Title: Statutes Amendment (National Energy Laws) (Wholesale MarketMonitoring) Act 2024
Author: Office of Parliamentary Counsel
Last saved by: BAT-A16550-LegSAFTP
Category: numbered
Document comments: 12

No 12 of 2024 assented to 18.4.2024

Statutes Amendment (National Energy Laws) (Wholesale Market Monitoring) Act 2024—No 12 of 2024
Contents

No 12 of 2024—Statutes Amendment (National Energy Laws) (Wholesale Market Monitoring) Act 2024

Statutes Amendment (National Energy Laws) (Wholesale Market Monitoring) Act 2024—No 12 of 2024
Part 1—Preliminary

No 12 of 2024—Statutes Amendment (National Energy Laws) (Wholesale Market Monitoring) Act 2024
Preliminary—Part 1

Statutes Amendment (National Energy Laws) (Wholesale Market Monitoring) Act 2024—No 12 of 2024
Part 2—Amendment of National Electricity (South Australia) Act 1996

No 12 of 2024—Statutes Amendment (National Energy Laws) (Wholesale Market Monitoring) Act 2024
Amendment of National Electricity (South Australia) Act 1996—Part 2

Statutes Amendment (National Energy Laws) (Wholesale Market Monitoring) Act 2024—No 12 of 2024
Part 3—Amendment of National Gas (South Australia) Act 2008

No 12 of 2024—Statutes Amendment (National Energy Laws) (Wholesale Market Monitoring) Act 2024
Amendment of National Gas (South Australia) Act 2008—Part 3

South Australia
Statutes Amendment (National Energy Laws) (Wholesale Market Monitoring) Act 2024
An Act to amend the National Electricity (South Australia) Act 1996 and the National Gas (South Australia) Act 2008.

Contents
Part 1—Preliminary
1	Short title
2	Commencement
3	Amendment provisions
Part 2—Amendment of National Electricity (South Australia) Act 1996
4	Amendment of section 2—Definitions
5	Insertion of Subdivision heading
6	Amendment of section 18A—Definitions
7	Amendment of section 18B—Meaning of effective competition
8	Amendment of section 18C—AER wholesale market monitoring and reporting functions
9	Substitution of sections 18D and 18E
18D	Information to be treated as confidential
18E	Redaction of information
10	Insertion of Part 3 Division 1A Subdivisions 2 to 4
Subdivision 2—Use of general information gathering powers
18EA	Limits on use of section 28 information gathering powers
18EB	Matters to be considered before using section 28 information gathering powers
Subdivision 3—Market monitoring information notices and market monitoring information orders
18EC	Definitions
18ED	Urgent notices and urgent orders
18EE	Content of notices and orders
18EF	Notices and orders may be made for both past and future information
18EG	Making and serving notices and orders
18EH	AER must consult before making order
18EI	Publication of orders
18EJ	Opportunity to be heard before notice served
18EK	Compliance with notice
18EL	Compliance with order
18EM	Certification of compliance by statutory declaration
18EN	Subdivision does not limit powers under Division 3
Subdivision 4—Miscellaneous
18EO	Wholesale market monitoring guidelines
18EP	Review of wholesale market monitoring powers
11	Amendment of section 28—Power to obtain information and documents in relation to performance and exercise of functions and powers
12	Insertion of section 90EF
90EF	South Australian Minister to make initial Rules relating to wholesale market monitoring matters
Part 3—Amendment of National Gas (South Australia) Act 2008
13	Amendment of section 2—Definitions
14	Amendment of section 27—Functions and powers of the AER
15	Insertion of Chapter 2 Part 1 Division 1AA
Division 1AA—Wholesale gas markets—AER monitoring and reporting functions
Subdivision 1—Preliminary
30AA	Definitions
30AB	Meaning of effective competition
30AC	AER wholesale market monitoring and reporting functions
30AD	Information to be treated as confidential
30AE	Redaction of information
Subdivision 2—Use of general information gathering powers
30AF	Limits on use of section 42 information gathering powers
30AG	Matters to be considered before using section 42 information gathering powers
Subdivision 3—Market monitoring information notices and market monitoring information orders
30AH	Definitions
30AI	Urgent notices and urgent orders
30AJ	Content of notices and orders
30AK	Notices and orders may be made for both past and future information
30AL	Making and serving notices and orders
30AM	AER must consult before making order
30AN	Publication of orders
30AO	Opportunity to be heard before notice served
30AP	Compliance with notice
30AQ	Compliance with order
30AR	Certification of compliance by statutory declaration
30AS	Subdivision does not limit powers under Division 3
Subdivision 4—Miscellaneous
30AT	Wholesale market monitoring guidelines
30AU	Review of wholesale market monitoring powers
16	Amendment of section 42—Power to obtain information and documents in relation to performance and exercise of functions and powers
17	Insertion of section 294FE
294FE	South Australian Minister to make initial Rules relating to wholesale market monitoring matters

The Parliament of South Australia enacts as follows:
Part 1—Preliminary
1—Short title
This Act may be cited as the Statutes Amendment (National Energy Laws) (Wholesale Market Monitoring) Act 2024.
