Australian Energy Market Amendment (Gas Legislation) Act 2007 (45 of 2007)
Schedule 1 Amendments commencing on Proclamation
Part 1 Amendments
Australian Energy Market Act 2004
48 After section 13
Insert:
13A Commonwealth consent to conferral of functions etc. on Commonwealth Minister
(1) A State/Territory energy law may confer functions or powers, or impose duties, on the Commonwealth Minister for the purposes of that law.
Note 1: Section 13C sets out when such a law imposes a duty on the Commonwealth Minister.
Note 2: Functions and powers conferred, and duties imposed, on the National Competition Council by a State/Territory energy law are dealt with under section 29BA of the Trade Practices Act 1974.
Note 3: Functions and powers conferred, and duties imposed, on the Australian Energy Regulator by a State/Territory energy law are dealt with under section 44AI of the Trade Practices Act 1974.
Note 4: Functions and powers conferred, and duties imposed, on the Australian Competition Tribunal by a State/Territory energy law 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 a State/Territory energy law 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 a State/Territory energy law 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.
13B How duty is imposed
Application
(1) This section applies if a State/Territory energy law purports to impose a duty on the Commonwealth Minister.
Note: Section 13C sets out when such a law 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 13A 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 13A.
13C When a State/Territory energy law imposes a duty
For the purposes of sections 13A and 13B, a State/Territory energy law 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.
13D No Commonwealth tax consequences for certain transfers of assets and liabilities etc.
(1) No consequences arise, for the purposes of a prescribed law of the Commonwealth relating to taxation, in respect of:
(a) a federal tax-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, a federal tax-exempt matter.
(2) In this Act:
federal tax - 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:
(i) a State/Territory gas law; or
(ii) the National Gas (Commonwealth) Law; or
(iii) the National Gas (Commonwealth) Regulations; or
(iv) the Offshore Western Australian Pipelines (Commonwealth) Law; or
(v) the Offshore Western Australian Pipelines (Commonwealth) Regulations; or
(b) for the purpose of the separation of certain activities from other activities of a person as required by:
(i) a State/Territory gas law; or
(ii) the National Gas (Commonwealth) Law; or
(iii) the National Gas (Commonwealth) Regulations; or
(iv) the Offshore Western Australian Pipelines (Commonwealth) Law; or
(v) the Offshore Western Australian Pipelines (Commonwealth) Regulations;
and for no other purpose.
(3) In paragraph (a) of the definition of federal tax - exempt matter in subsection (2), natural gas has the same meaning as in the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2007 of South Australia.
13E 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) a State/Territory tax-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, a State/Territory tax-exempt matter.
(2) In this Act:
State/Territory tax-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:
(i) the National Gas (Commonwealth) Law; or
(ii) the National Gas (Commonwealth) Regulations; or
(iii) the Offshore Western Australian Pipelines (Commonwealth) Law; or
(iv) the Offshore Western Australian Pipelines (Commonwealth) Regulations; or
(b) for the purpose of the separation of certain activities from other activities of a person as required by:
(i) the National Gas (Commonwealth) Law; or
(ii) the National Gas (Commonwealth) Regulations; or
(iii) the Offshore Western Australian Pipelines (Commonwealth) Law; or
(iv) the Offshore Western Australian Pipelines (Commonwealth) Regulations;
and for no other purpose.
(3) In paragraph (a) of the definition of State/Territory tax - exempt matter in subsection (2), natural gas has the same meaning as in the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2007 of South Australia.
13F Legislative instruments
(1) To avoid doubt, an instrument made or having effect under:
(a) the National Electricity (Commonwealth) Law; or
(b) the National Electricity (Commonwealth) Regulations; or
(c) a prescribed uniform energy law applied as a law of the Commonwealth;
is taken not to be, and never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(2) To avoid doubt, an instrument made or having effect under:
(a) the National Gas (Commonwealth) Law; or
(b) the National Gas (Commonwealth) Regulations; or
(c) the Offshore Western Australian Pipelines (Commonwealth) Law; or
(d) the Offshore Western Australian Pipelines (Commonwealth) Regulations;
is taken not to be a legislative instrument for the purposes of the Legislative Instruments Act 2003.
13G Jurisdiction of the Federal Court
(1) The Federal Court is invested with jurisdiction with respect to civil and criminal matters arising under:
(a) the National Electricity (Commonwealth) Law and Regulations; or
(b) the National Gas (Commonwealth) Law and Regulations.
(2) If a provision of:
(a) the National Electricity (Commonwealth) Law; or
(b) the National Gas (Commonwealth) Law;
whether expressly or by implication, authorises a civil or criminal proceeding to be instituted in the Federal Court in relation to a matter, that provision is taken to vest the Court with jurisdiction in that matter.
13H Jurisdiction of the Supreme Court of Western Australia
(1) The Supreme Court of Western Australia is invested with jurisdiction with respect to civil and criminal matters arising under the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations.
(2) If a provision of the Offshore Western Australian Pipelines (Commonwealth) Law, whether expressly or by implication, authorises a civil or criminal proceeding to be instituted in the Supreme Court of Western Australia in relation to a matter:
(a) that provision is taken to vest the Court with jurisdiction in that matter; and
(b) the jurisdiction so vested is not limited by any limits to which any other jurisdiction of the Court may be subject.
13J Jurisdiction of a State or Territory court under a prescribed uniform energy law
(1) The courts of a State or Territory are invested with jurisdiction with respect to civil and criminal matters arising under a prescribed uniform energy law of the State or Territory applied as a law of the Commonwealth.
(2) If a provision of a prescribed uniform energy law of a State or Territory applied as a law of the Commonwealth, whether expressly or by implication, authorises a civil or criminal proceeding to be instituted in a court of the State or Territory in relation to a matter:
(a) that provision is taken to vest the court with jurisdiction in that matter; and
(b) the jurisdiction so vested is not limited by any limits to which any other jurisdiction of the court may be subject.