Federal Register of Legislation - Australian Government

Primary content

Act No. 101 of 1998 as made
An Act to make provision for the regulation of third party access to natural gas pipeline systems, and for other purposes
Administered by: Resources, Energy and Tourism
Date of Assent 30 Jul 1998
Date of repeal 01 Jul 2008
Repealed by Australian Energy Market Amendment (Gas Legislation) Act 2007

 

 

 

 

Gas Pipelines Access (Commonwealth) Act 1998

 

No. 101, 1998

 

 

 

 

  

  

  


 

 

 

 

Gas Pipelines Access (Commonwealth) Act 1998

 

No. 101, 1998

 

 

 

 

An Act to make provision for the regulation of third party access to natural gas pipeline systems, and for other purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                              

1............ Short title............................................................................................

2............ Commencement..................................................................................

3............ Schedule(s)..........................................................................................

4............ Interpretation of this Act and related legislation................................

5............ Definitions..........................................................................................

6............ Crown to be bound.............................................................................

7............ Extra-territorial operation...................................................................

Part 2—Application of this Act, the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations in particular circumstances              

8............ Application of laws in certain Territories and adjacent areas under this Act          

9............ Application of Gas Pipelines Access Law in certain adjacent areas under P(SL) Act                      

10.......... Application of Gas Pipelines Access Regulations in certain adjacent areas under P(SL) Act          

11.......... Extended operation of certain State and Territory Laws....................

12.......... Interpretation of some expressions in the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations..........................................................

Part 3—National administration and enforcement                                            

Division 1—Conferral of functions and powers                                           

13.......... Functions and powers conferred on Commonwealth Minister under State or Territory laws         

14.......... Functions and powers conferred on local Ministers, local Regulators and local appeals bodies in or in relation to jurisdictional area of the Commonwealth.........................................

15.......... Conferral of functions on Code Registrar.........................................

Division 2—Federal Court                                                                                      

16.......... Jurisdiction of Federal Court in relation to Gas Pipelines Access Law and Regulations                  

17.......... Conferral of jurisdiction on Federal Court not to affect cross-vesting law              

Division 3—Administrative decisions                                                              

18.......... Application of the Administrative Decisions (Judicial Review) Act 1977                

19.......... Application of the Administrative Decisions (Judicial Review) Act 1977 in relation to other scheme participants   

Part 4—Miscellaneous                                                                                                      

20.......... Exemption from Commonwealth taxes.............................................

21.......... Exemption from State and Territory taxes.......................................

22.......... Actions in relation to cross-boundary pipelines..............................

23.......... Regulations.......................................................................................

Schedule 1—Amendment of Commonwealth Acts to facilitate the national scheme                      

Australian Capital Territory (Self-Government) Act 1988                              

Moomba-Sydney Pipeline System Sale Act 1994                                               

Petroleum (Submerged Lands) Act 1967                                                             

Trade Practices Act 1974                                                                                        

 


Gas Pipelines Access (Commonwealth) Act 1998

No. 101, 1998

 

 

 

An Act to make provision for the regulation of third party access to natural gas pipeline systems, and for other purposes

[Assented to 30 July 1998]

Preamble

                   This Preamble sets out the matters taken into account by the Parliament in enacting this Act.

                   The Council of Australian Governments agreed, in February 1994, to general principles of competition policy reform to enable third parties, in particular circumstances, to gain access to essential facilities.

                   The Council of Australian Governments, as part of that commitment to reform, agreed to more specific proposals for the development of free and fair trade in natural gas.

                   The Commonwealth, the States of New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania, the Australian Capital Territory and the Northern Territory agreed in November 1997 to the enactment of legislation in the Commonwealth and those States and Territories so that a uniform national framework applies for third party access to all gas pipelines that:

                     (a)  facilitates the development and operation of a national market for natural gas; and

                     (b)  prevents abuse of monopoly power; and

                     (c)  promotes a competitive market for natural gas in which customers may choose suppliers, including producers, retailers and traders; and

                     (d)  provides rights of access to natural gas pipelines on conditions that are fair and reasonable for the owners and operators of gas transmission and distribution pipelines and persons wishing to use the services of those pipelines; and

                     (e)  provides for resolution of disputes.

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Gas Pipelines Access (Commonwealth) Act 1998.

2  Commencement

             (1)  Subject to subsections (2) and (3), this Act commences at the commencement of sections 13 and 14 of the Gas Pipelines Access (South Australia) Act 1997 of South Australia.

             (2)  Items 2 to 4 of Schedule 1 commence at the commencement of the later of:

                     (a)  sections 13 and 14 of the Gas Pipelines Access (South Australia) Act 1997 of South Australia; and

                     (b)  the provisions that correspond to those sections and that are contained in a law of New South Wales that substantially corresponds to Parts 1, 2, 4 and 5 of the South Australian Act.

             (3)  Items 27 to 56 of Schedule 1 commence on the day on which this Act receives the Royal Assent.

3  Schedule(s)

                   Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4  Interpretation of this Act and related legislation

                   There are a number of places where the reader might find the definition of a term used in this Act or the related Gas Pipelines Access (Commonwealth) Law and Gas Pipelines Access (Commonwealth) Regulations. Apart from terms defined specifically for the purposes of a particular provision (for example, see subsection 21(2)), definitions are located as follows:

                     (a)  if a term is defined for the purposes of this Act only—section 5 of this Act;

                     (b)  if a term is defined for the purposes of the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations and the meaning of that term is specific to the jurisdiction of the Commonwealth—section 12 of this Act;

                     (c)  if a term is defined for the purposes of the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations and the term has the same meaning for every jurisdiction that participates in the national scheme for third party access to gas pipelines—section 2 of Schedule 1 to the South Australian Act and the Appendix to that Schedule.

In addition, the Appendix referred to in paragraph (c) also makes other provisions for the interpretation of that Law. That Appendix, or substantially corresponding provisions, will apply to each jurisdiction that participates in the national scheme under the law of that jurisdiction.

5  Definitions

             (1)  In this Act, unless the contrary intention appears:

adjacent area, in respect of a State or Territory, means the area that is identified in section 5A of the Petroleum (Submerged Lands) Act 1967 as the adjacent area in respect of that State or Territory.

Gas Pipelines Access (Commonwealth) Law means:

                     (a)  in relation to an external Territory and its adjacent area or to the Jervis Bay Territory—the provisions applying in that external Territory and its adjacent area, or in the Jervis Bay Territory, under subsection 8(1); or

                     (b)  in relation to the adjacent area in respect of a State or of the Northern Territory—the provisions applying in that adjacent area because of the operation of section 9.