2—Commencement
This Act comes into operation on a day to be fixed by proclamation.
3—Amendment provisions
In this Act—
	(a)	a provision in Part 2 amends the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996; and
	(b)	a provision in Part 3 amends the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008.

Part 2—Amendment of National Electricity (South Australia) Act 1996
4—Amendment of section 2—Definitions
	(1)	Section 2(1)—after the definition of ECA amendments insert:
effective competition, for Part 3 Division 1A—see section 18B;
electricity contract, for Part 3 Division 1A—see section 18A;
	(2)	Section 2(1)—after the definition of final Rule determination insert:
financial risk management product, for Part 3 Division 1A—see section 18A;
	(3)	Section 2(1)—after the definition of market liquidity obligation insert:
market monitoring information notice, for Part 3 Division 1A—see section 18EC;
market monitoring information order, for Part 3 Division 1A—see section 18EC;
	(4)	Section 2(1)—after the definition of Minister of a participating jurisdiction insert:
monitored market, for Part 3 Division 1A—see section 18A;
	(5)	Section 2(1)—after the definition of regulatory payment insert:
relevant agreement, for Part 3 Division 1A—see section 18A;
5—Insertion of Subdivision heading
Before section 18A insert:
Subdivision 1—Preliminary
6—Amendment of section 18A—Definitions
Section 18A(1)—delete subsection (1) and substitute:
In this Division—
effective competition—see section 18B;
electricity contract means an agreement, entered into by a Registered participant, however described and whether coming into existence before or after the commencement of this section, that relates to a wholesale electricity market and includes an agreement—
	(a)	to supply electricity; or
	(b)	to purchase electricity; or
	(c)	for the transmission, distribution or storage of electricity; or
	(d)	relating to fuel and other inputs used in the generation of electricity; or
	(e)	relating to emissions produced or avoided in the generation of electricity; or
	(f)	to supply a wholesale demand response service;
financial risk management product means a contract or other arrangement, entered into by a Registered participant, to manage financial risk including, without limitation, risks associated with the following:
	(a)	price volatility in a wholesale electricity market;
	(b)	volatility in supply and demand in a wholesale electricity market;
	(c)	volatility in the price of fuels and other inputs used in the generation of electricity;
monitored market means—
	(a)	a wholesale electricity market; and
	(b)	a market for financial risk management products; and
	(c)	a market prescribed by the Regulations;
relevant agreement means—
	(a)	an electricity contract; and
	(b)	a financial risk management product.
7—Amendment of section 18B—Meaning of effective competition
Section 18B—delete "wholesale electricity market" and substitute:
monitored market
8—Amendment of section 18C—AER wholesale market monitoring and reporting functions
	(1)	Section 18C(1)(a)—delete paragraph (a) and substitute:
	(a)	to, in accordance with this Law and the Rules, regularly and systematically monitor and review the performance of monitored markets;
	(2)	Section 18C(1)(b) and (3)—delete "wholesale electricity market" wherever occurring and substitute in each case:
monitored market
	(3)	Section 18C(1)(b)—after subparagraph (iii) insert:
		and
	(iv)	there are features of the market that may be impacting detrimentally on the achievement of the national electricity objective;
	(4)	Section 18C(1)(c)—delete paragraph (c) and substitute:
	(c)	other monitoring or analysing functions, conferred on the AER by the Rules, relating to the following matters within a monitored market:
	(i)	offers;
	(ii)	prices, including forecast and actual prices and bidding.
