Western Australia: National Gas Access (WA)

Western Australia National Gas Access (WA) Act 2009 Western Australia National Gas Access (WA) Act 2009 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Terms used in this Act 1 4. Crown bound 1 5. Application to coastal waters 1 6. Extra‑territorial operation 1 6A. Extension to certain pipelines for hauling gas other than natural gas 1 6B. Interpretation Act 1984 does not apply 1 Part 2 — National Gas Access (Western Australia) Law and its regulations 7. National Gas Access (Western Australia) Law 1 7A. Amendments to Schedule to South Australian Act 1 7B. Regulations amending Schedule 1 consequentially 1 8. National Gas Access (Western Australia) Regulations 1 9. Terms used in National Gas Access (Western Australia) Law and its regulations 1 Part 3 — Regulations for the National Gas Access (Western Australia) Law 10. Making regulations 1 11. Regulations may deal with transitional matters 1 Part 4 — Cross vesting of functions and powers 12. Conferral of powers on Commonwealth Minister and Commonwealth bodies to act in this State 1 13. Conferral of powers on Ministers of other participating States and Territories to act in this State 1 14. Conferral of functions or powers on State bodies 1 Part 5 — General 15. Exemption from taxes 1 16. Actions in relation to cross boundary pipelines 1 17. Conferral of functions and powers on Commonwealth bodies 1 Part 6 — Other local provisions Division 1 — Economic Regulation Authority 18. Expertise of Director of Energy Safety to be used 1 Division 2 — Miscellaneous 19. Preservation of certain contracts relating to privatised DBNGP system 1 20. Transitional provisions for Kalgoorlie to Kambalda pipeline 1 21. Regulations 1 22. Review of Act 1 Part 7 — Various Acts amended Division 1 — Gas Pipelines Access (Western Australia) Act 1998 23. Act amended 1 24. Long title replaced 1 25. Preamble deleted 1 26. Section 1 amended 1 27. Sections 2 to 4 deleted 1 28. Section 5 amended 1 29. Sections 6 to 8 deleted 1 30. Parts 2 to 5 deleted 1 31. Part 6 heading replaced 1 Part 6 — Review board and arbitrator 32. Part 6 Division 1 deleted 1 33. Part 6 Division 2 heading replaced 1 Division 2 — Review board 34. Section 49 amended 1 35. Part 6 Division 2 Subdivision 2 heading replaced 1 Subdivision 2 — Western Australian Electricity Review Board established 36. Section 50 amended 1 37. Section 57 amended 1 38. Section 59 amended 1 39. Section 61 amended 1 40. Part 6 Division 3 Subdivision 2 heading amended 1 41. Section 62 amended 1 42. Section 73 amended 1 43. Section 74 amended 1 44. Section 76 amended 1 45. Section 77 amended 1 46. Section 81 amended 1 47. Section 82 amended 1 48. Section 87 deleted 1 49. Section 88 deleted 1 50. Parts 7 and 8 deleted 1 51. Schedules deleted 1 Division 2 — Economic Regulation Authority Act 2003 52. Act amended 1 53. Section 25 amended 1 54. Section 28 amended 1 55. Section 32 amended 1 Division 3 — Electricity Industry Act 2004 56. Act amended 1 57. Section 3 amended 1 58. Section 113 deleted 1 59. Section 125 amended 1 60. Section 130 amended 1 61. Section 133 amended 1 Division 4 — Energy Coordination Act 1994 62. Act amended 1 63. Section 11J deleted 1 64. Section 11M amended 1 65. Section 11V amended 1 66. Section 11ZAC amended 1 67. Schedule 1A amended 1 Division 5 — Other Acts amended 68. Constitution Acts Amendment Act 1899 amended 1 69. Financial Management Act 2006 amended 1 70. Freedom of Information Act 1992 amended 1 71. Parliamentary Commissioner Act 1971 amended 1 72. Petroleum Pipelines Act 1969 amended 1 Schedule 1 — Some modifications to National Gas Law as in Schedule to South Australian Act 1. Purpose of this Schedule 1 2. Section 1 modified 1 3. Section 2 modified 1 4. Sections 2A and 2B inserted 1 2A. Meaning of AER modified 1 2B. References to WA application Act 1 5. Chapter 1 Part 1A inserted 1 Part 1A — Postponement of Natural Gas Services Bulletin Board provisions 20A. Minister may fix day on which provisions apply 1 5A. Section 23A modified 1 6. Section 29 modified 1 7. Section 30 modified 1 7A. Section 30R deleted 1 7B. Section 42 modified 1 8. Chapter 2 Part 1A inserted 1 Part 1A — Functions and powers of WA arbitrator 68A. Manner in which WA arbitrator must perform or exercise certain functions or powers 1 9. Section 181A inserted 1 181A. Providing information for certain disputes 1 10. Section 231 modified 1 11. Section 240 modified 1 12. Section 290 modified 1 13. Section 294 replaced 1 294. Initial National Gas Rules for WA 1 13A. Section 294FC modified 1 14. Schedule 1 modified 1 15. Schedule 2 clause 27A inserted 1 27A. WA modifications of clause 27 1 16. Schedule 2 clause 34 modified 1 16A. Schedule 2 clause 47A modified 1 16B. Schedule 2 clause 47B modified 1 17. Schedule 2 clause 50 replaced 1 50. Attempts and incitement 1 17A. Schedule 2 clause 51 modified 1 18. Schedule 3 modified 1 Notes about National Gas Access (WA) Act 2009 Compilation table 1 Note — Western Australian National Gas Access Law text Chapter 1 — Preliminary Part 1 — Citation and interpretation 1. Citation 1 2. Definitions 1 2A. Meaning of AER modified 1 2B. References to WA application Act 1 3. Meaning of civil penalty provision 1 3A. Civil penalty amounts for breaches of civil penalty provisions 1 4. Meaning of conduct provision 1 5. Meaning of prospective user 1 6. Meaning of regulatory obligation or requirement 1 7. Meaning of regulatory payment 1 8. Meaning of service provider 1 9. Passive owners of scheme pipelines deemed to provide or intend to provide pipeline services 1 10. Things done by 1 service provider to be treated as being done by all of service provider group 1 11. Local agents of foreign service providers 1 12. Commissioning of a pipeline 1 13. Pipeline classification criterion 1 14. Jurisdictional determination criteria—cross boundary distribution pipelines 1 15. Pipeline coverage criteria 1 16. Form of regulation factors 1 17. Effect of separate and consolidated access arrangements in certain cases 1 18. Certain extensions to, or expansion of the capacity of, pipelines to be taken to be part of a covered pipeline 1 19. Expansions of and extensions to covered pipeline by which light regulation services are provided 1 19A. Related bodies corporate 1 20. Interpretation generally 1 Part 1A — Postponement of Natural Gas Services Bulletin Board provisions 20A. Minister may fix day on which provisions apply 1 Part 2 — Participating jurisdictions 21. Participating jurisdictions 1 22. Ministers of participating jurisdictions 1 Part 3 — National gas objective and principles Division 1 — National gas objective 23. National gas objective 1 23A. Regulations may prescribe matters for national gas objective 1 Division 2 — Revenue and pricing principles 24. Revenue and pricing principles 1 Division 3 — MCE policy principles 25. MCE statements of policy principles 1 Part 4 — Operation and effect of National Gas Rules 26. National Gas Rules to have force of law 1 Chapter 2 — Functions and powers of gas market regulatory entities Part 1 — Functions and powers of the Australian Energy Regulator Division 1 — General 27. Functions and powers of the AER 1 28. Manner in which AER must perform or exercise AER economic regulatory functions or powers 1 29. Delegations 1 30. Confidentiality 1 Division 1A—Rate of return instrument Subdivision 1—Preliminary 30A. Definitions 1 30B. Rate of return instrument has force of law 1 30C. Rate of return instrument is binding on AER and covered pipeline service providers 1 Subdivision 2—Requirement to make rate of return instrument 30D. AER to make rate of return instrument 1 30E. Content of rate of return instrument 1 Subdivision 3—Consultation requirements 30F. Process for making rate of return instrument 1 30G. Other matters AER must have regard to in making instrument 1 30H. Requirements before publishing draft instrument 1 30I. Consumer reference group 1 30J. Publication of draft instrument and other information 1 30K. Report about draft instrument by independent panel 1 30L. Publication of