Gas Pipelines Access (Commonwealth) Regulations means:

                     (a)  in relation to an external Territory and its adjacent area or to the Jervis Bay Territory—the provisions applying in that external Territory and its adjacent area, or in the Jervis Bay Territory, under subsection 8(1); or

                     (b)  in relation to the adjacent area in respect of a State or of the Northern Territory—the provisions applying in that adjacent area because of the operation of section 10.

Gas Pipelines Access Law means:

                     (a)  Schedule 1 to the South Australian Act:

                              (i)  as enacted; or

                             (ii)  if amended, as amended and in force for the time being; and

                     (b)  the National Third Party Access Code for Natural Gas Pipeline Systems (a copy of which, as agreed by the Council of Australian Governments on 7 November 1997, is set out in Schedule 2 to the South Australian Act), or, if that Code is amended in accordance with Schedule 1 to that Act, that Code as so amended and in force for the time being.

Gas Pipelines Access Regulations means regulations in force from time to time under Part 3 of the South Australian Act.

national scheme means the scheme for the provision of third party access to gas pipelines facilitated by the collective operation of the gas pipelines access legislation of all scheme participants.

P(SL) Act means the Petroleum (Submerged Lands) Act 1967.

South Australian Act means the Gas Pipelines Access (South Australia) Act 1997 of South Australia.

             (2)  Words and expressions used in Schedule 1 to the South Australian Act (applying as part of the Gas Pipelines Access (Commonwealth) Law) and in this Act have the same respective meanings in this Act as they have in that Schedule.

             (3)  Subsection (2) does not apply to the extent that the context or subject matter otherwise indicates or requires.

6  Crown to be bound

                   This Act, the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations bind the Crown in all its capacities other than the Crown in right of Norfolk Island.

7  Extra-territorial operation

             (1)  It is the intention of the Parliament that the operation of this Act, the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations should, as far as possible, include operation in relation to the following:

                     (a)  things situated in or outside Australia;

                     (b)  acts, transactions and matters done, entered into or occurring in or outside Australia;

                     (c)  things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of a State, a Territory or a foreign country.

             (2)  Nothing in subsection (1) has effect in relation to a pipeline to the extent that the pipeline is situated, or partly situated, beyond the jurisdictional areas of all the scheme participants.


 

Part 2Application of this Act, the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations in particular circumstances

  

8  Application of laws in certain Territories and adjacent areas under this Act

             (1)  This Act, the Gas Pipelines Access Law and the Gas Pipelines Access Regulations apply:

                     (a)  in each of the external Territories (other than Norfolk Island or the Australian Antarctic Territory or any other external Territory that is prescribed); and

                     (b)  in the adjacent area in respect of each external Territory to which this Act applies under paragraph (a); and

                     (c)  in the Jervis Bay Territory.

             (2)  If the Gas Pipelines Access Law applies in an external Territory and its adjacent area or in the Jervis Bay Territory:

                     (a)  the Gas Pipelines Access Law so applies as a law of the Commonwealth; and

                     (b)  as so applying may be referred to as the Gas Pipelines Access (Commonwealth) Law.

             (3)  If the Gas Pipelines Regulations apply in an external Territory and its adjacent area or in the Jervis Bay Territory:

                     (a)  the Gas Pipelines Access Regulations so apply as regulations in force for the purposes of the Gas Pipelines Access (Commonwealth) Law; and

                     (b)  as so applying may be referred to as the Gas Pipelines Access (Commonwealth) Regulations.

             (4)  Subsection (1) does not apply in relation to a Territory or its adjacent area if, in accordance with an Act, there is in force in that Territory, whether with or without modifications, the gas pipelines access legislation of a State, the Australian Capital Territory or the Northern Territory.

9  Application of Gas Pipelines Access Law in certain adjacent areas under P(SL) Act

                   If this Act applies in the adjacent area in respect of a State or of the Northern Territory because of the operation of subsection 9(1A) or 11(1A) of the P(SL) Act:

                     (a)  the Gas Pipelines Access Law also applies in that adjacent area as a law of the Commonwealth; and

                     (b)  as so applying may be referred to as the Gas Pipelines Access (Commonwealth) Law.

10  Application of Gas Pipelines Access Regulations in certain adjacent areas under P(SL) Act

                   If this Act applies in the adjacent area in respect of a State or of the Northern Territory because of the operation of subsection 9(1A) or 11(1A) of the P(SL) Act:

                     (a)  the Gas Pipelines Access Regulations also apply in that adjacent area as regulations in force for the purposes of the Gas Pipelines Access (Commonwealth) Law; and

                     (b)  as so applying may be referred to as the Gas Pipelines Access (Commonwealth) Regulations.

11  Extended operation of certain State and Territory Laws

             (1)  If, because of the operation of subsection 9(1) or 11(1) of the P(SL) Act, the gas pipelines access legislation of a State or of the Northern Territory also applies, as a law of the Commonwealth, in the adjacent area in respect of that State or Territory, then:

                     (a)  subject to subsection (2), any act or thing done, including an act or thing that is taken to have been done, for the purposes of the gas pipelines access legislation of that State or Territory, is taken also to be done or to have been done for the purposes of that legislation as so applying; and

                     (b)  subject to subsection (3), that legislation as so applying is to be administered by the same persons or bodies, and in the same manner, as that law is administered within the limits of the State or Territory.

             (2)  If:

                     (a)  an act or thing was done for the purposes of a law of a State or Territory (whether before or after the commencement of the gas pipelines access legislation of that State or Territory); and

                     (b)  the act or thing is, for the purposes of a law of the State or Territory, taken to have been done for the purposes of the gas pipelines access legislation of that State or Territory;

the act or thing is taken, under paragraph (1)(a), to have been done under the gas pipelines access legislation applying in the adjacent area in respect of that State or Territory only if the Commonwealth Minister determines in writing that the act or thing is to be taken to have that effect.

             (3)  Subject to subsection (4), if any payment (including fees, charges or pecuniary penalties) (an applicable payment) is received by the State or Territory referred to in subsection (1), or by an authority of that State or Territory, under the gas pipelines access legislation as so applying:

                     (a)  the applicable payment is taken to have been received on behalf of the Commonwealth and must be paid to the Commonwealth by that State or Territory or that authority; and

                     (b)  the Commonwealth must pay to the State or Territory, or to that authority, an amount equal to the applicable payment.

             (4)  A payment under paragraph (3)(a) may be set off against a payment under paragraph (3)(b) but the Commonwealth must show, for accounting purposes, the full amount of each payment made under each of those paragraphs.