	(5)	Section 18C(2)(b)(i)—delete "wholesale electricity market monitored" and substitute:
monitored market
	(6)	Section 18C—after subsection (4) insert:
	(5)	Before publishing a report prepared under subsection (2)(a) the AER must consult with relevant stakeholders.
9—Substitution of sections 18D and 18E
Sections 18D and 18E—delete the sections and substitute:
18D—Information to be treated as confidential
Information obtained by the AER under this Division is taken to have been given to the AER in confidence, whether or not a claim of confidentiality is made.
18E—Redaction of information
	(1)	When obtaining a relevant agreement or information about a relevant agreement for the purposes of a function under this Division, the AER must consider a request to omit information that would identify a party to the agreement who is not a Registered participant.
	(2)	The AER must grant the request unless satisfied that omitting the information is likely to materially affect the AER’s ability to undertake 1 or more functions under this Division.
10—Insertion of Part 3 Division 1A Subdivisions 2 to 4
Before Part 3 Division 1B insert:
Subdivision 2—Use of general information gathering powers
18EA—Limits on use of section 28 information gathering powers
	(1)	In undertaking a function under this Division the AER must not use the powers under section 28 in respect of a relevant agreement that ceased to have effect more than 5 years before the commencement of this section.
	(2)	The Regulations or the Rules may provide that the powers under section 28 must not be used for a function under this Division for 1 or more classes of relevant agreement.
18EB—Matters to be considered before using section 28 information gathering powers
Before using the powers under section 28 for a function under this Division, the AER must—
	(a)	be satisfied the information is reasonably required for the AER to carry out the function; and
	(b)	consider whether the information—
	(i)	is publicly available; or
	(ii)	can be obtained by the AER in another way.
Subdivision 3—Market monitoring information notices and market monitoring information orders
18EC—Definitions
In this Subdivision—
market monitoring information notice means a notice prepared and served by the AER in accordance with this Subdivision requiring the person named in the notice to do 1 or more of the following:
	(a)	give the AER the information or a relevant agreement specified in the notice;
	(b)	prepare, maintain and keep information specified in the notice in a manner and form specified in the notice;
market monitoring information order means an order made by the AER in accordance with this Subdivision requiring each person of a class specified in the order to do 1 or more of the following:
	(a)	give the AER the information or a relevant agreement specified in the order;
	(b)	prepare, maintain and keep information specified in the order in a manner and form specified in the order.
18ED—Urgent notices and urgent orders
The AER may specify a market monitoring information notice or a market monitoring information order as urgent if the AER reasonably believes that access to the relevant information is time critical.
18EE—Content of notices and orders
	(1)	A market monitoring information notice or a market monitoring information order must specify the following:
	(a)	the information that must be prepared, maintained and kept;
	(b)	the information or agreement that must be given to the AER;
	(c)	if the notice or order requires information to be prepared, maintained and kept—the AER’s reasons for requiring information to be prepared, maintained and kept;
	(d)	if the notice or order requires information or an agreement to be given to the AER—
	(i)	the reasons the AER requires the information or agreement; and
	(ii)	the date by which the information or agreement must be given to the AER;
	(e)	the period in which the notice or order operates.
	(2)	A market monitoring information notice or a market monitoring information order may specify the following:
	(a)	the form in which information or an agreement is to be given to the AER;
	(b)	the way the information or agreement is to be given to the AER.
18EF—Notices and orders may be made for both past and future information
	(1)	A market monitoring information notice or a market monitoring information order may apply to 1 or more of the following:
	(a)	a period before the notice was served or the order was made;
	(b)	a period after the notice was served or the order was made.
	(2)	A market monitoring information notice or a market monitoring information order must not be used to obtain a relevant agreement, or information about a relevant agreement, that ceased to have effect more than 5 years before the commencement of this section.
