Energy Legislation Amendment Act 2006 (60 of 2006)

Schedule 1   Gas amendments

Gas Pipelines Access (Commonwealth) Act 1998

1   Section 13

Repeal the section, substitute:

13 Commonwealth consent to conferral of functions etc. on Commonwealth Minister

(1) The gas pipelines access legislation of a State or Territory may confer functions or powers, or impose duties, on the Commonwealth Minister for the purposes of that legislation.

Note 1: Section 13B sets out when such legislation imposes a duty on the Commonwealth Minister.

Note 2: Functions and powers conferred, and duties imposed, on the NCC under the gas pipelines access legislation of a State or Territory are dealt with under section 29BA of the Trade Practices Act 1974.

Note 3: Functions and powers conferred, and duties imposed, on the ACCC or the Australian Competition Tribunal under the gas pipelines access legislation of a State or Territory are dealt with under section 44ZZM of the Trade Practices Act 1974.

(2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by the gas pipelines access legislation of a State or Territory to the extent to which:

(a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth Minister; or

(b) the authorisation would otherwise exceed the legislative power of the Commonwealth.

(3) The Commonwealth Minister cannot perform a duty or function, or exercise a power, under the gas pipelines access legislation of a State or Territory unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.

13A How duty is imposed

Application

(1) This section applies if the gas pipelines access legislation of a State or Territory purports to impose a duty on the Commonwealth Minister.

Note: Section 13B sets out when such legislation imposes a duty on the Commonwealth Minister.

State or Territory legislative power sufficient to support duty

(2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:

(a) imposing the duty is within the legislative powers of the State or Territory concerned; and

(b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commonwealth Minister.

Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 13 to the imposition of the duty by that law).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.

(4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.

(5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:

(a) is within the legislative powers of the Commonwealth; and

(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commonwealth Minister.

(6) Subsections (1) to (5) do not limit section 13.

13B When the gas pipelines access legislation of a State or Territory imposes a duty

For the purposes of sections 13 and 13A, the gas pipelines access legislation of a State or Territory imposes a duty on the Commonwealth Minister if:

(a) the law confers a function or power on the Commonwealth Minister; and

(b) the circumstances in which the function or power is conferred give rise to an obligation on the Commonwealth Minister to perform the function or to exercise the power.