             (5)  If, in accordance with an Act of the Commonwealth, the gas pipelines access legislation of a State, the Australian Capital Territory or the Northern Territory is in force in an external Territory and its adjacent area, or in the Jervis Bay Territory, then:

                     (a)  subject to subsection (6), any act or thing done, including any act or thing that is taken to have been done, for the purposes of the gas pipelines access legislation of that State, the Australian Capital Territory or the Northern Territory, is taken also to be done, or to have been done, for the purposes of that legislation as so in force; and

                     (b)  subject to subsection (7), that legislation as so in force is to be administered by the same persons or bodies, and in the same manner, as that law is administered within the limits of the State, the Australian Capital Territory or the Northern Territory, as the case may be.

             (6)  If:

                     (a)  an act or thing was done for the purposes of a law of a State, the Australian Capital Territory or the Northern Territory (whether before or after the commencement of the gas pipelines access legislation of that State or Territory); and

                     (b)  the act or thing is, under a law of that State or Territory, taken to have been done for the purposes of the gas pipelines access legislation of that State or Territory;

the act or thing is taken, under paragraph (5)(a), to have been done for the purposes of the gas pipelines access legislation as in force in an external Territory and its adjacent area only if the Commonwealth Minister determines in writing that the act or thing is to be taken to have that effect.

             (7)  Subject to subsection (8), if any payment (including fees, charges or pecuniary penalties) (an applicable payment) is received by the State, the Australian Capital Territory or the Northern Territory referred to in subsection (5), or by an authority of that State or Territory, under the gas pipelines access legislation as in force in an external Territory and its adjacent area:

                     (a)  the applicable payment is taken to have been received on behalf of the Commonwealth and must be paid to the Commonwealth by that State or Territory or by that authority; and

                     (b)  the Commonwealth must pay to the State or Territory, or to that authority, an amount equal to the applicable payment.

             (8)  A payment under paragraph (7)(a) may be set off against a payment under paragraph (7)(b) but the Commonwealth must show, for accounting purposes, the full amount of each payment made under each of those paragraphs.

             (9)  The Consolidated Revenue Fund of the Commonwealth is appropriated for the purpose of making the payments provided for in paragraphs (3)(b) and (7)(b).

           (10)  The Commonwealth Minister must cause a copy of each determination under subsection (2) or (6) to be laid before each House of the Parliament within 5 sitting days of that House after the determination was made.

           (11)  Nothing in this section affects, by implication, the application of any other law of a State, the Australian Capital Territory or the Northern Territory, under another provision of an Act, in:

                     (a)  an external Territory; or

                     (b)  the adjacent area in respect of a State or Territory; or

                     (c)  the Jervis Bay Territory.

           (12)  A reference in this section to an act or thing done or taken to have been done includes a reference to a decision made or taken to have been made.

12  Interpretation of some expressions in the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations

             (1)  In the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations:

Code means:

                     (a)  the National Third Party Access Code for Natural Gas Pipeline Systems, a copy of which, as agreed by the Council of Australian Governments on 7 November 1997, is set out in Schedule 2 to the South Australian Act; or

                     (b)  if that Code is amended in accordance with Schedule 1 to that Act, that Code as so amended and in force for the time being;

as it applies because of section 8 or 9 of this Act as a law of the Commonwealth.

Consolidated Fund means the Consolidated Revenue Fund of the Commonwealth.

Gas Pipelines Access Law means the Gas Pipelines Access (Commonwealth) Law.

Legislature means the Parliament of the Commonwealth.

local Regulator means the ACCC.

the Court means the Federal Court of Australia.

this law means the Gas Pipelines Access (Commonwealth) Law.

this scheme participant means the Commonwealth.

             (2)  In the Gas Pipelines Access (Commonwealth) Law and the Gas Pipelines Access (Commonwealth) Regulations:

                     (a)  a reference to the local appeals body or to the designated appeals body is a reference to the Australian Competition Tribunal; and

                     (b)  a reference to the local Minister or to the designated Minister is a reference to the Minister having responsibility for the administration of this Act.


 

Part 3National administration and enforcement

Division 1Conferral of functions and powers

13  Functions and powers conferred on Commonwealth Minister under State or Territory laws

                   If a function or power is, under the gas pipelines access legislation of a State or Territory, conferred, or expressed to be conferred, on the Commonwealth Minister, the Commonwealth Minister:

                     (a)  may perform that function or exercise that power; and

                     (b)  may exercise any power necessary or convenient to permit the performance of that function.

Note:          Functions and powers conferred, or expressed to be conferred, on the ACCC, the NCC and the Australian Competition Tribunal under the Gas Pipelines Access Legislation of a State or Territory are dealt with under sections 44ZZM, 29B and 44ZZOA of the Trade Practices Act 1974 respectively.

14  Functions and powers conferred on local Ministers, local Regulators and local appeals bodies in or in relation to jurisdictional area of the Commonwealth

                   If:

                     (a)  a function or power is, under the gas pipelines access legislation of a State or Territory, expressed to be conferred on the local Minister, the local Regulator or the local appeals body, within the meaning of the gas pipelines access legislation of that State or Territory; and

                     (b)  that function or power is to be performed or exercised in or in relation to the jurisdictional area of the Commonwealth;

that local Minister, local Regulator or local appeals body:

                     (c)  may perform that function or exercise that power in or in relation to that area; and

                     (d)  may exercise any power necessary or convenient to permit the performance of that function.

15  Conferral of functions on Code Registrar

             (1)  The Code Registrar has:

                     (a)  the functions and powers conferred or expressed to be conferred on the Code Registrar under the Gas Pipelines Access (Commonwealth) Law or under the National Gas Agreement; and

                     (b)  any other functions and powers conferred on the Code Registrar by unanimous resolution of the relevant Ministers of the scheme participants.

             (2)  In addition to the powers mentioned in subsection (1), the Code Registrar has power to do all things necessary or convenient to be done in connection with the performance of the functions and powers referred to in that subsection.


 

Division 2Federal Court

16  Jurisdiction of Federal Court in relation to Gas Pipelines Access Law and Regulations

             (1)  Jurisdiction is conferred on the Federal Court with respect to civil and criminal matters arising under the Gas Pipelines Access (Commonwealth) Law.

             (2)  The Federal Court has, and may exercise, the jurisdiction conferred on the Court by the gas pipelines access legislation of a scheme participant other than the Commonwealth with respect to:

                     (a)  civil and criminal matters arising under the Gas Pipelines Access Law of that scheme participant; and

                     (b)  applications made to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 as applying under that legislation as a law of that scheme participant.

17  Conferral of jurisdiction on Federal Court not to affect cross-vesting law

                   The conferral of jurisdiction on the Federal Court by the gas pipelines access legislation of a scheme participant other than the Commonwealth does not affect the operation of any law relating to cross-vesting of jurisdiction.