18EG—Making and serving notices and orders
	(1)	The AER may, if it considers it reasonably necessary for the performance of its functions under this Division—
	(a)	serve a market monitoring information notice on a person named in the notice; and
	(b)	make a market monitoring information order.
	(2)	The AER must, when considering if it is reasonably necessary to serve a market monitoring information notice or make a market monitoring information order—
	(a)	be satisfied the AER requires the information or agreement to carry out a wholesale market monitoring function; and
	(b)	consider the costs that are likely to be incurred by a person responding to the notice or order; and
	(c)	consider whether the information—
	(i)	is publicly available; or
	(ii)	can be obtained by the AER in another way.
	(3)	A market monitoring information notice or a market monitoring information order must not be used for the purpose of—
	(a)	investigating a breach or possible breach of this Law, the Regulations or the Rules; or
	(b)	commencing or conducting proceedings for a breach or possible breach of this Law, the Regulations or the Rules; or
	(c)	commencing or conducting an appeal from a decision in proceedings for a breach or possible breach of this Law, the Regulations or the Rules; or
	(d)	responding to an application for review of a decision of the AER under Part 6 Division 3A.
	(4)	A market monitoring information order must be made in accordance with the Rules.
	(5)	The Regulations or the Rules may provide that a market monitoring information notice or a market monitoring information order must not be used to obtain the following:
	(a)	1 or more classes of relevant agreement;
	(b)	information about 1 or more classes of relevant agreement.
18EH—AER must consult before making order
	(1)	Before making a market monitoring information order, the AER must consult the public.
	(2)	Consultation must be undertaken in accordance with the Rules.
18EI—Publication of orders
The AER must publish a market monitoring information order on the AER’s website as soon as practicable after the order is made.
18EJ—Opportunity to be heard before notice served
	(1)	Before serving a market monitoring information notice, the AER must give the person on whom the AER intends to serve the notice a draft of the notice and an opportunity to make a submission on the draft notice.
	(2)	A draft notice must state—
	(a)	whether the notice is to be issued as a standard notice or an urgent notice; and
	(b)	for an urgent notice—the reasons the AER believes access to the relevant information is time critical.
	(3)	A submission must be made—
	(a)	for a standard notice—within the longer of the following:
	(i)	20 business days after the draft notice is given to the person;
	(ii)	the period stated in the notice; or
	(b)	for an urgent notice—within the period stated in the draft notice, being at least 5 business days and not more than 10 business days after the draft notice is given to the person.
	(4)	A submission made within the time periods provided for in subsection (3) must be considered by the AER before serving a market monitoring information notice on a person.
18EK—Compliance with notice
	(1)	A person who is named in and served with a market monitoring information notice must comply with the notice.
Note—
This section is a civil penalty provision.
	(2)	If a market monitoring information notice names 2 or more related bodies corporate, a notice served on the holding company is taken to have been served on each of the named related bodies corporate.
18EL—Compliance with order
	(1)	A person who is a member of a class of persons specified in a market monitoring information order must comply with the order.
Note—
This section is a civil penalty provision.
	(2)	The AER may, by written notice, exempt a person from compliance with an order—
	(a)	in whole or part; and
	(b)	conditionally or unconditionally.
18EM—Certification of compliance by statutory declaration
	(1)	The AER may direct the recipient of a market monitoring information notice or market monitoring information order to verify that the recipient’s response to the notice or order is accurate and comprehensive by way of a statutory declaration.
	(2)	A direction may require the statutory declaration to be given by a named officer of the recipient or the holder of a specified office for the recipient.
	(3)	A direction must be given in the relevant market monitoring information notice or market monitoring information order.
	(4)	A failure to comply with a direction given under this section is taken to be a failure to comply with the relevant market monitoring information notice or market monitoring information order.
18EN—Subdivision does not limit powers under Division 3
This Subdivision does not limit the operation of Division 3.
Subdivision 4—Miscellaneous
18EO—Wholesale market monitoring guidelines
	(1)	The AER must prepare guidelines (wholesale market monitoring guidelines) about the following:
	(a)	the scope of the AER wholesale market monitoring functions;
	(b)	the collection of information for the purposes of this Division;
	(c)	the publication and reporting of information under this Division.
