Gas Legislation (Miscellaneous Amendments) Act 2001

Gas Legislation (Miscellaneous Amendments) Act 2001

An Act to amend the Gas Act 2000 and the Gas Pipelines Act 2000

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Gas Legislation (Miscellaneous Amendments) Act 2001 .

2.   Commencement

(1)  Section 30 commences on a day to be proclaimed.

(2)  The remaining provisions of this Act commence on the day on which this Act receives the Royal Assent.

PART 2 - Gas Act 2000 Amended

3.   Principal Act

In this Part, the Gas Act 2000 is referred to as the Principal Act.

4.    Section 3 amended (Interpretation)

Section 3 of the Principal Act is amended as follows:

(a) by omitting the definition of accepted safety case from subsection (1) ;

(b) by inserting the following definition after the definition of authorised officer in subsection (1) :

code means a gas code issued under section 38A ;

(c) by omitting the definition of contestable customer from subsection (1) and substituting the following definition:

contestable customer means a consumer of gas –

(a) whose gas consumption, or rate of gas consumption, exceeds a limit specified in the regulations; or

(b) who is a foundation customer;

(d) by inserting "and includes a pipeline, or class of pipelines, declared under section 3(3) of the Gas Pipelines Act 2000 to be treated as not being a transmission pipeline for the purposes of that Act," after "consumption," in the definition of distribution system in subsection (1) ;

(e) by omitting "system;" from paragraph (c) of the definition of distribution system in subsection (1) and substituting "system; or";

(f) by inserting the following paragraph after paragraph (c) in the definition of distribution system in subsection (1) :

(d) a pipeline or class of pipelines which, under subsection (3) , is to be treated as not forming part of a distribution system for the purposes of this Act;

(g) by inserting the following definition after the definition of facility in subsection (1) :

foundation customer means a person declared under section 6A to be a foundation customer;

(h) by omitting the definition of gas from subsection (1) and substituting the following definition:

gas means natural gas or any other gaseous fuel but does not include –

(a) liquefied petroleum gas, except in Part 4 ; or

(b) a gaseous fuel declared by the regulations to be excluded from the operation of this Act;

(i) by omitting the definition of licence from subsection (1) and substituting the following definition:

licence means a licence granted and in force under this Act for one or more of the following:

(a) to sell gas by retail;

(b) to construct a distribution system;

(c) to operate a distribution system;

(d) any other operations for which a licence is required by the regulations;

(j) by omitting the definition of non-contestable customer from subsection (1) and substituting the following definition:

non-contestable customer means a consumer of gas who is not a contestable customer;

(k) by inserting the following definition after the definition of standard gas installation in subsection (1) :

supply means the delivery of gas by means of a distribution system to a customer's gas supply point;

(l) by omitting from subsection (2) "and supply";

(m) by inserting the following subsection after subsection (2) :

(3)  The Governor may, by order published in the Gazette, declare that a pipeline or class of pipelines is to be treated as –

(a) forming part of a distribution system for the purposes of this Act; or

(b) not forming part of a distribution system for the purposes of this Act.

5.    Section 3A inserted

After section 3 of the Principal Act , the following section is inserted in Part 1:

3A.   Application of Act

(1)  Subject to subsection (2) , this Act does not apply to a gas installation or gas appliance, or class of gas installations or gas appliances, used or installed before the day on which the Gas Legislation (Miscellaneous Amendments) Act 2001 received the Royal Assent.

(2)  The regulations may provide that a provision of this Act applies to a gas installation or gas appliance, or class of gas installations or gas appliances, used or installed before the day on which the Gas Legislation (Miscellaneous Amendments) Act 2001 received the Royal Assent if the gas installation or gas appliance, or class of gas installations or gas appliances, is modified after that day.

6.    Section 6A inserted

After section 6 of the Principal Act , the following section is inserted in Part 1:

6A.   Minister may declare foundation customers

Within 3 months after the day on which the Gas Legislation (Miscellaneous Amendments) Act 2001 received the Royal Assent, the Minister may, by order published in the Gazette, declare that a person is a foundation customer, if the Minister is satisfied that it is in the interests of the gas supply industry in Tasmania to make the order.