 

Division 3Administrative decisions

18  Application of the Administrative Decisions (Judicial Review) Act 1977

             (1)  For the purposes of the application of the Administrative Decisions (Judicial Review) Act 1977 to any decision of a Code body under the Gas Pipelines Access (Commonwealth) Law or the Gas Pipelines Access (Commonwealth) Regulations, those decisions are taken to be decisions made under an enactment within the meaning of that Act.

             (2)  In this section:

Code body means:

                     (a)  the NCC; or

                     (b)  the ACCC, including the ACCC in its capacity as local Regulator within the meaning of the Gas Pipelines Access (Commonwealth) Law; or

                     (c)  the Australian Competition Tribunal, including that tribunal in its capacity as local appeals body within the meaning of the Gas Pipelines Access (Commonwealth) Law; or

                     (d)  the local Minister; or

                     (e)  an arbitrator appointed under Part 4 of the Gas Pipelines Access (Commonwealth) Law.

19  Application of the Administrative Decisions (Judicial Review) Act 1977 in relation to other scheme participants

             (1)  The Administrative Decisions (Judicial Review) Act 1977 applies to any matter arising in relation to a decision of a Code body under the gas pipelines access legislation of a scheme participant other than the Commonwealth as if that legislation were an enactment within the meaning of that Act and not a law of that scheme participant.

             (2)  For the purposes of the application of the Administrative Decisions (Judicial Review) Act 1977, a matter arising in relation to a decision of a Code body under the gas pipelines access legislation of a scheme participant other than the Commonwealth:

                     (a)  is taken to be a matter arising in relation to laws of the Commonwealth in the same way as if that legislation were a law of the Commonwealth; and

                     (b)  is taken not to be a matter arising in relation to laws of that scheme participant.

             (3)  This section does not require, prohibit, empower, authorise or otherwise provide for, the doing of an act outside the jurisdictional area of the Commonwealth.

             (4)  In this section:

Code body means:

                     (a)  the NCC; or

                     (b)  the ACCC, including the ACCC in its capacity as local Regulator within the meaning of the Gas Pipelines Access (Commonwealth) Law; or

                     (c)  the Australian Competition Tribunal, including that tribunal in its capacity as local appeals body within the meaning of the Gas Pipelines Access (Commonwealth) Law; or

                     (d)  the local Minister within the meaning of the Gas Pipelines Access (Commonwealth) Law; or

                     (e)  an arbitrator appointed under Part 4 of the Gas Pipelines Access (Commonwealth) Law.


 

Part 4Miscellaneous

  

20  Exemption from Commonwealth taxes

             (1)  Any prescribed tax imposed by or under a law of the Commonwealth 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 that the Commonwealth Minister and the Treasurer are satisfied is made:

                     (a)  for the purpose of ensuring that a person does not carry on a business of producing, purchasing or selling natural gas in breach of the Code; or

                     (b)  for the purpose of the separation of certain activities from other activities of a person as required by the Code;

and for no other purpose.

21  Exemption from State and Territory taxes

             (1)  Any stamp duty or other tax imposed by or under a law of a State or Territory 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 that the Commonwealth Minister is satisfied is made:

                     (a)  for the purpose of ensuring that a person does not carry on a business of producing, purchasing or selling natural gas in breach of the Code; or

                     (b)  for the purpose of the separation of certain activities from other activities of a person as required by the Code;

and for no other purpose.

22  Actions in relation to cross-boundary pipelines

             (1)  If a pipeline is a cross-boundary pipeline, any action taken under the gas pipelines access legislation of a scheme participant in whose jurisdictional area a part of the pipeline is situated:

                     (a)  by, or in relation to, a relevant Minister, or a relevant Regulator, within the meaning of that legislation; or

                     (b)  by, or in relation to, an arbitrator appointed by such a relevant Regulator within the meaning of that legislation; or

                     (c)  by the Federal Court, or by the Supreme Court, or the relevant appeals body, within the meaning of that legislation, in relation to the action taken by, or in relation to, a person or body referred to in paragraph (a) or (b);

is taken also to be action taken under the gas pipelines access legislation of each other scheme participant in whose jurisdictional area a part of the pipeline is situated (that other legislation):

                     (d)  by, or in relation to, a relevant Minister, or a relevant Regulator, within the meaning of that other legislation; or

                     (e)  by, or in relation to, an arbitrator appointed by a relevant Regulator within the meaning of that other legislation; or

                      (f)  by the Federal Court, or by the Supreme Court, or relevant appeals body, within the meaning of that other legislation;

as the case requires.

             (2)  In this section:

cross-boundary pipeline means a transmission pipeline, or a distribution pipeline, that is, or is to be, situated in the jurisdictional areas of 2 or more scheme participants.

             (3)  A reference in this section to an action that is taken includes a reference to a decision that is made.

23  Regulations

                   The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


Schedule 1Amendment of Commonwealth Acts to facilitate the national scheme

  

Australian Capital Territory (Self-Government) Act 1988

1  After section 48A

Insert:

48AA  ACT laws may give concurrent jurisdiction to the Federal Court of Australia

                   Nothing in section 48A is to be taken to imply that a law of the Australian Capital Territory may not confer on the Federal Court of Australia original or appellate jurisdiction in any matter in respect of which, by virtue of section 48A, jurisdiction is conferred on the Supreme Court.

Moomba-Sydney pipeline system sale Act 1994

2  Part 6

Repeal the Part.

3  Compensation for any acquisition of property

(1)        If:

                     (a)  but for this item, the repeal of Part 6 of the Moomba-Sydney pipeline system sale Act 1994 would result in the acquisition of property from a person; and

                     (b)  the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;

there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined by the Federal Court.

(2)        Any damages or compensation recovered or other remedy given in proceedings which are instituted otherwise than under this item must be taken into account in assessing compensation payable in proceedings that are instituted under this item and that arise out of the same event or transaction.

(3)        In this item:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

4  Saving provisions

(1)        If, before the commencement of this item:

                     (a)  a Moomba operator or another person has notified the ACCC of an access dispute under Part 6 of the MSP Act; and

                     (b)  the notification of that dispute has not been withdrawn or taken to have been withdrawn, and the dispute has not been resolved either through arbitration or proceedings in the Federal Court of Australia;

the provisions of Part 6 of that Act are taken to continue in force, in relation to that access dispute, until the notification of the dispute is withdrawn or taken to have been withdrawn, or until the dispute is resolved.

(2)        A determination made under Part 6 of the MSP Act that is in force immediately before the commencement of this item continues in force after that commencement despite the repeal of that Part.

(3)        If an access dispute referred to in subitem (1) is resolved under Part 6 of the MSP Act as continued in force for the purpose of resolving that dispute by the making of a determination at a time after the commencement of this item, that determination continues in force despite the repeal of that Part.