	(2)	Without limiting what may be included in wholesale market monitoring guidelines, the guidelines must include the following:
	(a)	information about the things the AER proposes to consider in assessing—
	(i)	competition in markets; and
	(ii)	the effective functioning of markets;
	(b)	a summary of the compliance obligations of persons who hold information;
	(c)	the processes the AER proposes to adopt in requesting information, including processes designed to minimise the time and resources Registered participants will devote to responding to a request;
	(d)	the type of information the AER expects to routinely request and how frequently it will request that information;
	(e)	the type of information the AER does not expect to request;
	(f)	classes of relevant agreements the AER does not expect to request;
	(g)	the formats in which the AER expects information to be submitted;
	(h)	a general outline of the way the AER will ensure that commercially sensitive information obtained for wholesale market monitoring functions is kept securely;
	(i)	other matters prescribed by the Regulations or the Rules.
	(3)	Before making wholesale market monitoring guidelines the AER must consult in accordance with the Rules.
	(4)	Wholesale market monitoring guidelines must be—
	(a)	made in accordance with the Rules; and
	(b)	published on the AER website within 6 months after commencement of this section.
18EP—Review of wholesale market monitoring powers
The MCE is to review the operation of this Division as soon as possible after the period of 4 years and 6 months after the commencement of this section.
11—Amendment of section 28—Power to obtain information and documents in relation to performance and exercise of functions and powers
Section 28(17)—before paragraph (a) insert:
	(aa)	the number of notices given under this section for the purposes of a function under Division 1A;
12—Insertion of section 90EF
After section 90ED insert:
90EF—South Australian Minister to make initial Rules relating to wholesale market monitoring matters
	(1)	The Minister in right of the Crown of South Australia administering Part 2 of the National Electricity (South Australia) Act 1996 of South Australia may make Rules for the following:
	(a)	the making of—
	(i)	market monitoring information orders; and
	(ii)	wholesale market monitoring guidelines;
	(b)	the way the AER consults—
	(i)	on the wholesale market monitoring guidelines under section 18EO(3); and
	(ii)	the public, under section 18EH, before making a market monitoring information order.
	(2)	Section 34(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.
	(3)	As soon as practicable after making Rules under subsection (1), the South Australian Minister must—
	(a)	publish notice of the making of the Rules in the South Australian Government Gazette; and
	(b)	make the Rules publicly available.
	(4)	The notice referred to in subsection (3)(a) must state—
	(a)	the date on which the Rules commence operation; or
	(b)	if different Rules will commence operation on different dates, those dates.
	(5)	The Rules made under subsection (1) may only be made on the recommendation of the MCE.
	(6)	Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

Part 3—Amendment of National Gas (South Australia) Act 2008
13—Amendment of section 2—Definitions
	(1)	Section 2(1)—after the definition of AER trial waiver functions insert:
AER wholesale market monitoring functions—the AER wholesale market monitoring functions are set out in section 30AC(1);
AER wholesale market reporting functions—the AER wholesale market reporting functions are set out in section 30AC(2);
	(2)	Section 2(1)—after the definition of Australian Energy Market Operator insert:
bilateral trading agreement, for Chapter 2 Part 1 Division 1AA—see section 30AA;
	(3)	Section 2(1)—after the definition of ECA amendments insert:
effective competition, for Chapter 2 Part 1 Division 1AA—see section 30AB;
	(4)	Section 2(1)—after the definition of final Rule determination insert:
financial risk management product, for Chapter 2 Part 1 Division 1AA—see section 30AA;
	(5)	Section 2(1)—after the definition of Gas Code insert:
gas contract, for Chapter 2 Part 1 Division 1AA—see section 30AA;
	(6)	Section 2(1)—after the definition of relevant adjudicator insert:
relevant agreement, for Chapter 2 Part 1 Division 1AA—see section 30AA;
	(7)	Section 2(1)—after the definition of VENCorp insert:
wholesale gas market, for Chapter 2 Part 1 Division 1AA—see section 30AA;
wholesale gas market participant, for Chapter 2 Part 1 Division 1AA—see section 30AA;
wholesale market monitoring guidelines, for Chapter 2 Part 1 Division 1AA—see section 30AA;
14—Amendment of section 27—Functions and powers of the AER
Section 27(1)—after paragraph (g) insert:
	(ga)	AER wholesale market monitoring functions and AER wholesale market reporting functions; and
15—Insertion of Chapter 2 Part 1 Division 1AA
After section 30 insert:
Division 1AA—Wholesale gas markets—AER monitoring and reporting functions
Subdivision 1—Preliminary
30AA—Definitions
In this Division—