7.    Section 8 amended (Functions of Director of Gas)

Section 8(1)(b) of the Principal Act is amended by omitting "to customers".

8.    Section 16 amended (Annual report)

Section 16 of the Principal Act is amended by inserting after subsection (1) the following subsection:

(1A)  An annual report must include any information required by the Minister.

9.    Section 22 repealed

Section 22 of the Principal Act is repealed.

10.    Section 24 amended (Consideration of application for issue of licence)

Section 24(2)(c) of the Principal Act is amended by inserting "the Director of Gas Safety has provided a certificate that, in his or her opinion," after "system,".

11.    Section 29 amended (Licence conditions)

Section 29(1)(c) of the Principal Act is amended by omitting "reasonable".

12.    Section 30 amended (Licences conferring exclusive franchise)

Section 30 of the Principal Act is amended by inserting after subsection (7) the following subsections:

(8)  The Minister may, by order published in the Gazette, revoke or amend an order made under subsection (1) .

(9)  If the Minister revokes an order made under subsection (1) , a licence issued under section 24 in accordance with the order remains in force, but is no longer to be taken as granting an exclusive franchise.

13.    Sections 31 , 32 and 33 substituted

Sections 31 , 32 and 33 of the Principal Act are repealed and the following sections are substituted:

31.   Obligation to sell

(1)  A licence held by a gas entity conferring an exclusive franchise to sell gas to non-contestable customers may be subject to conditions determined by the Director of Gas –

(a) requiring the licensee to sell, or offer to sell, gas to any non-contestable customer or class of non-contestable customers; and

(b) otherwise relating to the sale, or offer for sale, of any such gas.

(2)  Any conditions determined by the Director of Gas must be consistent with –

(a) a gas-pricing order; and

(b) any conditions required by the Minister under section 30(3)(d) .

32.   Offence to contravene licence conditions

(1)  A gas entity must comply with any conditions to which its licence is subject.

Penalty:  Fine not exceeding 500 penalty units and, in the case of a continuing offence, a further fine not exceeding 100 penalty units for each day during which the offence continues.

(2)  If a court finds a gas entity guilty of an offence against subsection (1) , it may in addition to, or instead of, imposing a penalty under that subsection make one or more of the following orders:

(a) an order requiring the gas entity to comply with any conditions to which its licence is subject;

(b) an order directing the gas entity to do, or refrain from doing, anything;

(c) such other order as the court considers desirable to protect the interests of consumers of gas.

33.   Notice of licence decisions

The Director of Gas must –

(a) give an applicant for the issue or renewal of a licence –

(i) written notice of the Director's decision on the application; and

(ii) if the decision is to refuse to issue or renew a licence, the reasons for the decision; and

(b) give public notification of the Director's decision.

14.    Section 38 amended (Standard terms and conditions for retailing and distribution of gas)

Section 38 of the Principal Act is amended by inserting after subsection (1) the following subsection:

(1A)  A gas entity must publish in the Gazette and in a daily newspaper circulating in the area in which the gas entity is supplying gas a notice setting out any standard terms and conditions fixed by the gas entity.

15.    Part 3, Division 2A inserted

After section 38 of the Principal Act , the following Division is inserted in Part 3:

Division 2A - Gas codes

38A.   Gas codes

(1)  The Director of Gas may issue gas codes.

(2)  A code may provide for any matter relating or incidental to the regulation of the gas supply industry.

(3)  A code must be consistent with this Act and the public interest.

(4)  If there is an inconsistency between a code and this Act, the code is invalid to the extent of the inconsistency.

(5)  A code may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the code.

(6)  A code may authorise any matter to be from time to time determined, applied or regulated by –

(a) the Director of Gas; or

(b) the Tribunal; or

(c) a tribunal established under the code.

38B.   Publication and availability of code

(1)  As soon as practicable after a gas code is issued, the Director of Gas must publish the code in the Gazette.