(4)        For the purposes only of:

                     (a)  permitting the review by the Australian Competition Tribunal of a determination continued in force under subitem (2) or (3); and

                     (b)  facilitating the enforcement of a determination so continued in force; and

                     (c)  permitting appeals to the Federal Court of Australia from determinations so continued in force;

Part 6 of the MSP Act is taken to continue in force as if it had not been repealed.

(5)        In this item:

ACCC has the same meaning as in Part 6 of the MSP Act.

access dispute means an access dispute notified under subsection 75(1) or (4) of the MSP Act.

Moomba operator has the same meaning as in Part 6 of the MSP Act.

MSP Act means the Moomba-Sydney Pipeline System Sale Act 1994.

Petroleum (Submerged Lands) Act 1967

5  Subsection 5(1)

Insert:

Gas Pipelines Access Law has the same meaning as in subsection 5(1) of the Gas Pipelines Access (Commonwealth) Act 1998.

6  Subsection 5(1)

Insert:

gas pipelines access legislation has the same meaning as in the Gas Pipelines Access Law.

7  Subsection 5(1)

Insert:

Third Party Access Code means:

                     (a)  the National Third Party Access Code for Natural Gas Pipeline Systems, a copy of which, as agreed by the Council of Australian Governments on 7 November 1997, is set out in Schedule 2 to the Gas Pipelines Access (South Australia) Act 1997 of South Australia; or

                     (b)  if that Code is amended in accordance with Schedule 1 to that Act, that Code as so amended and in force for the time being;

as it applies in the area where the pipeline concerned is situated.

8  After subsection 9(1)

Insert:

          (1A)  Subject to section 73, if the gas pipelines access legislation of a State is not in force, whether with or without modifications, in the area referred to in subsection (1B), then, in spite of any law that is in force as a law of the Commonwealth in the adjacent area in respect of the State because of subsection (1), the Gas Pipelines Access (Commonwealth) Act 1998 applies as a law of the Commonwealth in that adjacent area.

          (1B)  For the purposes of subsection (1A), the area referred to in this subsection in relation to a State is the part of the area described in Schedule 2 under the heading that refers to that State that is on the landward side of the adjacent area in respect of that State.

9  After subsection 11(1)

Insert:

          (1A)  Subject to section 73, if the gas pipelines access legislation of the Northern Territory is not in force, whether with or without modifications, in the area referred to in subsection (1B), then, in spite of any law that is in force as a law of the Commonwealth in the adjacent area in respect of the Territory because of subsection (1), the Gas Pipelines Access (Commonwealth) Act 1998 applies as a law of the Commonwealth in that adjacent area.

          (1B)  For the purposes of subsection (1A), the area referred to in this subsection in relation to the Northern Territory is the part of the area described in Schedule 2 under the heading that refers to that Territory that is on the landward side of the adjacent area in respect of that Territory.

10  At the end of section 73

Add:

             (2)  Subsection (1) does not apply in relation to a pipeline if:

                     (a)  the pipeline is a covered pipeline within the meaning of the Third Party Access Code; or

                     (b)  the service provided by means of the pipeline is the subject of a declaration under section 44H of the Trade Practices Act 1974; or

                     (c)  the service provided by means of the pipeline is the subject of an undertaking accepted by the Australian Competition and Consumer Commission under section 44ZZA of the Trade Practices Act 1974.

             (3)  While a direction made by the joint Authority is in force in respect of a pipeline:

                     (a)  the pipeline cannot be a covered pipeline within the meaning of the Third Party Access Code; and

                     (b)  Part IIIA of the Trade Practices Act 1974 does not apply in relation to any service provided by means of the pipeline.

Trade Practices Act 1974

11  After section 4M

Insert:

4N  Extended application of Part IIIA

             (1)  Part IIIA, and the other provisions of this Act so far as they relate to Part IIIA, extend to services provided by means of facilities that are, or will be, wholly or partly within:

                     (a)  an external Territory; or

                     (b)  the adjacent area in respect of a State, of the Northern Territory, or of an external Territory, as specified in section 5A of the Petroleum (Submerged Lands) Act 1967.

             (2)  For the purposes of subsection (1), the adjacent area in respect of Queensland is to be taken, in accordance with subsection 5A(8) of the Petroleum (Submerged Lands) Act 1967, to include the Coral Sea area as defined in subsection 5A(7) of that Act.

             (3)  Nothing in subsection (1) affects the operation of section 15B of the Acts Interpretation Act 1901 in respect of the application of Part IIIA, and of the other provisions of this Act so far as they relate to Part IIIA, in any part of:

                     (a)  the coastal sea of Australia; or

                     (b)  the coastal sea of an external Territory;

that is on the landward side of each of the adjacent areas referred to in that subsection.

             (4)  For the purposes of this section:

service includes proposed service covered by Subdivision C of Division 2 of Part IIIA.

12  Subsection 29B(2)

Repeal the subsection, substitute:

             (2)  The Council may:

                     (a)  perform any function conferred on it by a law of the Commonwealth, or of a State or Territory; and

                     (b)  exercise any power:

                              (i)  conferred by that law to facilitate the performance of that function; or

                             (ii)  necessary or convenient to permit the performance of that function.

          (2A)  The Council must not, under subsection (2):

                     (a)  perform a function conferred on it by a law of a State or Territory; or

                     (b)  exercise a power that is so conferred;

unless the conferral of the function or power is in accordance with the Competition Principles Agreement.

13  Subsection 29B(3)

Omit “carrying out”, substitute “performing”.

14  After section 44D

Insert:

44DA  The principles in the Competition Principles Agreement have status as guidelines

             (1)  For the avoidance of doubt:

                     (a)  the requirement, under subsection 44G(3), that the Council apply the relevant principles set out in the Competition Principles Agreement in deciding whether an access regime is an effective access regime; and

                     (b)  the requirement, under subsection 44H(5), that the designated Minister apply the relevant principles set out in the Agreement in deciding whether an access regime is an effective access regime; and

                     (c)  the requirement, under subsection 44M(4), that the Council apply the relevant principles set out in the Agreement in deciding whether to recommend to the Commonwealth Minister that he or she should decide that an access regime is, or is not, an effective access regime; and

                     (d)  the requirement, under subsection 44N(2), that the Commonwealth Minister, in making a decision on a recommendation received from the Council, apply the relevant principles set out in the Agreement;

are obligations that the Council and the relevant Ministers must treat each individual relevant principle as having the status of a guideline rather than a binding rule.

             (2)  An effective access regime may contain additional matters that are not inconsistent with Competition Principles Agreement principles.