bilateral trading agreement means an agreement, entered into outside a wholesale gas market, to supply covered gas—
	(a)	to a wholesale gas market participant; or
	(b)	to an end user—
	(i)	other than by a retailer; or
	(ii)	by a retailer in a quantity exceeding the amount prescribed by the wholesale market monitoring guidelines;
effective competition has the meaning given by section 30AB;
financial risk management product means a contract or other arrangement, entered into by a wholesale gas market participant, to manage financial risk including, without limitation, risks associated with the following:
	(a)	volatility in the price for 1 or more covered gases in a wholesale gas market;
	(b)	volatility in supply and demand in a wholesale gas market;
	(c)	volatility in the price of services involved in the extraction, refinement or processing, transportation or storage of 1 or more covered gases;
gas contract means an agreement, entered into by a wholesale gas market participant, however described and whether coming into existence before or after the commencement of this section that relates to 1 or more of the following:
	(a)	the supply of covered gas;
	(b)	the purchase of covered gas;
	(c)	the transportation of covered gas;
	(d)	the storage of covered gas;
	(e)	the refining or processing, including compression and blending, of covered gas;
	(f)	relating to emissions produced or avoided in the extraction, refining or processing, supply or use of covered gas;
	(g)	a function or process prescribed by the Regulations or the Rules;
relevant agreement means the following:
	(a)	a bilateral trading agreement;
	(b)	a financial risk management product;
	(c)	a gas contract;
wholesale gas market means—
	(a)	a wholesale market for covered gas, regulated under this Law and the Rules, including the following:
	(i)	a declared wholesale gas market;
	(ii)	a short term trading market;
	(iii)	a gas trading exchange; or
	(b)	a wholesale market for the transportation or storage of covered gas including a capacity auction; or
	(c)	a wholesale market prescribed by the Regulations;
wholesale gas market participant means person who is 1 or more of the following:
	(a)	a person who is registered on the Gas Bulletin Board;
	(b)	a person who supplies covered gas to or withdraws covered gas from a gas trading exchange administered by AEMO;
	(c)	a Registered participant;
	(d)	a member of a class of persons prescribed by the Regulations or the Rules;
wholesale market monitoring guidelines means the guidelines prepared under section 30AT.
30AB—Meaning of effective competition
For the purposes of this Division, the AER must, in assessing whether there is effective competition within a wholesale gas market, have regard to—
	(a)	whether—
	(i)	there are active competitors in the market and whether those competitors hold a reasonably sustainable position in the market; or
	(ii)	there is merely the threat of competition in the market; and
	(b)	whether prices are determined on a long term basis by underlying costs rather than the existence of market power, even though a wholesale gas market participant may hold a substantial degree of market power from time to time; and
	(c)	whether barriers to entry into the market are sufficiently low so that a substantial degree of market power may only be held by a wholesale gas market participant on a temporary basis; and
	(d)	whether there is independent rivalry in all dimensions of the price, product or service offered in the market; and
	(e)	other matters the AER considers relevant.
30AC—AER wholesale market monitoring and reporting functions
	(1)	The AER wholesale market monitoring functions are as follows:
	(a)	to, in accordance with this Law and the Rules, regularly and systematically monitor and review—
	(i)	the performance of wholesale gas markets; and
	(ii)	the operation and effect on wholesale gas markets of financial risk management products; and
	(iii)	whether the availability of financial risk management products has an effect on competition within, and the efficient functioning of, wholesale gas markets; and
	(iv)	bilateral trading agreements, including their effect on wholesale gas markets;
	(b)	in connection with paragraph (a)—to identify and analyse whether, for a particular wholesale gas market—
	(i)	there is effective competition within the market; and
	(ii)	there are features of the market that may be detrimental to effective competition within the market; and
	(iii)	there are features of the market that may be impacting detrimentally on the efficient functioning of the market and, if so, the extent of the inefficiency; and
	(iv)	there are features of the market that may be impacting detrimentally on the achievement of the national gas objective; and
	(v)	bilateral trading agreements have an impact on the efficient functioning of the market;
	(c)	other monitoring or analysing functions, conferred on the AER by the Rules, relating to the following matters within a wholesale gas market:
	(i)	offers;
	(ii)	prices, including forecast and actual prices and bidding.
