price and subject to the entity's default contract terms and conditions for that period. (3) In this section— default contract price, in relation to a gas entity and a customer, means whichever of the following is the price last fixed: (a) the price last fixed under this Act for the sale and supply of gas to a class of customers to which the customer belongs; (b) a price fixed by the entity as the entity's default contract price for a class of customers to which the customer belongs by notice published in the Gazette and in a newspaper circulating generally in the State, where— (i) the price was fixed by the notice with effect from the end of the prescribed period from the date of publication of the notice; and (ii) the notice contained a statement of the entity's justification for the price; and (iii) the Commission did not, within the prescribed period, fix the entity's default contract price as referred to in paragraph (c); (c) a price fixed by the Commission as the entity's default contract price for a class of customers to which the customer belongs by a determination of a kind referred to in section 33(1)(a); default contract terms and conditions means terms and conditions that have been published by the gas entity under section 34 as the entity's default contract terms and conditions. Division 4—Protection of property in gas infrastructure 35—Gas infrastructure does not merge with land In the absence of agreement in writing to the contrary, the ownership of a pipe or equipment is not affected by the fact it has been laid or installed as gas infrastructure in or under land. 36—Seizure and dismantling of gas infrastructure (1) Gas infrastructure cannot be seized and dismantled in execution of a judgment. (2) This section does not prevent the sale of a distribution system as a going concern in execution of a judgment. Division 5—Temporary gas rationing 37—Temporary gas rationing (1) If for any reason the volume of gas available for supply through a distribution system is, in the opinion of the Minister, insufficient or likely to become insufficient to meet the requirements of customers who draw gas from that system— (a) the Minister may give directions to— (i) the gas entity or other body by which the system, or part of the system, is operated; or (ii) a person who sells gas by retail or otherwise (whether or not the person is required to hold a licence under this Act), to ensure the most efficient and appropriate use of the available gas; and (b) the Minister may, by notice published in such manner as may be appropriate in the circumstances, direct customers, or specified customers, not to draw gas from the system except for the purposes (if any) allowed by the directions. (2) A direction under subsection (1)(a) may (without limitation) relate to the quantity of gas that may be supplied through a distribution system or to the quality of that gas. (2a) A direction under this section— (a) operates for a period (which may be defined by reference to specified days or to the happening of specified events) specified in the direction; and (b) may be varied or revoked (with effect at a specified time or on the happening of a specified event) by a subsequent direction under this section. (3) No civil liability arises from compliance with a direction under this section. (4) A person who fails to comply with a direction under this section is guilty of an offence. Maximum penalty: $250 000. (4a) An offence against subsection (4) may be prosecuted as an indictable offence or summary offence at the discretion of the prosecutor but, if prosecuted as a summary offence, the maximum penalty that may be imposed is a fine not exceeding $5 000. (5) In this section— distribution system has the meaning otherwise assigned to the term under this Act, and includes a transmission pipeline. 37A—Minister's power to require information or documents (1) The Minister may require a person— (a) to give the Minister within a specified time, or at specified times, specified information; or (b) to produce to the Minister within a specified time, or at specified times, specified documents, that the Minister reasonably requires to determine the sufficiency of gas supply, frame directions, plan for the future exercise of powers under this Division or otherwise administer or enforce this Division (or regulations made for the purposes of this Division). (1a) The power of the Minister to require information includes (without limitation) power to require a seller of gas affected by directions under this Division— (a) to conduct an audit of the seller's compliance with regulations made for the purposes of this Division; and (b) to report the results of the audit to the Minister. (2) A person required to give information under this section must provide the information or produce documents within the time, or at the times, specified by the Minister. Maximum penalty: $100 000. (3) If a person is required to give information or produce a document under this section and the information or document would tend to incriminate the person of an offence, the person must nevertheless give the information or produce the document, but— (a) if the person is a natural person, the information or document so given or produced will not be admissible in evidence against the person in proceedings for an offence (other than an offence relating to the making of a false or misleading statement or declaration); and (b) if the person is a body corporate— (i) the information or document so given or produced will not be admissible in evidence against a director of the body corporate in proceedings for an offence (other than an offence relating to the making of a false or misleading statement or declaration); and (ii) a director will not be guilty of an offence (other than an offence relating to the making of a false or misleading statement or declaration) as a result of the body corporate having been found guilty of an offence in proceedings in which the information or document so given or produced was admitted in evidence against the body corporate. 