15  Paragraph 44G(3)(b)

After “must”, insert “, subject to section 44DA,”.

16  Paragraph 44H(5)(b)

After “must”, insert “, subject to section 44DA,”.

17  At the end of subsection 44M(1)

Add “or a proposed service”.

18  Subsection 44M(2)

After “the service”, insert “or proposed service”.

19  Subsection 44M(3)

After “the service” (wherever occurring), insert “, or proposed service”.

20  Paragraph 44M(4)(b)

After “must”, insert “, subject to section 44DA,”.

21  Subsection 44N(1)

After “the service” (wherever occurring), insert “or proposed service”.

22  Paragraph 44N(2)(b)

After “must”, insert “, subject to section 44DA,”.

23  Section 44P

After “service”, insert “or proposed service”.

24  Paragraph 44Q(a)

After “the service” (wherever occurring), insert “or proposed service”.

25  Section 44ZZM

Repeal the section, substitute:

44ZZM  Commission may perform functions and exercise powers under other access regimes

             (1)  The Commission may:

                     (a)  perform any function conferred on it by, and for the purposes of, a law of the Commonwealth, or of a State or Territory, that establishes an access regime; and

                     (b)  exercise any power:

                              (i)  conferred by that law to facilitate the performance of that function; or

                             (ii)  necessary or convenient to permit that function to be performed.

             (2)  The Commission must not, under subsection (1):

                     (a)  perform a function conferred on it by a law of a State or Territory; or

                     (b)  exercise a power that is so conferred;

unless the conferral of the function or power is in accordance with any relevant agreement between the Commonwealth and the State or Territory concerned.

26  After section 44ZZO

Insert:

44ZZOA  Tribunal may perform functions and exercise powers under other access regimes

             (1)  The Tribunal may:

                     (a)  perform any function:

                              (i)  conferred on it by, and for the purposes of, a law of the Commonwealth, or of a State or Territory, that establishes an access regime; and

                             (ii)  relating to the review of particular decisions under that law; and

                     (b)  exercise any power:

                              (i)  conferred by that law to facilitate the performance of that function; or

                             (ii)  necessary or convenient to permit that function to be performed.

             (2)  Without limiting the generality of subsection (1), a law made for the purposes of that subsection may:

                     (a)  specify the persons by whom, and the circumstances in which, such a review may be sought; and

                     (b)  specify the procedures to be followed by the Tribunal in conducting such a review.

             (3)  The Tribunal must not, under subsection (1):

                     (a)  perform a function conferred on it by, and for the purposes of, a law of a State or Territory; or

                     (b)  exercise a power that is so conferred;

unless the conferral of the function or power is in accordance with any relevant agreement between the Commonwealth and the State or Territory concerned.

27  Before section 88 of Division 1 of Part VII

Insert:

87D  Definitions

             (1)  In this Division:

industry code of practice means a code regulating the conduct of participants in an industry towards other participants in the industry or towards consumers in the industry.

minor variation, in relation to an authorization, is a single variation that does not involve a material change in the effect of the authorization.

             (2)  A reference in this Division to a proposal of the Commission is a reference to a notice of the Commission:

                     (a)  so far as the revocation of an authorization is concerned—under subsection 91B(3); and

                     (b)  so far as the revocation of an authorization and the substitution of another—under subsection 91C(3).

28  Subsections 88(7), (7A) and (8)

After “application by”, insert “or on behalf of”.

29  After subsection 88(8)

Insert:

       (8AA)  If:

                     (a)  the Commission grants an authorization to a corporation to engage in particular conduct under subsection (8); and

                     (b)  the particular conduct referred to in the authorization is conduct expressly required or permitted under a contract, an arrangement, an understanding or an industry code of practice;

then:

                     (c)  the authorization has effect as if it were also an authorization in the same terms to every other person named or referred to in the application for the authorization as a party or proposed party to the contract, arrangement, understanding or code; and

                     (d)  the authorization may be expressed so as to apply to or in relation to another person who becomes a party to the contract, arrangement, understanding or code at a time after the authorization is granted.

        (8AB)  For the purposes of subsection (8AA), a reference in that subsection to a contract, an arrangement, an understanding or an industry code of practice includes a reference to a proposed contract, a proposed arrangement, a proposed understanding or a proposed industry code of practice (as the case requires).

30  Subsections 88(8A) and (9)

After “application by”, insert “or on behalf of”.

31  Subsection 88(13)

After “proposed contract” (first occurring), insert “(including an application mentioned in subsection (8AA))”.

32  Paragraph 88(15)(a)

After “understanding”, insert “, industry code of practice”.

33  Subsection 89(1)

After “authorization”, insert “, a minor variation of an authorization, a revocation of an authorization or a revocation of an authorization and the substitution of another authorization,”.

34  Subsection 89(2)

Repeal the subsection, substitute:

             (2)  If the Commission receives such an application, the Commission must cause notice of the receipt of that application to be made public in such manner as it thinks fit.

35  Subsection 89(3)

Repeal the subsection, substitute:

             (3)  The Commission must keep a register of:

                     (a)  applications for authorizations; and

                     (b)  applications for minor variations of authorizations; and

                     (c)  applications for, or the Commission’s proposals for, the revocation of authorizations; and

                     (d)  applications for, or the Commission’s proposals for, the revocation of authorizations and the substitution of other authorizations;

including applications that have been withdrawn or proposals that have been abandoned.

36  Saving provision

Despite the repeal of subsection 89(3), the register of applications in place under that subsection immediately before the day item 35 commences continues to have effect on and after that date as if it had been created for the purposes of subsection 89(3) of the Trade Practices Act 1974 as amended by this Act.

37  Paragraphs 89(4)(a), (aa), (aaa) and (ab)

Repeal the paragraphs, substitute:

                     (a)  any document furnished to the Commission in relation to an application or proposal referred to in subsection (3);

                    (aa)  any draft determination, and any summary of reasons, by the Commission that is furnished to a person under section 90A, or under that section as applied by section 91C;

                    (ab)  any record of a conference made in accordance with subsection 90A(8), or with that subsection as applied by section 91C, and any certificate in relation to a conference given under subsection 90A(9), or under that subsection as so applied;

38  Paragraph 89(4)(b)

After “application”, insert “or proposal”.

39  Paragraph 89(4)(c)

After “application”, insert “or proposal”.

40  Subsection 89(5)

Omit “for an authorization or makes an oral submission to the Commission in relation to such an application”, substitute “or proposal referred to in subsection (3) or makes an oral submission to the Commission in relation to such an application or proposal”.

Note:       The heading to section 89 is altered by adding at the end “and the keeping of a register”.