	(2)	The AER wholesale market reporting functions are as follows:
	(a)	to prepare, at least once every 2 years, a report on the performance of the AER wholesale market monitoring functions (a monitoring report);
	(b)	to provide, as the AER thinks fit, advice to the MCE on the results of the performance of the AER wholesale market monitoring functions, including advice as to—
	(i)	whether the results identify a need for a legislative, regulatory or other response to address systemic or other features of a wholesale gas market that may—
	(A)	be detrimental to effective competition within the market; or
	(B)	detrimentally impact on the efficient functioning of the market; and
	(ii)	limitations on the AER’s ability to communicate with relevant persons about the performance of the AER wholesale market monitoring functions;
	(c)	other reporting requirements, conferred on the AER by the Rules, relating to the AER wholesale market monitoring functions.
	(3)	A monitoring report must, for a wholesale gas market monitored during the period to which the report relates—
	(a)	be for a monitoring period of at least 5 years; and
	(b)	contain a discussion and analysis of—
	(i)	the results of the performance of the AER wholesale market monitoring functions for the relevant period; and
	(ii)	features of the market with a detrimental impact on the efficient functioning of the market and the achievement of the national gas objective, including, but not limited to, significant barriers to entry; and
	(iii)	the effect of bilateral trading agreements on the efficient functioning of the market; and
	(iv)	structural features of the covered gas industry that generate concerns that there may not be effective competition within the market; and
	(v)	inefficiencies in the market, their causes and whether conditions in the market are such that the inefficiencies are likely to impact detrimentally, in the long term, on the efficient functioning of the market; and
	(vi)	the monitoring methodology applied and the results of indicators, tests and calculations performed; and
	(vii)	other matters of a long term nature relevant to effective competition within the market, including, for example—
	(A)	observations relating to planned increases in pipeline capacity; and
	(B)	trends in demand for covered gases; and
	(C)	trends in the uptake of alternative sources of energy.
	(4)	The AER must publish a monitoring report on its website.
	(5)	Before publishing a monitoring report the AER must consult with relevant stakeholders.
	(6)	Despite subsection (3)(a), a report prepared within the 5 years after the commencement of this section must relate to the period commencing on the day this section commences.
30AD—Information to be treated as confidential
Information obtained by the AER under this Division is taken to have been given to the AER in confidence, whether or not a claim of confidentiality is made.
30AE—Redaction of information
	(1)	When obtaining a relevant agreement or information about a relevant agreement for the purposes of a function under this Division, the AER must consider a request to omit information that would identify a party to the agreement who is not a wholesale gas market participant.
	(2)	The AER must grant the request unless satisfied that omitting the information is likely to materially affect the AER’s ability to undertake 1 or more functions under this Division.
Subdivision 2—Use of general information gathering powers
30AF—Limits on use of section 42 information gathering powers
	(1)	In undertaking a function under this Division the AER must not use the powers under section 42 in respect of a relevant agreement that ceased to have effect more than 5 years before the commencement of this section.
	(2)	The Regulations or the Rules may provide that the powers under section 42 must not be used for a function under this Division for 1 or more classes of relevant agreement.
30AG—Matters to be considered before using section 42 information gathering powers
Before using the powers under section 42 for a function under this Division, the AER must—
	(a)	be satisfied the information is reasonably required for the AER to carry out the function; and
	(b)	consider whether the information—
	(i)	is publicly available; or
	(ii)	can be obtained by the AER in another way.