explanatory information 1 30M. Failure to comply does not affect validity 1 Subdivision 4—Publication, review and other matters 30N. Publication of rate of return instrument 1 30O. Commencement and duration of instrument 1 30P. Review and replacement of instrument 1 30Q. Application of instrument 1 Subdivision 5—Confidentiality of information 30S. Confidentiality 1 30T. Disclosure of information given in confidence 1 Division 2 — Search warrants 31. Definitions 1 32. Authorised person 1 33. Identity cards 1 34. Return of identity cards 1 35. Search warrant 1 36. Announcement of entry and details of warrant to be given to occupier or other person at premises 1 37. Immediate entry permitted in certain cases 1 38. Copies of seized documents 1 39. Retention and return of seized documents or things 1 40. Extension of period of retention of documents or things seized 1 41. Obstruction of persons authorised to enter 1 Division 3 — General information gathering powers 42. Power to obtain information and documents in relation to performance and exercise of functions and powers 1 Division 4 — Regulatory information notices and general regulatory information orders Subdivision 1 — Interpretation 43. Definitions 1 44. Meaning of contributing service 1 45. Meaning of general regulatory information order 1 46. Meaning of regulatory information notice 1 47. Division does not limit operation of information gathering powers under Division 3 1 Subdivision 2 — Serving and making of regulatory information instruments 48. Service and making of regulatory information instrument 1 49. Additional matters to be considered for related provider regulatory information instruments 1 50. AER must consult before publishing a general regulatory information order 1 51. Publication requirements for general regulatory information orders 1 52. Opportunity to be heard before regulatory information notice is served 1 Subdivision 3 — Form and content of regulatory information instruments 53. Form and content of regulatory information instrument 1 54. Further provision about the information that may be described in a regulatory information instrument 1 55. Further provision about manner in which information must be provided to AER or kept 1 Subdivision 4 — Compliance with regulatory information instruments 56. Compliance with regulatory information notice that is served 1 57. Compliance with general regulatory information order 1 58. Exemptions from compliance with general regulatory information order 1 59. Assumptions where there is non‑compliance with regulatory information instrument 1 Subdivision 5 — General 60. Providing to AER false and misleading information 1 61. Person cannot rely on duty of confidence to avoid compliance with regulatory information instrument 1 62. Legal professional privilege not affected 1 63. Protection against self‑incrimination 1 Division 5 — Service provider performance reports 64. Preparation of service provider performance reports 1 Division 6 — Miscellaneous matters 65. Consideration by the AER of submissions or comments made to it under this Law or the Rules 1 66. Use of information provided under a notice under Division 3 or a regulatory information instrument 1 67. AER to inform certain persons of decisions not to investigate breaches, institute proceedings or serve infringement notices 1 68. AER guidelines 1 Part 1A — Functions and powers of WA arbitrator 68A. Manner in which WA arbitrator must perform or exercise certain functions or powers 1 Part 2 — Functions and powers of the Australian Energy Market Commission Division 1 — General 69. Functions and powers of the AEMC 1 70. Delegations 1 71. Confidentiality 1 72. AEMC must have regard to national gas objective 1 72A. Targets statement for greenhouse gas emissions targets 1 73. AEMC must have regard to MCE statements of policy principles in relation to Rule making and reviews 1 Division 2 — Rule making functions and powers of the AEMC 74. Subject matter for National Gas Rules 1 75. Rules relating to MCE or Ministers of participating jurisdictions require MCE consent 1 76. AEMC must not make Rules that create criminal offences or impose civil penalties for breaches 1 77. Documents etc applied, adopted and incorporated by Rules to be publicly available 1 Division 3 — Committees, panels and working groups of the AEMC 78. Establishment of committees, panels and working groups 1 Division 4 — MCE directed reviews 79. MCE directions 1 80. Terms of reference 1 81. Notice of MCE directed review 1 82. Conduct of MCE directed review 1 Division 5 — Other reviews 83. Rule reviews by the AEMC 1 Division 6 — Miscellaneous matters 83A. Special information and transparency requirements relating to non‑scheme pipelines 1 84. AEMC must publish and make available up to date versions of Rules 1 85. Fees 1 86. Immunity from personal liability of AEMC officials 1 Part 3 — Functions and powers of Ministers of participating jurisdictions 87. Functions and powers of Minister of this participating jurisdiction under this Law 1 88. Functions and powers of Commonwealth Minister under this Law 1 Part 4 — Functions and powers of the NCC 89. Functions and powers of NCC under this Law 1 90. Confidentiality 1 Part 5 — Functions and powers of Tribunal 91. Functions and powers of Tribunal under this Law 1 Chapter 3 — Coverage and classification of pipelines Part 1 — Coverage of pipelines Division 1 — Coverage determinations 92. Application for recommendation that a pipeline be a covered pipeline 1 93. Application to be dealt with in accordance with the Rules 1 94. NCC may defer consideration of application in certain cases 1 95. NCC coverage recommendation 1 96. NCC must not make coverage recommendation if tender approval decision becomes irrevocable 1 97. Principles governing the making of a coverage recommendation 1 98. Initial classification decision to be made as part of recommendation 1 99. Relevant Minister's determination on application 1 100. Principles governing the making of a coverage determination or decision not to do so 1 101. Operation and effect of coverage determination 1 Division 2 — Coverage revocation determinations 102. Application for a determination that a pipeline no longer be a covered pipeline 1 103. Application to be dealt with in accordance with the Rules 1 104. NCC coverage revocation recommendation 1 105. Principles governing the making of a coverage revocation recommendation 1 106. Relevant Minister's determination on application 1 107. Principles governing the making of a coverage revocation determination or decision not to do so 1 108. Operation and effect of coverage revocation determination 1 Part 2 — Light regulation of covered pipeline services Division 1 — Making of light regulation determinations Subdivision 1 — Decisions when pipeline is not a covered pipeline 109. Application of Subdivision 1 110. NCC's decision on light regulation of pipeline services 1 Subdivision 2 — Decisions when pipeline is a covered pipeline 111. Application of Subdivision 1 112. Application 1 113. Application to be dealt with in accordance with the Rules 1 114. NCC's decision on light regulation of pipeline services 1 Subdivision 3 — Operation and effect of light regulation determinations 115. When light regulation determinations take effect 1 116. Submission of limited access arrangement for light regulation services 1 Division 2 — Revocation of light regulation determinations Subdivision 1 — On advice from service providers 117. Advice by service provider that light regulation services should cease to be light regulation services 1 Subdivision 2 — On application by persons other than service providers 118. Application (other than by service provider) for revocation of light regulation determinations 1 119. Decisions on applications made around time of applications for coverage revocation determinations 1 120. NCC decision on application where no application for a coverage revocation recommendation 1 121. Operation and effect of decision of NCC under this Division 1 Division 3 — Principles governing light