41  After subsection 91(1A)

Insert:

          (1B)  A minor variation of an authorization comes into force on a day specified by the Commission in the determination making the variation, not being a day earlier than:

                     (a)  if neither paragraph (b) nor (c) applies—the end of the period in which an application may be made to the Tribunal for a review of the determination of the Commission in respect of the application for the minor variation; or

                     (b)  if such an application is made to the Tribunal and the application is not withdrawn—the day on which the Tribunal makes a determination on the review; or

                     (c)  if such an application is made to the Tribunal and the application is withdrawn—the day on which the application is withdrawn.

          (1C)  If an authorization (the prior authorization) is revoked and another authorization is made in substitution for it, that other authorization comes into force on the day specified for the purpose in that other authorization, not being a day earlier than:

                     (a)  if neither paragraph (b) nor (c) applies—the end of the period in which an application may be made to the Tribunal for a review of an application, or the Commission’s proposal, for the revocation of the prior authorization and the substitution of that other authorization; or

                     (b)  if such an application is made to the Tribunal and the application is not withdrawn—the day on which the Tribunal makes a determination on the review; or

                     (c)  if such an application is made to the Tribunal and the application is withdrawn—the day on which the application is withdrawn.

42  Paragraph 91(2)(a)

Repeal the paragraph, substitute:

                     (a)  for the purpose of enabling due consideration to be given to:

                              (i)  an application for an authorization; or

                             (ii)  an application for a minor variation of an authorization; or

                            (iii)  an application for the revocation of an authorization and the substitution of a new one; or

43  Paragraph 91(2)(b)

Omit “for an authorization”, substitute “referred to in paragraph (a)”.

44  Subsection 91(2)

Omit all the words after paragraph (c), substitute:

the Commission may at any time:

                     (d)  in the case of an application for an authorization—grant an authorization that is expressed to be an interim authorization; and

                     (e)  in the case of an application for a minor variation of an authorization—grant an authorization that is expressed to be an interim authorization dealing only with the matter the subject of the application for a variation; and

                      (f)  in the case of an application for the revocation of an authorization and the substitution of another—suspend the operation of the authorization sought to be revoked and grant an authorization that is expressed to be an interim authorization in substitution for the authorization suspended.

45  After subsection 91(2)

Insert:

       (2AA)  An authorization granted under paragraph 91(2)(d), (e) or (f) and expressed to be an interim authorization comes into force on such a date, not being a date before the grant of the interim authorization, as is specified by the Commission in the interim authorization.

        (2AB)  The Commission may, at any time, revoke an authorization that is expressed to be an interim authorization and, where that interim authorization is in substitution for an authorization the operation of which has been suspended, the revocation of the interim authorization has the effect of reviving the operation of the suspended authorization.

46  Subsection 91(4)

Repeal the subsection.

Note:       The heading to section 91 is altered by omitting “, revocation”.

47  Saving provision

If, before the commencement of item 46 :

                     (a)  the Commission had given notice under paragraph 91(4)(a) of the Trade Practices Act 1974 in relation to the authorization; but

                     (b)  the Commission had not made a determination under paragraph 91(4)(b) of that Act;

subsection 91(4) of that Act continues in force as if the amendments of that Act made by items 27 to 56 had not been made.

48  After section 91

Insert:

91A  Minor variations of authorizations

             (1)  A person to whom an authorization was granted, or another person on behalf of such a person, may apply to the Commission for a minor variation of the authorization.

             (2)  On receipt of an application, the Commission must, if it is satisfied that the variation sought in the application is a minor variation, by notice in writing given to any persons who appear to the Commission to be interested:

                     (a)  indicate the nature of the variation applied for; and

                     (b)  invite submissions in respect of the variation within a period specified by the Commission.

             (3)  After considering the application and any submissions received within the period specified, the Commission may make a determination in writing varying the authorization or dismissing the application.

             (4)  The Commission must not make a determination varying an authorization to which, if it were a new authorization, subsection 90(6) or (7) would apply, unless the Commission is satisfied that, in all the circumstances, the variation would not result, or would be likely not to result, in a reduction in the extent to which the benefit to the public of the authorization outweighs any detriment to the public caused by the authorization.

             (5)  The Commission must not make a determination varying an authorization to which, if it were a new authorization, subsection 90(8) or (9) would apply, unless the Commission is satisfied that, in all the circumstances, the variation would not result, or would be likely not to result, in a reduction in the benefit to the public that arose from the original authorization.

             (6)  Nothing in this section prevents a person from applying for 2 or more variations in the same application.

             (7)  If:

                     (a)  a person applies for 2 or more variations:

                              (i)  at the same time; or

                             (ii)  in such close succession that the variations could conveniently be dealt with by the Commission at the same time; and

                     (b)  the Commission is satisfied that the combined effect of those variations, if all were granted, would not involve a material change in the effect of the authorization;

the Commission may deal with all of those variations together as if they were a single minor variation.

             (8)  An application for a minor variation may be withdrawn by notice in writing to the Commission at any time.

91B  Revocation of an authorization

             (1)  A person to whom an authorization was granted, or another person on behalf of such a person, may apply to the Commission for a revocation of the authorization.

             (2)  On receipt of such an application, the Commission must, by notice in writing given to any persons who appear to the Commission to be interested:

                     (a)  indicate that the revocation of the authorization has been applied for; and

                     (b)  indicate the basis on which the revocation has been applied for; and

                     (c)  invite submissions in respect of the revocation within a period specified by the Commission.

             (3)  If, at any time after granting an authorization, it appears to the Commission that:

                     (a)  the authorization was granted on the basis of evidence or information that was false or misleading in a material particular; or

                     (b)  a condition to which the authorization was expressed to be subject has not been complied with; or

                     (c)  there has been a material change of circumstances since the authorization was granted;

the Commission may, by notice in writing given to any persons who appear to the Commission to be interested:

                     (d)  inform those persons that it is considering the revocation of the authorization; and

                     (e)  indicate the basis on which the revocation is being proposed; and

                      (f)  invite submissions in respect of the revocation within a period specified by the Commission.

             (4)  After considering any submissions invited under subsection (2) or (3) that are received within the period specified by the Commission under that subsection, the Commission may make a determination in writing:

                     (a)  revoking the authorization; or

                     (b)  deciding not to revoke the authorization.

             (5)  If an objection to the revocation is included in any submission

                     (a)  that was invited under subsection (2) or (3); and

                     (b)  that is received within the period specified by the Commission under that subsection;

the Commission must not make a determination revoking the authorization unless the Commission is satisfied that it would, if the authorization had not already been granted, be prevented under subsection 90(6), (7), (8) or (9) from making a determination granting the authorization in respect of which the revocation is sought.

             (6)  An application for revocation may be withdrawn by notice in writing to the Commission at any time.