(2)  The Director must provide a person with a copy of a code or part of a code if the person –

(a) requests it; and

(b) pays to the Director a reasonable fee determined by the Director.

(3)  The Director must allow a person to peruse a code, free of charge, at the office of the Director at any time within the hours during which that office is normally open.

38C.   Review, amendment and replacement of code

(1)  The Director of Gas may review a code –

(a) at his or her discretion; or

(b) on the request of any person.

(2)  The Director must review a code when required to do so by the Minister.

(3)  The Director may amend, rescind or substitute a code as specified in, and in accordance with, the code.

16.    Part 4: Heading amended

Part 4 of the Principal Act is amended by omitting "SAFE OPERATION OF REGULATED ACTIVITIES" from the heading to that Part and substituting "SAFETY OF INFRASTRUCTURE, INSTALLATIONS AND APPLIANCES".

17.   Part 4, Division 1AA inserted

Before Division 1 of Part 4 of the Principal Act, the following Division is inserted in Part 4:

Division 1AA - Interpretation

49A.   Interpretation

In this Part,

gas includes liquefied petroleum gas.

18.    Section 50 amended (General requirements for safe operation)

Section 50(2) of the Principal Act is amended by omitting "issued under this Division" and substituting "referred to in section 66 ".

19.    Section 54 amended (Safety and operating plan)

Section 54(4) of the Principal Act is amended by inserting "certified" after "unless a".

20.    Section 76 amended (Offence to use Type B appliances)

Section 76 of the Principal Act is amended by omitting paragraph (a) and substituting the following paragraph:

(a) unless the gas installation of which the appliance forms a part has been accepted by the Director of Gas Safety in accordance with this Division; or

21.    Part 4, Division 5: Heading amended

Division 5 of Part 4 of the Principal Act is amended by omitting "Safety case for" from the heading to that Division and substituting "Acceptance of".

22.    Section 77 amended (Acceptance of gas installations)

Section 77 of the Principal Act is amended as follows:

(a) by omitting subsection (1) and substituting the following subsection:

(1)  This section does not apply to any repair or maintenance work on a gas installation.

(b) by omitting from subsection (2) "a safety case for";

(c) by omitting from subsection (4) "the safety case for";

(d) by omitting from subsection (5)(a) "the safety case for";

(e) by omitting from subsection (5)(b) "the safety case for";

(f) by omitting from subsection (5)(c) "the safety case for";

(g) by omitting from subsection (7) "a safety case for";

(h) by omitting from subsection (8) "a safety case for".

23.    Section 79 substituted

Section 79 of the Principal Act is repealed and the following sections are substituted:

79.   Offence to alter approved gas appliance

A person must not modify an approved gas appliance, unless the Director of Gas has given written approval to the modification.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 200 penalty units; or

(b) a natural person, a fine not exceeding 50 penalty units.

79A.   Prohibition of supply of appliances or components

(1)  The Director of Gas, by notice published in the Gazette and in a newspaper circulating generally in the State, may prohibit the supply or sale of an appliance or component, or appliances or components of a specified class.

(2)  A prohibition under subsection (1) takes effect from the date of publication of the notice or from such later date as is specified in that notice.

(3)  The Director, by notice in writing given to a person, may prohibit that person from supplying or selling an appliance or component or appliances or components of a specified class.

(4)  A notice under subsection (3) takes effect from the date of the notice or such later date as is specified in the notice.

(5)  The Director may exercise a power of prohibition under this section only if it appears to the Director that –

(a) the appliance or component or an appliance or component of the specified class is, or is likely to become, by reason of its design or construction, unsafe to use; and

(b) prohibition of the supply or sale of the appliance or component or of all appliances or components of the specified class is warranted by reason of the risk of death or injury to any person or damage to any property arising out of the use of that appliance or component, or appliances or components of that class.

(6)  The Director may withdraw a prohibition made under subsection (1) by notice published in the Gazette and in a newspaper circulating generally in the State.