regulation determinations 122. Principles governing the making or revoking of light regulation determinations 1 Division 4 — Revocation if coverage determination not made 123. Light regulation determination revoked if coverage determination not made 1 Division 5 — Effect of pipeline ceasing to be covered pipeline 124. Light regulation services cease to be such services on cessation of coverage of pipeline 1 Division 6 — AER reviews into designated pipelines 125. AER reviews 1 Part 3 — Coverage of pipelines the subject of tender process 126. Tender approval pipelines deemed to be covered pipelines 1 Part 4 — Coverage following approval of voluntary access arrangement 127. Certain pipelines become covered pipelines on approval of voluntary access arrangement 1 Part 5 — Reclassification of pipelines 128. Service provider may apply for reclassification of pipeline 1 129. Reclassification decision 1 130. Effect of reclassification decision 1 Chapter 4 — General requirements for provision of covered pipeline services Part 1 — General duties for provision of pipeline services by covered pipelines 131. Service provider must be legal entity of a specified kind to provide pipeline services by covered pipeline 1 132. Submission of full access arrangement or revisions to applicable full access arrangements 1 133. Preventing or hindering access 1 134. Supply and haulage of natural gas 1 135. Covered pipeline service provider must comply with queuing requirements 1 136. Covered pipeline service provider providing light regulation services must not price discriminate 1 Part 2 — Structural and operational separation requirements (ring fencing) Division 1 — Interpretation 137. Definitions 1 138. Meaning of marketing staff 1 Division 2 — Minimum ring fencing requirements 139. Carrying on of related businesses prohibited 1 140. Marketing staff and the taking part in related businesses 1 141. Accounts that must be prepared, maintained and kept 1 Division 3 — Additional ring fencing requirements 142. Division does not limit operation of Division 2 1 143. AER ring fencing determinations 1 144. AER to have regard to likely compliance costs of additional ring fencing requirements 1 145. Types of ring fencing requirements that may be specified in an AER ring fencing determination 1 Division 4 — AER ring fencing exemptions 146. Exemptions from minimum ring fencing requirements 1 Division 5 — Associate contracts 147. Service provider must not enter into or give effect to associate contracts that have anti‑competitive effect 1 148. Service provider must not enter into or give effect to associate contracts inconsistent with competitive parity rule 1 Chapter 5 — Greenfields pipeline incentives Part 1 — Interpretation 149. Definitions 1 150. International pipeline to be a transmission pipeline for purposes of Chapter 1 Part 2 — 15‑year no‑coverage determinations 151. Application for 15‑year no‑coverage determination for proposed pipeline 1 152. Application to be dealt with in accordance with the Rules 1 153. No‑coverage recommendation 1 154. Principles governing the making of a no‑coverage recommendation 1 155. Initial classification decision to be made as part of recommendation 1 156. Relevant Minister's determination on application 1 157. Principles governing the making of a 15‑year no‑coverage determination or decision not to do so 1 158. Effect of 15‑year no‑coverage determination 1 159. Consequences of Minister deciding against making 15‑year no‑coverage determination for international pipeline 1 Part 3 — Price regulation exemptions Division 1 — Application for price regulation exemption 160. Application for price regulation exemption 1 Division 2 — Recommendations by NCC 161. Application to be dealt with in accordance with the Rules 1 162. NCC's recommendation 1 163. General principle governing NCC's recommendation 1 Division 3 — Making and effect of price regulation exemption 164. Making of price regulation exemption 1 165. Principles governing the making of a price regulation exemption 1 166. Conditions applying to a price regulation exemption 1 167. Effect of price regulation exemption 1 Division 4 — Limited access arrangements 168. Limited access arrangements for pipeline services provided by international pipeline to which a price regulation exemption applies 1 Division 5 — Other matters 169. Other obligations to which service provider is subject 1 170. Service provider must not price discriminate in providing international pipeline services 1 Part 4 — Extended or modified application of greenfields pipeline incentive 171. Requirement for conformity between pipeline description and pipeline as constructed 1 172. Power of relevant Minister to amend pipeline description 1 Part 5 — Early termination of greenfields pipeline incentive 173. Greenfields pipeline incentive may lapse 1 174. Revocation by consent 1 175. Revocation for misrepresentation 1 176. Revocation for breach of condition to which a price regulation exemption is subject 1 177. Exhaustive provision for termination of greenfields pipeline incentive 1 Chapter 6 — Access disputes—scheme pipelines Part 1 — Interpretation and application 178. Definitions 1 179. Chapter does not limit how disputes about access may be raised or dealt with 1 180. No price or revenue regulation for access disputes relating to international pipeline services 1 Part 2 — Notification of access dispute 181. Notification of access dispute 1 181A. Providing information for certain disputes 1 182. Withdrawal of notification 1 183. Parties to an access dispute 1 Part 3 — Access determinations 184. Determination of access dispute 1 185. Dispute resolution body may require parties to mediate, conciliate or engage in an alternative dispute resolution process 1 186. Dispute resolution body may terminate access dispute in certain cases 1 187. No access determination if dispute resolution body considers there is genuine competition 1 188. Restrictions on access determinations 1 189. Access determination must give effect to applicable access arrangement 1 190. Access determinations and past contributions of capital to fund installations or the construction of new facilities 1 191. Rules may allow determination that varies applicable access arrangement for installation of a new facility 1 192. Access determinations need not require the provision of a pipeline service 1 193. Content of access determinations 1 Part 4 — Variation of access determinations 194. Variation of access determination 1 Part 5 — Compliance with access determinations 195. Compliance with access determination 1 Part 6 — Access dispute hearing procedure 196. Hearing to be in private 1 197. Right to representation 1 198. Procedure of dispute resolution body 1 199. Particular powers of dispute resolution body in a hearing 1 200. Disclosure of information 1 201. Power to take evidence on oath or affirmation 1 202. Failing to attend as a witness 1 203. Failing to answer questions etc 1 204. Intimidation etc 1 205. Party may request dispute resolution body to treat material as confidential 1 206. Costs 1 207. Outstanding costs are a debt due to party awarded the costs 1 Part 7 — Joint access dispute hearings 208. Definition 1 209. Joint dispute hearing 1 210. Consulting the parties 1 211. Constitution and procedure of dispute resolution body for joint dispute hearings 1 212. Record of proceedings etc 1 Part 8 — Miscellaneous matters 213. Correction of access determinations for clerical mistakes etc 1 214. Reservation of capacity during an access dispute 1 215. Subsequent service providers bound by access determinations 1 216. Regulations about the costs to be paid by parties to access dispute 1 Chapter 6A—Access disputes—non-scheme pipelines Part 1—Interpretation and application 216A. Definitions 1 216B. Meaning of prospective user 1 216C. Application of Chapter 1 216D. Application of this Chapter to disputes arising under Rules 1 216E. Chapter does not limit how disputes about access may be raised or dealt with 1 Part 2—Negotiation of access 216F. Access proposals 1 216G. Duty