37AB—Obligation to preserve confidentiality (1) The Minister must preserve the confidentiality of information gained in the course of the performance of the Minister's functions under this Division (or regulations made for the purposes of this Division), including information gained by an authorised officer under Part 6, that— (a) could affect the competitive position of a gas entity or other person; or (b) is commercially sensitive for some other reason. (2) Subsection (1) does not apply to— (a) the disclosure of information between persons engaged in the administration of this Division; or (b) the disclosure of information as required for the purposes of legal proceedings related to this Division (or regulations made for the purposes of this Division). (3) Information classified by the Minister as confidential under this section is not liable to disclosure under the Freedom of Information Act 1991. 37AC—Regulations relating to gas rationing The power of the Governor to make regulations under this Act includes (without limitation) power to make regulations for the purposes of this Division— (a) making provision relating to contractual relations between customers and sellers of gas affected by directions under this Division; (b) requiring sellers of gas affected by directions under this Division to repay to customers any amounts that under applicable contractual terms were not payable by the customers; (c) prescribing a penalty not exceeding $10 000 for contravention of a regulation made for the purposes of this Division. 37AD—Prosecution for contravention of Division requires Minister's consent (1) A prosecution for a contravention of this Division (or regulations made for the purposes of this Division), may only be commenced with the consent of the Minister. (2) In any legal proceedings an apparently genuine certificate, purporting to be signed by the Minister, certifying that the Minister consented to the commencement of a prosecution referred to in subsection (1) will, in the absence of proof to the contrary, be accepted as proof of the matters so certified. 37B—Manner in which notices may be given Except as otherwise provided, a direction or requirement to be given to or made of a person or body under this Division may— (a) be given or made by notice in writing served on the person or body; or (b) if the Minister is of the opinion that good reason exists for doing so, be given or made by telephone, facsimile transmission, E-mail or some other form of electronic transmission (however, in such a case, a written record of the direction or requirement must be served on the person or body in accordance with section 94 as soon as is reasonably practicable). 37C—Minister's power to delegate (1) The Minister may delegate powers or functions under this Division— (a) to a particular person; or (b) to the person for the time being occupying a particular office or position. (2) A power or function delegated under this section may, if the instrument of delegation so provides, be further delegated. (3) A delegation— (a) may be absolute or conditional; and (b) does not derogate from the power of the delegator to act in a matter; and (c) is revocable at will by the delegator. (4) In any legal proceedings an apparently genuine certificate, purportedly signed by the Minister, containing particulars of a delegation under this section, will, in the absence of proof to the contrary, be accepted as proof that the delegation was made in accordance with the particulars. Division 6—Suspension or cancellation of licences 38—Suspension or cancellation of licences (1) The Commission may, if satisfied that— (a) the holder of a licence obtained the licence improperly; or (b) the holder of a licence has been guilty of a material contravention of a requirement imposed by or under this Act or any other Act in connection with the operations authorised by the licence; or (c) the holder of a licence has ceased to carry on operations authorised by the licence; or (d) there has been any act or default such that the holder of a licence would no longer be entitled to the issue of such a licence, suspend or cancel the licence with effect from a specified date. (2) A suspension under this section may be for a specified period, or until the fulfilment of specified conditions, or until further order of the Commission. (3) Before the Commission acts under this section, the Commission must— (a) notify the holder of the licence in writing of the proposed action specifying the reasons for the proposed action; and (b) allow the holder of the licence at least 14 days within which to make submissions to the Commission in relation to the proposed action. Division 7—Commission's powers to take over operations 39—Power to take over operations (1) If— (a) a gas entity contravenes this Act, or a gas entity's licence ceases, or is to cease, to be in force; and (b) it is necessary, in the Commission's opinion, to take over the entity's operations (or some of them) to ensure an adequate supply of gas to customers, the Governor may make a proclamation under this section. (2) Before a proclamation is made under this section, the Commission must give the gas entity a reasonable opportunity to make written representations giving reasons why the proclamation should not be made. (3) A proclamation under this section— (a) authorises the Commission to take over the gas entity's operations or a specified part of the gas entity's operations; and (b) may contain ancillary directions (and may, in particular, contain directions about how the costs of carrying on the operations, and revenue generated from the operations, are to be dealt with). (4) A direction under subsection (3)(b) operates to the exclusion of rights that are inconsistent with it. 40—Appointment of operator (1) When a proclamation is made under this Part, the Commission must appoint a suitable person (who may, but need not, be a