(7)  The Director may withdraw a prohibition made under subsection (3) by notice given to the person to whom the notice of prohibition was given.

(8)  This section applies whether or not the appliance or component or class of appliances or components was accepted by the Director.

79B.   Offence to disobey prohibition

(1)  A person must not, while a prohibition under section 79A(1) remains in force, contravene that prohibition.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 200 penalty units; or

(b) a natural person, a fine not exceeding 50 penalty units.

(2)  A person must not, while a prohibition under section 79A(3) remains in force, contravene that prohibition.

Penalty:  In the case of –

(a) a body corporate, a fine not exceeding 200 penalty units; or

(b) a natural person, a fine not exceeding 50 penalty units.

79C.   Recall of appliances or components

(1)  The Director of Gas, by notice in writing served on a person –

(a) whose business is, or includes, the supply or sale of appliances or components; and

(b) who has supplied or sold an appliance or component, or an appliance or component of a specified class –

may require the person to take, within a period specified in the notice, any action specified in the notice.

(2)  The Director may make a requirement under this section only if it appears to the Director that –

(a) an appliance or component, or an appliance or component of a specified class, is, or is likely to become, by reason of its design or construction, unsafe to use; or

(b) specific action is necessary –

(i) to make an appliance or a component or appliances or components of a specified class safe to use; or

(ii) to render safe the use of an appliance or a component or appliances or components of a specified class.

(3)  The action specified in the notice may consist of or include –

(a) sending a written request to the person to whom the appliance or component, or an appliance or component of the specified class, was supplied or sold to return the appliance or component to the place at which it was supplied or sold; and

(b) placing an advertisement in a form approved by the Director in a newspaper or newspapers specified by the Director, for a period or periods specified by the Director, requesting all persons to whom an appliance or component of the specified class was supplied or sold to return the appliance or component to the place at which it was supplied or sold; and

(c) making the appliance or component, or appliances or components of the specified class, safe to use or rendering safe the use of that appliance or component, or appliances or components, in the manner specified in the notice; and

(d) refunding the purchase price on return of the appliance or component, if it is not practicable to render the appliance or component safe or if the supplier elects not to do so.

(4)  The Director may alter or revoke a requirement under this section by notice given to the person of whom the requirement was made.

(5)  This section applies whether or not the Director accepts the appliance or component or class of appliances or components.

24.    Section 84 amended (Power to carry out work on public land)

Section 84(6) of the Principal Act is amended by omitting "Director of Gas" and substituting "Tribunal".

25.    Section 98 amended (Power of entry)

Section 98(1) of the Principal Act is amended by inserting "the audit of a safety and operating plan or the inspection of any document relating to a safety and operating plan," after "Act,".

26.    Section 117 substituted

Section 117 of the Principal Act is repealed and the following section is substituted:

117.   Exemptions

(1)  The Governor, by order, may declare that the provisions of this Act, or such of the provisions of this Act as are specified in the order, do not have effect in respect of –

(a) a specified person or class of persons, or do not have effect to such extent as is specified; or

(b) a specified facility or class of facilities, or do not have effect to such extent as is specified; or

(c) a specified appliance or class of appliances, or do not have effect to such extent as is specified; or

(d) a specified gas installation or class of gas installations, or do not have effect to such extent as is specified; or

(e) specified gas fitting work or a class of gas fitting work, or work relating to a gas installation or class of gas installations, or do not have effect to such extent as is specified.

(2)  An order under subsection (1)  –

(a) may specify the period during which the order is to remain in force; and

(b) may provide that its operation is subject to such terms and conditions as are specified in the order.

(3)  A person to whom an order under this section applies must comply with any terms and conditions to which the operation of the order is subject.

Penalty:   In the case of –

(a) a body corporate, a fine not exceeding 500 penalty units; or

(b) a natural person, a fine not exceeding 25 penalty units.

27.    Section 129A inserted

After section 129 of the Principal Act , the following section is inserted in Part 8:

129A.   Director of Gas may take court action on behalf of customers

Where a customer or a class of customers could take any action in a court or tribunal to enforce a right under, or to enforce compliance with, this Act or a code, the Director of Gas may take that action on behalf of the customer or class of customers.