to negotiate in good faith 1 216H. Notification of access dispute 1 216I. Parties to an access dispute 1 Part 3—Reference of dispute to arbitration 216J. Reference of dispute 1 216K. Selection of arbitrator 1 216L. Determination of access dispute 1 216M. Principles to be taken into account 1 216N. Restrictions on access determinations 1 216O. Arbitrator's power to terminate arbitration 1 216P. Access seeker's right to terminate arbitration 1 Part 4—Compliance with access determinations 216Q. Compliance with access determinations 1 Part 5—Variation of access determinations 216R. Variation of access determinations 1 Part 6—Hearing procedures 216S. Hearing procedures 1 Part 7—Miscellaneous matters 216T. Correction of access determinations for clerical mistakes etc 1 216U. Reservation of capacity during an access dispute 1 216V. Costs of arbitration 1 Chapter 7 — The Natural Gas Services Bulletin Board Part 1 — The Bulletin Board Operator 217. The Bulletin Board operator 1 218. Obligation to establish and maintain the Natural Gas Services Bulletin Board 1 219. Other functions of the Bulletin Board operator 1 220. Powers of the Bulletin Board operator 1 221. Immunity of the Bulletin Board operator 1 222. Fees for services provided 1 Part 2 — Bulletin Board information 223. Obligation to give information to the Bulletin Board operator 1 224. Person cannot rely on duty of confidence to avoid compliance with obligation 1 225. Giving to Bulletin Board operator false and misleading information 1 226. Immunity of persons giving information to the Bulletin Board operator 1 Part 3 — Protection of information 227. Protection of information by the Bulletin Board operator 1 228. Protection of information by employees etc of the Bulletin Board operator 1 Chapter 8 — Proceedings under the National Gas Law Part 1 — Proceedings generally 229. Instituting civil proceedings under this Law 1 230. Time limit within which proceedings may be instituted 1 Part 2 — Proceedings for breaches of this Law, Regulations or the Rules 231. AER proceedings for breaches of this Law, Regulations or the Rules that are not offences 1 232. Proceedings for declaration that a person has breached a conduct provision 1 233. Actions for damages by persons for breach of conduct provision 1 Part 3 — Matters relating to breaches of this Law, the Regulations or the Rules 234. Matters for which there must be regard in determining amount of civil penalty 1 235. Breach of a civil penalty provision is not an offence 1 236. Breaches of civil penalty provisions involving continuing failure 1 237. Conduct in breach of more than 1 civil penalty provision 1 238. Persons involved in breach of civil penalty provision or conduct provision 1 239. Attempt to breach a civil penalty provision 1 240. Civil penalties payable to the Commonwealth 1 Part 4 — Judicial review of decisions under this Law, the Regulations and the Rules 241. Definition 1 242. Applications for judicial review of decisions of the AEMC 1 243. Applications for judicial review of decisions of the Bulletin Board operator 1 Part 5 — Merits review and other non‑judicial review Division 1 — Interpretation 244. Definitions 1 Division 3 — Tribunal review of AER information disclosure decisions under section 329 263. Application for review 1 264. Exclusion of public in certain cases 1 265. Determination in the review 1 266. Tribunal must be taken to have affirmed decision if decision not made within time 1 267. Assistance from the AER in certain cases 1 Division 4 — General 268. Costs in a review 1 269. Amount of costs 1 Part 6 — Enforcement of access determinations 271. Enforcement of access determinations 1 272. Consent injunctions 1 273. Interim injunctions 1 274. Factors relevant to granting a restraining injunction 1 275. Factors relevant to granting a mandatory injunction 1 276. Discharge or variation of injunction or other order 1 Part 7 — Infringement notices 277. Power to serve notice 1 278. Form of notice 1 279. Infringement penalties 1 280. AER cannot institute proceedings while infringement notice on foot 1 281. Late payment of penalty 1 282. Withdrawal of notice 1 283. Refund of infringement penalty 1 284. Payment expiates breach of civil penalty provision 1 285. Payment not to have certain consequences 1 286. Conduct in breach of more than 1 civil penalty provision 1 Part 8 — Further provision for corporate liability for breaches of this Law etc 287. Definition 1 288. Offences and breaches by corporations 1 289. Corporations also in breach if officers and employees are in breach 1 Chapter 9 — The making of the National Gas Rules Part 1 — General Division 1 — Interpretation 290. Definitions 1 Division 2 — Rule making tests 291. Application of national gas objective 1 292. AEMC must take into account form of regulation factors in certain cases 1 293. AEMC must take into account revenue and pricing principles in certain cases 1 Part 2 — Initial National Gas Rules 294. Initial National Gas Rules for WA 1 294CA. South Australian Minister may make consequential Rules relating to rate of return instrument 1 294F. South Australian Minister to make initial Rules relating to access to non‑scheme pipelines 1 294FC. South Australian Minister to make initial Rules relating to national gas objective 1 Part 3 — Procedure for the making of a Rule by the AEMC 295. Initiation of making of a Rule 1 296. AEMC may make more preferable Rule in certain cases 1 297. AEMC may make Rules that are consequential to a Rule request 1 298. Content of requests for a Rule 1 299. Waiver of fee for Rule requests 1 300. Consolidation of 2 or more Rule requests 1 301. Initial consideration of request for Rule 1 302. AEMC may request further information from Rule proponent in certain cases 1 303. Notice of proposed Rule 1 304. Publication of non‑controversial or urgent final Rule determination 1 305. "Fast track" Rules where previous public consultation by gas market regulatory body or an AEMC review 1 306. Right to make written submissions and comments 1 307. AEMC may hold public hearings before draft Rule determination 1 308. Draft Rule determination 1 309. Right to make written submissions and comments in relation to draft Rule determination 1 310. Pre‑final Rule determination hearing may be held 1 311. Final Rule determination 1 312. Further draft Rule determination may be made where proposed Rule is a proposed more preferable Rule 1 313. Making of Rule 1 314. Operation and commencement of Rule 1 315. Rule that is made to be published on website and made available to the public 1 316. Evidence of the National Gas Rules 1 Part 4 — Miscellaneous provisions relating to rule making by the AEMC 317. Extension of periods of time in Rule making procedure 1 318. AEMC may extend period of time for making of final Rule determination for further consultation 1 319. AEMC may publish written submissions and comments unless confidential 1 320. AEMC must publicly report on Rules not made within 12 months of public notification of requests 1 Chapter 10 — General Part 1 — Provisions relating to applicable access arrangements 321. Protection of certain pre‑existing contractual rights 1 322. Service provider may enter into agreement for access different from applicable access arrangement 1 323. Applicable access arrangements continue to apply regardless of who provides pipeline service 1 Part 2 — Handling of confidential information Division 1 — Disclosure of confidential information held by AER 324. Authorised disclosure of information given to the AER in confidence 1 325. Disclosure with prior written consent is authorised 1 326. Disclosure for purposes of court and tribunal proceedings and to accord natural justice 1 327. Disclosure of information given to the AER with confidential information omitted 1 328. Disclosure of information given in confidence does not identify anyone 1 329. Disclosure of confidential information authorised if detriment does not outweigh public benefit 1 Division 2 — Disclosure of confidential information held by relevant Ministers, NCC and AEMC 