Part 3 Liquefied petroleum gas and other gases
34 Prohibition of unlicensed distribution of LPG and other gases
A person must not operate a distribution system for the purpose of conveying to any other person:(a) liquefied petroleum gas, or(b) any other gas (other than natural gas) prescribed by the regulations for the purposes of this section,otherwise than under the authority of a distributor’s licence.Maximum penalty: 500 penalty units (in the case of a corporation) and 50 penalty units (in any other case).
Subject to any conditions imposed by or under this Act, a distributor’s licence authorises its holder, and any other person specified in the licence, to operate the distribution system so specified for the purpose of conveying to other persons any gas so specified.
An application for a licence or for the transfer of a licence:(a) must be accompanied by such fee as may be determined by the Minister, and(b) must contain such information as may be determined by the Minister, and(c) must be lodged at the office of the Tribunal.
(1) Before determining an application for a licence or for the transfer of a licence, the Minister must cause notice of the application to be published in the Gazette and in a daily newspaper circulating throughout New South Wales.(2) The notice must indicate:(a) the nature of the licence to which the application relates, and(b) the identity of the proposed holder of the licence, and(c) the district in which the licence, if granted or transferred, would operate, and(d) where submissions on the application should be lodged, and(e) the time (being at least 40 days from the date on which the notice is first published) within which any such submissions should be lodged, and(f) such other matters as may be prescribed by the regulations.(3) The Minister must give due consideration to matters arising from any submissions under this section.
38 Determination of applications
(1) The Minister may determine an application for a licence or for the transfer of a licence by granting or transferring the licence (either unconditionally or subject to conditions of the kind referred to in section 40) or by refusing the application.(2) An application may be refused on any of the following grounds:(a) that the proposed holder of the licence fails to satisfy such technical or prudential criteria as have been adopted by the Minister to determine whether a person is able to operate a viable business as a licensed distributor,(b) such grounds as may be prescribed by the regulations,(c) such grounds as the Minister considers relevant, having regard to the interests of consumers and the need to promote a competitive market for the gas concerned, to prevent misuse of market power and to ensure the security and reliability of the New South Wales supply system for gas (other than natural gas).(3) The Minister must endeavour to determine an application within 6 months after it is made.
Subject to the conditions imposed on it, a licence remains in force until it is cancelled.
(1) A licence is subject to the following conditions:(a) the conditions imposed by this Act and the regulations,(b) such other conditions (not inconsistent with those imposed by this Act and the regulations) as the Minister may from time to time impose in relation to the licence.(2) Without limitation, the Minister may impose the following kinds of conditions on a licence:(a) a condition specifying the period for which the licence is to remain in force,(b) a condition requiring the holder of the licence to exercise its functions under this Act in accordance with specified guidelines or subject to specified restrictions, including conditions as to:(i) the district within which those functions may be exercised, and(ii) the implementation of Government policy on community service obligations to small retail customers,(c) a condition requiring the holder of the licence to continue to satisfy such technical or prudential criteria as have been adopted by the Minister to determine whether a person is able to operate a viable business as a licensed distributor,(d) a condition requiring the holder of the licence to maintain specified insurance cover in respect of specified risks,(e) a condition requiring the holder of the licence:(i) to prepare, and submit to the Minister for approval, a plan setting out (in accordance with guidelines established by the Minister) the holder’s policies, practices and procedures with respect to the conduct of its affairs under the licence, and(ii) to conduct its affairs under the licence in accordance with the plan as so approved,(f) a condition requiring the holder of the licence to furnish to the Minister (at such times and in respect of such periods as the Minister may determine) such information as the Minister may determine to enable the Minister to ascertain whether or not the holder is complying with the conditions imposed on the licence by this Act or the regulations or by the Minister.(3) The Minister may not impose a condition on a licence of the kind referred to in subsection (2) (b) (ii) unless the Minister has entered into an undertaking, on behalf of the State, to indemnify the holder of the licence with respect to the costs incurred by the holder in complying with the requirements of the condition.
41 Variation of conditions of licences
(1) The Minister may vary the conditions of a licence, either on his or her own motion or on the application of the holder of the licence.(2) In the case of an application to vary the conditions of a licence so as to extend a distribution district, section 37 applies to the application in the same way as it applies to an application for a licence.(3) An application to vary the conditions of a licence so as to extend a distribution district must be accompanied by such fee as may be determined by the Minister.
42 Enforcement of licences by the Minister
(1) The Minister may do either or both of the following:(a) the Minister may impose a monetary penalty not exceeding $100,000 on the holder of a licence,(b) the Minister may cancel a licence.(2) Action may be taken under this section only if the holder of the licence has knowingly contravened:(a) the requirements of this Act or the regulations, or(b) the conditions of the licence.(3) Nothing in this section prevents a licence from being cancelled at the request of its holder.