PART 3 - Gas Pipelines Act 2000 Amended

28.   Principal Act

In this Part, the Gas Pipelines Act 2000 is referred to as the Principal Act.

29.    Section 3 amended (Interpretation)

Section 3 of the Principal Act is amended as follows:

(a) by omitting the definition of pipeline from subsection (1) and substituting the following definition:

pipeline means the whole or any part of a pipeline for conveying natural gas, petroleum or another regulated substance from a point at or near the place of its production to another place or other places, or the whole or any part of a pipeline that forms part of a system of pipelines for that purpose, and includes –

(a) tanks, machinery and equipment necessary for, or associated with, its operation; and

(b) a pipeline or class of pipelines which under subsection (3) is to be treated as a transmission pipeline for the purposes of this Act –

but does not include the following:

(c) a pipeline located wholly within the site of an industrial plant;

(d) a pipeline that forms part of a gas distribution system within a city, town or other centre of population or industry;

(e) any part of a pipeline referred to in paragraph (c) or (d) for which a licence is required under the Petroleum (Submerged Lands) Act 1982 of Tasmania or the Petroleum (Submerged Lands) Act 1967 of the Commonwealth;

(f) a pipeline or class of pipelines which under subsection (3) is to be treated as not being a transmission pipeline for the purposes of this Act;

(b) by inserting ", or construct and operate," after "operate" in the definition of pipeline licence in subsection (1) ;

(c) by inserting the following definitions after the definition of regulations in subsection (1) :

supply pipeline means a pipeline, or proposed pipeline, that delivers or is capable of delivering, natural gas directly to a customer;

transmission pipeline means a pipeline, or class of pipelines, declared under subsection (3) to be treated as a transmission pipeline for the purposes of this Act;

(d) by inserting the following subsection after subsection (2) :

(3)  The Governor may, by order published in the Gazette, declare that a pipeline or class of pipelines is to be treated as –

(a) a transmission pipeline for the purposes of this Act; or

(b) not being a transmission pipeline for the purposes of this Act.

30.    Section 3 amended (Interpretation)

Section 3 of the Principal Act is amended by inserting after subsection (3) the following subsections:

(4)  Where –

(a) an order under subsection (3) would have the effect that a supply pipeline is to be treated as a transmission pipeline for the purposes of this Act; and

(b) there is in force an exclusive franchise under section 30 of the Gas Act 2000 in respect of the area in which the supply pipeline is situated –

the Governor is not to make the order unless the person to whom the exclusive franchise has been granted consents to the order.

(5)  The consent of a person to whom an exclusive franchise has been granted under section 30 of the Gas Act 2000 is only required under subsection (4) during the period of that exclusive franchise.

31.    Section 12 amended (Consideration of application)

Section 12 of the Principal Act is amended as follows:

(a) by omitting paragraph (d) from subsection (2) ;

(b) by inserting the following subsections after subsection (2) :

(3)  The Director of Gas must not grant a pipeline licence which authorises the construction or operation of a supply pipeline unless an order has been made under section 3(3) declaring the supply pipeline to be treated as a transmission pipeline for the purposes of this Act.

(4)  The Director of Gas must not grant a pipeline licence unless the Director of Gas Safety has provided a certificate that, in his or her opinion, the pipeline or pipeline facility has, or will have, the necessary ability to convey or process gas, petroleum or another regulated substance safely.

32.    Section 90 amended (Undertaking work near pipelines)

Section 90 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "near a pipeline" and substituting "that is subject to an easement granted to a pipeline licensee for the purposes of a pipeline";

(b) by omitting the penalty from subsection (1) and substituting the following penalty:

Penalty:  Fine not exceeding 50 penalty units or, if the pipeline has been uncovered, fine not exceeding 200 penalty units.