330. Definitions 1 331. Confidentiality of information received for scheme procedure purpose and for making of scheme decision 1 Part 3 — Miscellaneous 332. Failure to make a decision under this Law or the Rules within time does not invalidate the decision 1 333. Withdrawal of applications relating to coverage or reclassification 1 334. Notification of Ministers of participating jurisdictions of receipt of application 1 335. Relevant Minister may request NCC to give information or assistance 1 335A. Penalty privilege 1 335B. Court may grant relief from liability 1 336. Savings and transitionals 1 Schedule 1 — Subject matter for the National Gas Rules Schedule 2 — Miscellaneous provisions relating to interpretation Part 1 — Preliminary 1. Displacement of Schedule by contrary intention 1 Part 2 — General 2. Law to be construed not to exceed legislative power of Legislature 1 3. Vacant provision 1 4. Material that is, and is not, part of Law 1 5. References to particular Acts and to enactments 1 6. References taken to be included in Act or Law citation etc 1 7. Interpretation best achieving Law's purpose 1 8. Use of extrinsic material in interpretation 1 9. Compliance with forms 1 Part 3 — Terms and references 10. Definitions 1 11. Provisions relating to defined terms and gender and number 1 12. Meaning of may and must etc 1 13. Words and expressions used in statutory instruments 1 14. References to Minister 1 15. Production of records kept in computers etc 1 16. References to this jurisdiction to be implied 1 17. References to officers and holders of offices 1 18. Reference to certain provisions of Law 1 Part 4 — Functions and powers 19. Performance of statutory functions 1 20. Power to make instrument or decision includes power to amend or repeal 1 21. Matters for which statutory instruments may make provision 1 22. Presumption of validity and power to make 1 23. Appointments may be made by name or office 1 24. Acting appointments 1 25. Powers of appointment imply certain incidental powers 1 26. Delegation 1 27. Exercise of powers between enactment and commencement 1 27A. WA modifications of clause 27 1 Part 5 — Distance and time 28. Matters relating to distance and time 1 Part 6 — Service of documents 29. Service of documents and meaning of service by post etc 1 30. Meaning of service by post etc 1 Part 7 — Evidentiary matters Division 1 — Publication on websites 31. Definitions 1 32. Publication of decisions on websites 1 Division 2 — Evidentiary certificates 33. Definitions 1 34. Evidentiary certificates—AER 1 35. Evidentiary certificates—AEMC 1 36. Evidentiary certificates—NCC 1 37. Evidentiary certificates—relevant Minister and Commonwealth Minister 1 38. Evidentiary certificates—Bulletin Board operator 1 Part 8 — Commencement of this Law and statutory instruments 39. Time of commencement of this Law or a provision of this Law 1 40. Time of commencement of a Rule 1 Part 9 — Effect of repeal, amendment or expiration 41. Time of Law, the Regulations or Rules ceasing to have effect 1 42. Repealed Law, Regulation or Rule provisions not revived 1 43. Saving of operation of repealed Law, Regulation or Rule provisions 1 44. Continuance of repealed provisions 1 45. Law and amending Acts to be read as one 1 Part 10 — Offences under this Law 46. Penalty at foot of provision 1 47. Penalty other than at foot of provision 1 47A. Indexation of civil penalty amounts 1 47B. Indexation of criminal penalties 1 48. Indictable offences and summary offences 1 49. Double jeopardy 1 50. Attempts and incitement 1 Part 11 — Instruments under this Law 51. Schedule applies to statutory instruments 1 51A. Rate of return instrument construed not to exceed the legislative power of the Legislature of this jurisdiction or the powers conferred by this Law 1 52. National Gas Rules to be construed so as not to exceed the legislative power of the Legislature of this jurisdiction or the powers conferred by this Law 1 53. Invalid Rules 1 53A. Invalid rate of return instrument 1 Schedule 3 — Savings and transitionals Part 1 — General 1. Definitions 1 2. Schedule subject to jurisdictional transitional arrangements in jurisdictional legislation 1 Part 2 — General savings provision 3. Saving of operation of old access law and Gas Code 1 Part 3 — Classification and coverage of pipelines 4. Pending applications for the classification of pipelines lapse 1 5. Old scheme coverage determinations 1 6. Old scheme covered transmission pipelines 1 7. Old scheme covered distribution pipelines 1 8. Pending coverage applications under old scheme (before NCC recommendation) 1 9. Pending relevant Minister decisions in relation to coverage under old scheme 1 10. Pending relevant Minister decisions in relation to coverage that are reviewed under old scheme 1 11. Pending old scheme coverage determinations where no applications for review under old scheme 1 12. Pending old scheme coverage determinations where applications for review under old scheme on foot 1 13. Pending old scheme no‑coverage determinations where no applications for review under old scheme 1 14. Pending old scheme no‑coverage determinations where applications for review under old scheme on foot 1 15. Pending coverage revocation applications under old scheme (before NCC recommendation) 1 16. Pending relevant Minister decisions in relation to coverage revocation under old scheme 1 17. Pending relevant Minister decisions in relation to coverage revocation that are reviewed under old scheme 1 18. Pending old scheme coverage revocation determinations where no applications for review under old scheme 1 19. Pending old scheme coverage revocation determinations where applications for review under old scheme on foot 1 20. Pending old scheme coverage non‑revocation determinations where no applications for review under old scheme 1 21. Pending old scheme coverage non‑revocation determinations where applications for review under old scheme on foot 1 22. Binding no‑coverage determinations 1 23. Pending applications for binding no‑coverage determinations (before NCC recommendation) 1 24. Pending relevant Minister decisions for binding no‑coverage determinations under old scheme 1 25. Pending relevant Minister decisions in relation to binding no‑coverage determinations that are reviewed under old scheme 1 Part 4 — Access arrangements 26. Current access arrangements (other than old scheme limited access arrangements) 1 27. Old scheme limited access arrangements 1 28. Access arrangements submitted but not approved or rejected before repeal of old scheme 1 29. Access arrangement revisions submitted but not approved or rejected before repeal of old scheme 1 30. Certain provisions of the Gas Code to continue to apply to current and proposed access arrangements 1 31. Certain decisions relating to certain access arrangements are reviewable regulatory decisions for purposes of Chapter 8 Part 5 of the Law 1 32. Limited access arrangements submitted but not approved before repeal of old scheme 1 33. Extensions and expansions policies 1 34. Queuing policies 1 Part 5 — Price regulation exemptions 35. Old scheme price regulation exemptions 1 36. Pending applications for price regulation exemptions 1 37. Pending Commonwealth Minister decisions for price regulation exemptions 1 Part 6 — Structural and operational separation (ring fencing) 38. Definitions 1 39. Compliance with certain old scheme ring fencing requirements sufficient compliance for 6 month period 1 40. Existing waivers of ring fencing obligations 1 41. Additional ring fencing obligations 1 Part 7 — Access disputes 42. Non‑finalised access disputes 1 Part 8 — Investigations and proceedings 43. Investigations into breaches and possible breaches of the old access law or Gas Code 1 44. AER may conduct investigations into breaches or possible breaches of Gas Pipelines Access Law not investigated by a relevant Regulator 1 45. AER may bring proceedings in relation to breaches of old access law and Gas Code 1 Part 9 — Associate contracts 46. Pending associate contract approvals that are approved after