             (7)  The Commission may disregard any objection that, in its opinion, is either vexatious or frivolous.

91C  Revocation of an authorization and substitution of a replacement

             (1)  A person to whom an authorization was granted, or another person on behalf of such a person, may apply to the Commission for a revocation of the authorization and the substitution of a new authorization for the one revoked.

             (2)  On receipt of such an application, the Commission must, by notice in writing given to any persons who appear to the Commission to be interested:

                     (a)  indicate that the revocation of the authorization, and the substitution of another authorization for it, has been applied for; and

                     (b)  indicate the basis upon which the revocation and substitution has been applied for and the nature of the substituted authorization so applied for; and

                     (c)  invite submissions in respect of the revocation and substitution within a period specified by the Commission.

             (3)  If, at any time after granting an authorization, it appears to the Commission that:

                     (a)  the authorization was granted on the basis of evidence or information that was false or misleading in a material particular; or

                     (b)  a condition to which the authorization was expressed to be subject has not been complied with; or

                     (c)  there has been a material change of circumstances since the authorization was granted;

the Commission may, by notice in writing given to any persons who appear to be interested:

                     (d)  inform those persons that it is considering the revocation of the authorization and the substitution of a new authorization; and

                     (e)  indicate the basis on which the revocation and substitution is being proposed and the nature of the substituted authorization proposed; and

                      (f)  invite submissions in respect of the proposed action within a period specified by the Commission.

             (4)  After considering any submissions invited under subsection (2) or (3) in relation to an authorization that are received within the period specified by the Commission under that subsection and after compliance with the requirements of section 90A in accordance with subsection (5), the Commission may make a determination in writing:

                     (a)  revoking the authorization and granting another such authorization that it considers appropriate, in substitution for it; or

                     (b)  deciding not to revoke the authorization.

             (5)  Before making a determination under subsection (4) in relation to an application, or a proposal, for the revocation of an authorization and the substitution of another, the Commission must comply with the requirements of section 90A.

             (6)  For the purposes of complying with section 90A in accordance with subsection (5), section 90A has effect:

                     (a)  as if the reference in subsection (1) to an application for an authorization (other than an application for an authorization under subsection 88(9)) were a reference to an application, or to a proposal, for the revocation of an authorization (other than an authorization granted on an application granted under subsection 88(9)) and the substitution of another authorization; and

                     (b)  as if references in other provisions of that section to an application, or to an application for an authorization, were references either to an application, or to a proposal, for the revocation of an authorization and the substitution of another; and

                     (c)  as if subsection 90A(2) had provided, in its operation in relation to a proposal for the revocation of an authorization and the substitution of another, that:

                              (i)  the reference to the applicant and to each other interested person were a reference only to each interested person; and

                             (ii)  each reference to the applicant or other person were a reference only to the other person.

             (7)  The Commission must not make a determination revoking an authorization and substituting another authorization unless the Commission is satisfied that it would not be prevented under subsection 90(6), (7), (8) or (9) from making a determination granting the substituted authorization, if it were a new authorization sought under section 88.

             (8)  An application for the revocation of an authorization and the substitution of another authorization may be withdrawn by notice in writing to the Commission at any time.

49  Subsection 101(1)

Repeal the subsection, substitute:

             (1)  A person dissatisfied with a determination by the Commission:

                     (a)  in relation to an application for an authorization or a minor variation of an authorization; or

                     (b)  in relation to the revocation of an authorization, or the revocation of an authorization and the substitution of another authorization;

may, as prescribed and within the time allowed by or under the regulations or under subsection (1B), as the case may be, apply to the Tribunal for a review of the determination.

       (1AA)  If:

                     (a)  the person applying under subsection (1) for review of a determination was the applicant for an authorization, or for the minor variation of an authorization, for the revocation of an authorization or for the revocation of an authorization and the substitution of another authorization; or

                     (b)  the Tribunal is satisfied that the person has a sufficient interest;

the Tribunal must review the determination.

50  Saving provision

Any application made by a person for review of a determination under subsection 101(1) of the Trade Practices Act 1974 as in force before the commencement of item 49 has effect, on and after the commencement of that item, as if it were an application for that determination made under subsection 101(1) of the Trade Practices Act 1974 as amended by that item.

51  Subsection 101(1B)

Repeal the subsection, substitute:

          (1B)  A presidential member may, on the application of a person concerned:

                     (a)  in an application for an authorization under subsection 88(9); or

                     (b)  in an application for a minor variation or a revocation of such an authorization; or

                     (c)  in an application for the revocation of such an authorization and the substitution of another authorization;

shorten the time allowed by or under the regulations within which an application under subsection (1) may be made for a review of the determination by the Commission of the application referred to in paragraph (a), (b) or (c) if the member is satisfied that special circumstances exist and that, in all the circumstances, it would not be unfair to do so.

52  Subsection 101(2)

After “(9)”, insert “, 91A(4), 91A(5), 91B(5) and 91C(7)”.

53  Subsection 102(1)

Repeal the subsection, substitute:

             (1)  On a review of a determination of the Commission in relation to:

                     (a)  an application for an authorization; or

                     (b)  an application for a minor variation of an authorization; or

                     (c)  an application for, or the Commission’s proposal for, the revocation of an authorization; or

                     (d)  an application for, or the Commission’s proposal for, the revocation of an authorization and the substitution of another authorization;

the Tribunal may make a determination affirming, setting aside or varying the determination of the Commission and, for the purposes of the review, may perform all the functions and exercise all the powers of the Commission.

54  Paragraph 102(1A)(b)

Repeal the paragraph, substitute:

                             (b)  the minor variation, or the revocation, of an authorization granted under that subsection; or

                             (c)  the revocation of an authorization granted under that subsection and the substitution of another authorization;

55  Subsection 102(2)

Repeal the subsection, substitute:

             (2)  A determination by the Tribunal affirming, setting aside or varying a determination of the Commission in relation to:

                     (a)  an application for an authorization; or

                     (b)  an application for a minor variation of an authorization; or

                     (c)  an application for, or the Commission’s proposal for, the revocation of an authorization; or

                     (d)  an application for, or the Commission’s proposal for, the revocation of an authorization and the substitution of another authorization;

is, for the purposes of this Act other than this Part, to be taken to be a determination of the Commission.

56  Paragraphs 157(1)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  a corporation makes an application to the Commission under section 88, 91A, 91B or 91C; or

                     (b)  the Commission proposes the revocation of an authorization under subsection 91B(3) or the revocation of an authorization and the substitution of another authorization under subsection 91C(3); or

 

 

[Minister's second reading speech made in

House of Representatives on 26 November 1997

Senate on 24 March 1998]

 

 

 

 

(224/97)