(c) by omitting subsection (3) and substituting the following subsection:

(3)  It is a defence to a charge for an offence against subsection (1) if –

(a) the defendant can show that the authority sought from the pipeline operator was unreasonably refused; or

(b) in case of an emergency, it was not practicable to obtain the authority of the pipeline operator as required by that subsection and the pipeline operator was notified as soon as practicable after the work was carried out.

33.    Section 92 substituted

Section 92 of the Principal Act is repealed and the following section is substituted:

92.   Sensitive developments and attenuation distances

(1)  In this section,

Commission means the Resource Planning and Development Commission.

(2)  For the purpose of limiting potential impacts on public health and safety and damage to pipelines, the Minister must, as soon as practicable after the day on which the Gas Legislation (Miscellaneous Amendments) Act 2001 received the Royal Assent, and may from time to time, make an order specifying –

(a) any changes in the use of land or any developments which the Minister considers to be sensitive; and

(b) attenuation distances in respect of those changes in use or developments.

(3)  The order may have effect by reference to –

(a) the area of land in which a proposed pipeline is to be constructed; or

(b) any area of land specified in a permit under the Land Use Planning and Approvals Act 1993 as subject to an easement to be acquired for the purposes of the pipeline.

(4)  An order under this section may require the Commission, in consultation with the relevant planning authority, to amend any relevant planning scheme or special planning order under the Land Use Planning and Approvals Act 1993 to give effect to the terms of the order.

(5)  Where the Commission amends a planning scheme or special planning order under subsection (4)  –

(a) the Land Use Planning and Approvals Act 1993 does not apply to the amendment; and

(b) the amendment is taken to have come into operation on the date on which the order under this section was made; and

(c) the Commission must give notice of the amendment –

(i) in a daily newspaper circulating generally in the area to which the planning scheme or special planning order relates; and

(ii) at the office of the Commission and the office of the planning authority which administers the planning scheme or special planning order.

(6)  The relevant planning authority must –

(a) refer to the pipeline licensee any development that is within a relevant attenuation distance from a pipeline and is stated in the order to be sensitive; and

(b) unless it considers there are compelling reasons for not doing so, give effect to any advice given by the pipeline licensee in granting approval to a development.

(7)  If the pipeline licensee or the person proposing the development is dissatisfied with any decision made by a planning authority under this section –

(a) the pipeline licensee or other person may appeal against the decision to the Tribunal; and

(b) the appeal is to be commenced, heard and determined in accordance with the Resource Management and Planning Appeal Tribunal Act 1993 .

(8)  No appeal lies from the decision of the Tribunal on an appeal under this section.

34.    Section 99 amended (Regulations)

Section 99 of the Principal Act is amended as follows:

(a) by inserting the following paragraph after paragraph (b) in subsection (2) :

(ba) specify standards of quality that are to apply to gas; and

(b) by inserting the following subsection after subsection (3) :

(4)  The regulations may –

(a) be of general application or limited in application according to the persons, areas, times or circumstances to which they are expressed to apply; or

(b) provide that a matter or thing in respect of which regulations may be made is to be determined, regulated or prohibited according to the discretion of the Minister, the Director of Gas or the Director of Gas Safety; or

(c) refer to or incorporate, wholly or partially and with or without modification, any standard or other document prepared or published by a body referred to in the regulations, as in force from time to time or as in force at a particular time.

35.   Substitution of "certified" for "validated"

Each of the provisions of the Principal Act specified in Column 1 of Schedule 1 is amended by omitting "validated" on the number of occurrences specified in Column 2 of that Schedule and substituting "certified".

36.   Substitution of "certification" for "validation"

Each of the provisions of the Principal Act specified in Column 1 of Schedule 2 is amended by omitting "validation" on the number of occurrences specified in Column 2 of that Schedule and substituting "certification".

SCHEDULE 1 - Substitution of "certified" for "validated"

Section 35

SCHEDULE 2 - Substitution of "certification" for "validation"

Section 36

[Second reading presentation speech made in:

House of Assembly on 22 NOVEMBER 2001

Legislative Council on 27 NOVEMBER 2001]