commencement day 1 47. Pending associate contracts approvals that are not approved 1 48. Approved associate contracts 1 Part 10 — Other 49. Pending and final tender approval requests lapse 1 50. Decisions approving final approval requests 1 51. Rights under certain change of law provisions in agreements or deeds not to be triggered 1 52. References to relevant Regulator in access arrangements 1 53. Old scheme classifications and scheme participant determinations 1 Part 15—Transitional provision related to AEMC rule making powers 90. AEMC rule making powers 1 Part 17—Transitional provisions for rate of return instrument 95. Definitions 1 96. Making first rate of return instrument if review not completed before commencement 1 97. Making first rate of return instrument if review completed before commencement 1 98. Application of this Law to particular decisions 1 Part 18—Savings and transitional provisions related to Ministerial Council on Energy amendments 99. Definitions 1 100. References to Ministerial Council on Energy 1 101. Rights under certain change of law provisions in agreements or deeds not to be triggered 1 102. Rights under contracts etc 1 103. Saving of decisions etc 1 Part 20—Transitional provisions related to national gas objective amendments 133. Definitions 1 134. When amended objective takes effect for particular matters 1 135. Application of national gas objective to particular matters in progress on start day 1 136. Administrative guidance for decisions under clause 135(3) 1 137. Administrative guidance about value of greenhouse gas emissions 1 138. Validation of things done in relation to Rules before commencement 1 Notes about the Western Australian National Gas Access Law text Compilation table 1 Western Australia National Gas Access (WA) Act 2009 An Act to establish a framework to enable third parties to gain access to certain gas pipeline services, to amend the Gas Pipelines Access (Western Australia) Act 1998 and various other Acts, and for other purposes. The Parliament of Western Australia enacts as follows: Part 1 — Preliminary 1. Short title This is the National Gas Access (WA) Act 2009. 2. Commencement This Act comes into operation as follows — (a) sections 1 and 2 — on the day on which this Act receives the Royal Assent; (b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions. 3. Terms used in this Act (1) In this Act — National Gas Access (Western Australia) Law means the provisions applying because of section 7; National Gas Access (Western Australia) Regulations means the provisions applying because of section 8; South Australian Act means the National Gas (South Australia) Act 2008 of South Australia as amended from time to time. (2) Words and expressions used in the National Gas Access (Western Australia) Law (whether or not defined in section 9(1)) and in this Act have the same respective meanings in this Act as they have in that Law. (3) This section does not apply to the extent that the context or subject matter otherwise indicates or requires. 4. Crown bound This Act, the National Gas Access (Western Australia) Law and the National Gas Access (Western Australia) Regulations bind the Crown in right of the State and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. 5. Application to coastal waters (1) This Act, the National Gas Access (Western Australia) Law and the National Gas Access (Western Australia) Regulations apply in the coastal waters of this State as if the coastal waters were within the limits of the State. (2) In this section — adjacent area in respect of the State means the adjacent area of this jurisdiction under the National Gas Access (Western Australia) Law (as defined in section 9(1) of this Act); coastal waters, in relation to this State, means any sea that is on the landward side of the adjacent area in respect of the State but is not within the limits of the State. 6. Extra‑territorial operation It is the intention of the Parliament that this Act, the National Gas Access (Western Australia) Law and the National Gas Access (Western Australia) Regulations should, so far as possible, operate to the full extent of the extra‑territorial legislative power of the State. 6A. Extension to certain pipelines for hauling gas other than natural gas (1) The National Gas Access (Western Australia) Law and the National Gas Access (Western Australia) Regulations apply to a pipeline for hauling gas other than natural gas if the pipeline constitutes or is part of a system for which a licence is in force under Part 2A of the Energy Coordination Act 1994. (2) Subsection (1) has effect — (a) despite the provisions of the National Gas Access (Western Australia) Law and the National Gas Access (Western Australia) Regulations; and (b) as if, for the purposes of that subsection, a reference in that Law and those Regulations to natural gas were amended to include a reference to gas other than natural gas. (3) In this section — gas other than natural gas means substances which — (a) are in a gaseous state at standard temperature and pressure; and (b) consist of — (i) naturally occurring hydrocarbons; or (ii) a naturally occurring or manufactured mixture of hydrocarbons and non‑hydrocarbons, the principal constituent of which is propane, propene, butanes, butenes or a mixture of all or any of those substances or kinds of substances. 6B. Interpretation Act 1984 does not apply (1) The Interpretation Act 1984 does not apply to the National Gas Access (Western Australia) Law, to regulations under Part 3, or to Rules under the National Gas Access (Western Australia) Law. (2) Despite subsection (1), section 25 of the Interpretation Act 1984 applies to the making of regulations under Part 3. Part 2 — National Gas Access (Western Australia) Law and its regulations 7. National Gas Access (Western Australia) Law (1) The Western Australian National Gas Access Law text — (a) applies as a law of Western Australia; and (b) as so applying may be referred to as the National Gas Access (Western Australia) Law. (2) In subsection (1) — Western Australian National Gas Access Law text means the text that results from modifying the National Gas Law, as set out in the South Australian Act Schedule for the time being in force, to give effect to section 7A(3) and (4) and Schedule 1. 7A. Amendments to Schedule to South Australian Act (1) This section applies if, after the day on which the South Australian Act receives the Royal Assent, the Parliament of South Australia enacts a provision to make an amendment to the Schedule to the South Australian Act as in force from time to time (an SA Schedule amendment). (2) The Minister may by order declare that an SA Schedule amendment is relevant to the Western Australian National Gas Access Law text. (3) If the Minister has not declared that an SA Schedule amendment is relevant, the Western Australian National Gas Access Law text remains as if the amendment had not been made. (4) If the Minister has declared that an SA Schedule amendment is relevant, the Western Australian National Gas Access Law text remains, until the beginning of the day fixed by subsection (5), as if the amendment had not been made. (5) The day fixed is the day on which the order is published in the Government Gazette unless a later day is specified in the order, in which case it is the day specified. (6) Subsection (4) does not give an SA Schedule amendment any earlier effect in this State than it has in South Australia. 7B. Regulations amending Schedule 1 consequentially The Governor may make regulations under this section amending Schedule 1 as is necessary or expedient to deal with consequences of — (a) an SA Schedule amendment; or (b) giving effect to section 7A(3) or (4). 8. National Gas Access (Western Australia) Regulations The regulations in force for the time being under Part 3 — (a) apply as regulations in force for the purposes of the National Gas Access (Western Australia) Law; and (b) as so applying may be referred to as the National Gas Access (Western Australia) Regulations. 