42A Enforcement of licences by Tribunal
(1) The Tribunal may impose a monetary penalty on the holder of a licence.(2) The Tribunal may, instead of imposing a monetary penalty, require the holder of the licence to take such action as the Tribunal considers appropriate in the circumstances, including (for example) requiring the sending of information to customers or the publication of notices in newspapers.(3) The Tribunal may not require action to be taken under subsection (2) by the holder of a licence if the cost of that action would exceed the monetary penalty that the Tribunal could impose under this section on the holder.(4) If the Tribunal requires information to be sent to a customer under subsection (2), the holder of the licence may satisfy that requirement by sending the information to the customer with the next account or bill to be sent to the customer by the holder or, if the holder is sending other information to that customer before the next account or bill, with that other information.(5) Action may be taken under this section only if the holder of the licence has knowingly contravened the conditions of the licence.(6) The monetary penalty that the Tribunal may impose under this section must not exceed $10,000 for the first day on which the contravention concerned occurs and a further $1,000 for each subsequent day (not exceeding 30 days) on which the contravention continues.(7) The Tribunal must not take action under this section unless:(a) the Tribunal has considered whether the contravention has been or is likely to be the subject of any other penalty or action or any claim for compensation, and is satisfied that it is nevertheless appropriate to take action under this section, and(b) the Tribunal has considered the action that the holder of the licence has taken or is likely to take in respect of the contravention and the cost to the holder in taking that action, and is satisfied that it is nevertheless appropriate to take action under this section.(8) The Tribunal is required to consider the seriousness of the contravention concerned in determining to impose a monetary penalty under this section.(9) The Tribunal must not take action under this section in respect of a contravention if the Minister has already taken action under section 42 in respect of the contravention.(10) Nothing in this section affects the Minister’s powers under section 42 in respect of a contravention, whether or not the Tribunal has already taken action under this section in respect of the contravention.
43 Holder of licence to be notified of proposed action
(1) The Minister must not take action under section 40, 41 or 42, or the Tribunal must not take action under section 42A, unless:(a) notice of the proposed action has been given to the holder of the licence, and(b) the holder of the licence has been given a reasonable opportunity to make submissions with respect to the proposed action, and(c) the Minister or Tribunal has given due consideration to any such submissions.(2) In addition, the Minister must not take action under section 42, or the Tribunal must not take action under section 42A, in respect of any contravention referred to in that section unless:(a) notice of the contravention has been given to the holder of the licence, and(b) the holder of the licence has been given a reasonable opportunity to discontinue the contravention and take such steps (if any) as are specified in the notice to remedy the effects of the contravention, and(c) the holder of the licence has failed to discontinue the contravention or take those steps.(3) Subsection (1) does not apply to action taken at the request of the holder of the licence.
(1) The Minister may require the holder of a licence to pay to the Minister such amount, by way of an annual licence fee, as the Minister may from time to time determine on the advice of the Treasurer.(2) The amount of an annual licence fee must be determined in such a manner that the amount payable by the holder of the licence for a particular year is equivalent to the amount estimated by the Treasurer as being the cost to the State of administering this Act during that year in relation to that holder.(3) It is a condition of a licence that the holder of the licence must comply with all relevant requirements under this section.
45 Appeals against decisions concerning licences
(1) A person aggrieved by any of the following decisions of the Minister may appeal to the Supreme Court against the decision:(a) a decision cancelling a licence,(b) a decision imposing a condition on a licence (other than a condition imposed when the licence is granted),(c) a decision varying the conditions of a licence,(d) a decision refusing an application for the transfer of a licence,(e) a decision imposing a monetary penalty on the holder of a licence.(2) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the original decision was made, may be given on the appeal.(3) For the purposes of an appeal, the Minister may certify in writing that a specified policy applies to the subject matter of the appeal.(4) In deciding an appeal to which such a certificate relates, the Supreme Court is required to apply the policy so certified, except to the extent to which the application of that policy would be contrary to law.(5) The decision of the Supreme Court in respect of an appeal is taken to be the decision of the Minister and is to be given effect to accordingly.
45A Review of certain decisions concerning licences
(1) The holder of a licence who is aggrieved by a decision of the Tribunal to take action under section 42A in relation to the holder of the licence may apply to the Administrative Decisions Tribunal for a review of the decision.(2) Section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997 does not apply to such a decision of the Tribunal.
(1) A register of licences is to be kept at the office of the Tribunal.(2) The register is to contain details of all licences that are granted or transferred, including details concerning the conditions imposed on them by the Minister, and is also to contain details of all determinations made by the Minister with respect to licences and their conditions.(3) The register is to be kept available for inspection by members of the public, free of charge, during normal office hours.(4) Copies of entries in the register are to be made available to members of the public, at cost, during normal office hours.