gas entity) to take over the relevant operations on agreed terms and conditions. (2) A person appointed to take over a gas entity's operations is referred to in this section as the operator. (3) The gas entity must facilitate the take over of the relevant operations by the operator. (4) The operator may have access to the distribution system and other property of a gas entity for the purposes of carrying on the relevant operations. (5) A person must not obstruct the operator's access to property or the exercise by the operator of the operator's responsibilities under this Part. Maximum penalty: $250 000. (6) A person must comply with reasonable directions given by the operator in the exercise of the operator's responsibilities under this Part. Maximum penalty: $250 000. Part 4—Gas entities' powers and duties Division 1—Gas officers 42—Appointment of gas officers (1) A gas entity may, subject to conditions determined by the Minister, appoint a person to be a gas officer for the entity. (2) A gas officer may only exercise powers under this Act subject to the conditions of appointment and any directions given to the gas officer by the entity. 43—Conditions of appointment (1) A gas officer may be appointed for a stated term or for an indefinite term that continues while the officer holds a stated office or position. (2) A gas officer may be removed from office by the gas entity. 44—Gas officer's identity card (1) A gas entity must give each gas officer for the entity an identity card. (2) The identity card must be in a form approved by the Minister and must— (a) contain a photograph of the gas officer taken for the purpose; and (b) be signed by the gas officer; and (c) identify the gas officer as a gas officer for the relevant gas entity. (3) A person must, within 2 days after ceasing to be a gas officer, return the identity card to the gas entity. Maximum penalty: $250. 45—Production of identity card A gas officer must, before exercising a power in relation to another person, produce the officer's identity card for inspection by the other person. Division 1A—General investigative powers of gas officers 45A—General investigative powers of gas officers A gas officer may, in the course of exercising powers under this Part, take photographs, films or audio, video or other recordings as reasonably required in connection with the exercise of those powers. Division 2—Powers and duties relating to gas infrastructure 46—Acquisition of land (1) A gas entity may acquire land in accordance with the Land Acquisition Act 1969. (2) A gas entity may only acquire land by compulsory process under the Land Acquisition Act 1969 if the acquisition is authorised in writing by the Minister. 47—Power to carry out work on public land (1) Subject to this section, a gas entity may— (a) install gas infrastructure on public land; or (b) operate, maintain, repair, alter, add to, remove or replace gas infrastructure on public land; or (c) carry out other work on public land for the distribution or supply of gas. (2) Without limiting subsection (1), the gas entity may excavate public land for the purposes of carrying out work under subsection (1). (3) Subject to this section, a gas entity must— (a) give the authority responsible for the management of public land not less than seven days' notice of the entity's intention to carry out work on the land; and (b) secure the authority's agreement to the carrying out of the work. (4) An agreement under this section may contain conditions the authority responsible for management of the land considers appropriate in the public interest. (5) Prior notice and agreement are not required under subsection (3) for work of a kind prescribed by regulation for the purposes of this subsection. (6) Agreement is not required under subsection (3) for work of a kind prescribed by regulation for the purposes of this subsection. (7) If a dispute arises between a gas entity and the authority responsible for managing public land about whether work should be permitted under this section on the land or about the conditions on which work should be permitted on public land, either party to the dispute may refer the dispute to the Minister. (8) Subsection (7) does not apply to a dispute where the authority responsible for managing the public land is a Minister or a person or body to whom directions may be given by a Minister in relation to the matter in dispute. (9) If a dispute is referred to the Minister under this section, the Minister must— (a) allow the parties to the dispute the opportunity to make representations to the Minister on the questions at issue in the dispute; and (b) make a reasonable attempt to get the parties to agree to settlement of the dispute on agreed terms. (10) If the Minister cannot get the parties to agree, the Minister may make— (a) an order that the work is or is not permitted on the land; (b) if the Minister orders that the work is permitted, an order fixing the conditions on which the work is permitted, as the Minister thinks fit. (13) A gas entity must make good any damage caused by the exercise of powers under this section as soon as practicable or pay reasonable compensation for the damage. (14) This section does not derogate from the obligation to comply with the provisions of any other Act. (15) In this section— public land means land owned by the Crown or an instrumentality or agent of the Crown or by a council or other local government body. 48—Power to enter for purposes related to gas entity's infrastructure (1) A gas officer for a gas entity may, at any reasonable time— (a) enter and remain on land to carry out preliminary investigations in connection with the installation of gas infrastructure; or (b) enter and remain on land where the gas infrastructure of the entity is situated to inspect, operate, maintain, repair, alter, add to, remove or replace the infrastructure or to carry out work for the protection of the infrastructure or the protection of public safety. (2) Subject to