9. Terms used in National Gas Access (Western Australia) Law and its regulations (1) In the National Gas Access (Western Australia) Law and the National Gas Access (Western Australia) Regulations — adjacent area of another participating jurisdiction means the offshore area of a State other than this State or of the Northern Territory within the meaning given in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 of the Commonwealth; adjacent area of this jurisdiction means the offshore area of the State within the meaning given in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 of the Commonwealth; Court means the Supreme Court of Western Australia; designated Minister means the Minister to whom the administration of this Act has been committed; dispute resolution body means — (a) in relation to an ERA pipeline, the WA arbitrator; (b) in relation to any other pipeline, the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth; ERA pipeline means a pipeline other than — (a) an international pipeline; or (b) any other pipeline for which section 2 of the National Gas Access (Western Australia) Law defines the "relevant Minister" to mean a person other than the Minister responsible for the administration of this Act; Legislature of this jurisdiction means the Parliament of Western Australia; National Gas Law or this Law means the National Gas Access (Western Australia) Law; regulator means — (a) in relation to an ERA pipeline, the ERA; (b) in relation to any other pipeline, the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth; this jurisdiction means the State of Western Australia; WA arbitrator means the Western Australian Energy Disputes Arbitrator under Part 6 Division 3 of the Energy Arbitration and Review Act 1998. (2) A pipeline that is an offshore Western Australian pipeline as defined in section 3(1) of the Australian Energy Market Act 2004 of the Commonwealth is to be regarded as being situated wholly within Western Australia for the purpose of determining who is the relevant Minister under the National Gas Access (Western Australia) Law. (3) The Acts Interpretation Act 1915, and other Acts, of South Australia do not apply to the National Gas Law as set out in the Schedule to the South Australian Act in its application, with modifications, as a law of Western Australia. [Section 9 amended: No. 42 of 2010 s. 184.] Part 3 — Regulations for the National Gas Access (Western Australia) Law 10. Making regulations (1) The Governor, acting with the advice and consent of the Executive Council, may make regulations contemplated by, or necessary or expedient for giving effect to, the National Gas Access (Western Australia) Law. (2) Without limiting subsection (1), the regulations may prescribe fees in respect of any matter under the National Gas Access (Western Australia) Law, and provide for the waiver or refund of such fees. (3) Regulations under this Part may — (a) be of general or limited application; (b) vary according to the persons, times, places or circumstances to which they are expressed to apply; (c) in relation to fees, prescribe differential fees or provide for fees to be determined according to prescribed factors. (4) Once the Governor has made a regulation prescribing 1 or more pipelines to be designated pipelines for the purposes of the definition of designated pipeline in section 2 of the National Gas Access (Western Australia) Law, the Governor cannot make another regulation that prescribes any other pipeline to be a designated pipeline. (5) Regulations under this Part may be made only on the unanimous recommendation of the Ministers of the participating jurisdictions. (6) Regulations under this Part have to be published in the Government Gazette. 11. Regulations may deal with transitional matters (1) Without limiting the generality of section 10, the regulations may deal with matters of a transitional nature relating to the transition from the application of provisions of the Gas Pipelines Access Law to the application of provisions of the National Gas Access (Western Australia) Law. (2) Any provision of the regulations that deals with a matter of a transitional nature under subsection (1) may be expressed to take effect from a time that is earlier than the beginning of the day on which the regulations containing the provision are made, not being a time earlier than the commencement of this section. (3) If a provision of the regulations is expressed to take effect from a time that is earlier than the beginning of the day on which the regulations containing the provision are published in the Government Gazette, the provision must also provide that the provision does not operate so as — (a) to prejudicially affect the rights of a person (other than the rights of a Minister of a participating jurisdiction or an entity involved in the administration of the Gas Pipelines Access Law or the National Gas Access (Western Australia) Law) existing before the day of publication of those regulations; or (b) to impose liabilities on any person (other than liabilities imposed on a Minister of a participating jurisdiction or an entity involved in the administration of the Gas Pipelines Access Law or the National Gas Access (Western Australia) Law) in respect of anything done or omitted to be done before the day of publication of those regulations. (4) In this section — Gas Pipelines Access Law has the meaning that the term had under section 3(1) of the Gas Pipelines Access (Western Australia) Act 1998 before the commencement of this section; matters of a transitional nature includes matters of an application or savings nature; National Gas Access (Western Australia) Law means the provisions applying from time to time because of section 7, and it includes Rules made and in force under those provisions from time to time. Part 4 — Cross vesting of functions and powers 12. Conferral of powers on Commonwealth Minister and Commonwealth bodies to act in this State (1) The Commonwealth Minister and the Commonwealth bodies have power to do acts in or in relation to this State in the performance or exercise of a function or power expressed to be conferred on them respectively by the national gas legislation of another participating jurisdiction. (2) In subsection (1) — Commonwealth bodies means any of the following: (a) the AER; (b) the NCC; (c) the Tribunal. 13. Conferral of powers on Ministers of other participating States and Territories to act in this State The Minister of another participating jurisdiction has power to do acts in or in relation to this State in the performance or exercise of a function or power expressed to be conferred on the Minister by the national gas legislation of another participating jurisdiction. 14. Conferral of functions or powers on State bodies If the national gas legislation of another participating jurisdiction confers a function or power on the Minister or another agency or instrumentality of this State constituted by a law of this State, the Minister or the other agency or instrumentality — (a) may perform that function or exercise that power; and (b) may do all things necessary or expedient to be done in connection with the performance or exercise of that function or power. Part 5 — General 15. Exemption from taxes (1) Any duty or other tax imposed by or under a law of this State is not payable in relation to — (a) an exempt matter; or (b) anything done (including, for example, a transaction entered into or an instrument or document made, executed, lodged or given) because of, or arising out of, an exempt matter. (2) In this section — exempt matter means a transfer of assets or liabilities — (a) that is made for the purpose of ensuring that a person does not carry on a business of producing, purchasing or selling natural gas or processable gas in breach of any ring fencing requirements of any national gas legislation or for the purpose of the separation of certain businesses or business activities from other businesses or business activities of a person as required by an AER ring fencing determination; and (b) that the Minister and the Treasurer declare from time to time, by order notice of which is published in the Government Gazette, to be an exempt matter for the purposes of this section. 16. Actions in relation to cross boundary pipelines (1) If a pipeline is a cross boundary pipeline, any action taken under the national gas legislation of a participating jurisdiction in whose jurisdictional area a part of the pipeline is situated — (a) by, or in relation to, a relevant Minister; or (b) by the Court within the meaning that term has in that legislation in relation to action taken by, or in relation to, a relevant Minister, is taken also to be taken under the national gas legislation of each participating jurisdiction in whose jurisdictional area a part of the pipeline is situated (that other legislation) — (c) by, or in relation to, a relevant Minister within the meaning that term has in that other legislation; or (d) by the Court within the meaning that term has in that other legislation, as the case requires. (2) Despite subsection (1), no proceeding for judicial review or for a declaration, injunction, writ, order or remedy may be brought before the Court to challenge or question any action, or purported action, of a relevant Minister taken, or purportedly taken, in relation to a cross boundary distribution pipeline unless this jurisdiction has been determined to be the participating jurisdiction with which the cross boundary distribution pipeline is most closely connected. (3) A reference in this section — (a) to an action that is taken includes a reference to — (i) a decision or determination that is made; or (ii) an omission that is made; (b) to a purported action that is purportedly taken includes a reference to a purported decision or determination that is purportedly made. (4) In this section — cross boundary pipeline means — (a) a cross boundary transmission pipeline; or (b) a cross boundary distribution pipeline. 17. Conferral of functions and powers on Commonwealth bodies (1) Clause 2 of Schedule 2 to the National Gas Access (Western Australia) Law has effect in relation to the operation of any provision of this Act, or any regulation forming part of the National Gas Access (Western Australia) Regulations, as if the provision or regulation formed part of the National Gas Access (Western Australia) Law. (2) Subsection (1) does not limit the effect that a provision or regulation would validly have apart from the subsection. Part 6 — Other local provisions Division 1 — Economic Regulation Authority 18. Expertise of Director of Energy Safety to be used In performing its functions under this Act the ERA is to make appropriate use of the expertise of the Director of Energy Safety under the Energy Coordination Act 1994 in relation to safety or technical standards in the gas supply industry. Division 2 — Miscellaneous 19. Preservation of certain contracts relating to privatised DBNGP system (1) The national provisions do not affect the continuance or operation of an exempt contract. (2) Despite the repeal of the Gas Pipelines Access (Western Australia) Act 1998 section 96, that section continues to apply to a contract other than an exempt contract as if the references in section 96(1) and (2)(b) to "the Code" were references to the relevant national provisions. (3) In this section — exempt contract — (a) means a contract in respect of which a declaration under the Gas Corporation Act 1994 Schedule 5 clause 6 was in force immediately before the coming into operation of the Dampier to Bunbury Pipeline Act 1997 Schedule 4 clause 17(4); and (b) includes a contract entered into — (i) in substitution for a contract referred to in paragraph (a) or any provision of such a contract; or (ii) by way of amendment of a contract referred to in paragraph (a) or subparagraph (i); national provisions means the National Gas Access (Western Australia) Law, the Rules made under that Law, and the National Gas Access (Western Australia) Regulations; relevant national provisions means any of the national provisions having the same purpose as a provision of the Gas Code, as defined in the National Gas Access (Western Australia) Law section 2. 20. Transitional provisions for Kalgoorlie to Kambalda pipeline (1) This section applies to the pipeline to which licence PL27, granted under the Petroleum Pipelines Act 1969, applies. (2) A service provider has a period of 6 months after the day on which section 30 comes into operation (the transitional period) within which to — (a) submit to the ERA an access arrangement; or (b) apply for a determination that the pipeline be no longer a covered pipeline; or (c) apply under section 112 of the National Gas Access (Western Australia) Law for a light regulation determination. (3) Despite section 111(b) of the National Gas Access (Western Australia) Law, an application may be made in accordance with subsection (2)(c), even though there is no applicable access arrangement for the pipeline, and Chapter 3 Part 2 Division 1 Subdivision 1 of that Law applies to the application. 21. Regulations (1) Without limiting the power to make regulations under Part 3, the Governor acting with the advice and consent of the Executive Council may make other regulations contemplated by, or necessary or expedient for giving effect to, this Act. (2) Regulations under subsection (1) may make provision for and in relation to the imposition and payment of fees and charges in connection with the performance of functions the arbitrator has under this Act, to the extent that the costs connected with performing those functions are not covered by fees under the National Gas Access (Western Australia) Regulations. (3) If it is inappropriate to prescribe a set fee or charge in connection with the performance of a particular function the regulations may provide for the method of calculating the fee or charge, including calculation according to the cost of performing that function. (4) Despite the National Gas Access (Western Australia) Law or Rules made under that Law, regulations under subsection (1) may make provision for further matters to affect the setting of a reference tariff for a reference service provided by means of a distribution pipeline to the extent that the service is used for the supply of natural gas to an end user prescribed by the regulations to be a small use customer for the purposes of this subsection. (5) Regulations under subsection (1) may prescribe a period ending not later than 31 December 2031 as a period during which the fixed principle referred to in clause 7.13(a)(ii) of the Revised Access Arrangement for the Dampier to Bunbury Natural Gas Pipeline dated 21 November 2006 applies despite anything in the National Gas Access (Western Australia) Law or Rules made under that Law, and during a period prescribed the fixed principle applies accordingly. 22. Review of Act (1) The Minister is to cause a person, other than an officer of a department or body for which the Minister is responsible, to carry out a review of the operation and effectiveness of this Act as soon as is practicable after the review day described in subsection (2) and, in the course of that review, consideration is to be given, and regard is to be had, to — (a) the effectiveness of the operations of the ERA and the WA arbitrator; and (b) the need for the continuation of section 21(4) and (5); and (c) any other matters that appear to the Minister to be relevant to the operation and effectiveness of this Act. (2) The review day is 1 July 2013 unless, before that day a licence is granted under the Petroleum Pipelines Act 1969 for a pipeline that is to be partly in the jurisdictional area of this State and partly in the jurisdictional area of the Northern Territory or South Australia, in which case the review day is the day on which the licence is granted. (3) The person carrying out the review is to prepare and give to the Minister a report based on the review within sufficient time to enable the Minister to comply with subsection (4). (4) The Minister is to prepare a response to the