Subdivision 3—Market monitoring information notices and market monitoring information orders
30AH—Definitions
In this Subdivision—
market monitoring information notice means a notice prepared and served by the AER in accordance with this Subdivision requiring the person named in the notice to do 1 or more of the following:
	(a)	give the AER the information or a relevant agreement specified in the notice;
	(b)	prepare, maintain and keep information specified in the notice in a manner and form specified in the notice;
market monitoring information order means an order made by the AER in accordance with this Subdivision requiring each person of a class specified in the order to do 1 or more of the following:
	(a)	give the AER the information or a relevant agreement specified in the order;
	(b)	prepare, maintain and keep information specified in the order in a manner and form specified in the order.
30AI—Urgent notices and urgent orders
The AER may specify a market monitoring information notice or a market monitoring information order as urgent if the AER reasonably believes that access to the relevant information is time critical.
30AJ—Content of notices and orders
	(1)	A market monitoring information notice or a market monitoring information order must specify the following:
	(a)	the information that must be prepared, maintained and kept;
	(b)	the information or agreement that must be given to the AER;
	(c)	if the notice or order requires information to be prepared, maintained and kept—the AER’s reasons for requiring information to be prepared, maintained and kept;
	(d)	if the notice or order requires information or an agreement to be given to the AER—
	(i)	the reasons the AER requires the information or agreement; and
	(ii)	the date by which the information or agreement must be given to the AER;
	(e)	the period in which the notice or order operates.
	(2)	A market monitoring information notice or a market monitoring information order may specify the following:
	(a)	the form in which information or an agreement is to be given to the AER;
	(b)	the way the information or agreement is to be given to the AER.
30AK—Notices and orders may be made for both past and future information
	(1)	A market monitoring information notice or a market monitoring information order may apply to 1 or more of the following:
	(a)	a period before the notice was served or the order was made;
	(b)	a period after the notice was served or the order was made.
	(2)	A market monitoring information notice or a market monitoring information order must not be used to obtain a relevant agreement, or information about a relevant agreement, that ceased to have effect more than 5 years before the commencement of this section.
30AL—Making and serving notices and orders
	(1)	The AER may, if it considers it reasonably necessary for the performance of its functions under this Division—
	(a)	serve a market monitoring information notice on a person named in the notice; and
	(b)	make a market monitoring information order.
	(2)	The AER must, when considering if it is reasonably necessary to serve a market monitoring information notice or make a market monitoring information order—
	(a)	be satisfied the AER requires the information or agreement to carry out a wholesale market monitoring function; and
	(b)	consider the costs that are likely to be incurred by a person responding to the notice or order; and
	(c)	consider whether the information—
	(i)	is publicly available; or
	(ii)	can be obtained by the AER in another way.
	(3)	A market monitoring information notice or a market monitoring information order must not be used for the purpose of—
	(a)	investigating a breach or possible breach of this Law, the Regulations or the Rules; or
	(b)	commencing or conducting proceedings for a breach or possible breach of this Law, the Regulations or the Rules; or
	(c)	commencing or conducting an appeal from a decision in proceedings for a breach or possible breach of this Law, the Regulations or the Rules; or
	(d)	responding to an application for review of a decision of the AER under Chapter 8 Part 5.
	(4)	A market monitoring information order must be made in accordance with the Rules.
	(5)	The Regulations or the Rules may provide that a market monitoring information notice or a market monitoring information order must not be used to obtain the following:
	(a)	1 or more classes of relevant agreement;
	(b)	information about 1 or more classes of relevant agreement.
30AM—AER must consult before making order
	(1)	Before making a market monitoring information order, the AER must consult the public.
	(2)	Consultation must be undertaken in accordance with the Rules.
30AN—Publication of orders
The AER must publish a market monitoring information order on the AER’s website as soon as practicable after the order is made.
30AO—Opportunity to be heard before notice served
	(1)	Before serving a market monitoring information notice, the AER must give the person on whom the AER intends to serve the notice a draft of the notice and an opportunity to make a submission on the draft notice.
	(2)	A draft notice must state—
	(a)	whether the notice is to be issued as a standard notice or an urgent notice; and
	(b)	for an urgent notice—the reasons the AER believes access to the relevant information is time critical.
	(3)	A submission must be made—
	(a)	for a standard notice—within the longer of the following:
	(i)	20 business days after the draft notice is given to the person;
	(ii)	the period stated in the notice; or
	(b)	for an urgent notice—within the period stated in the draft notice, being at least 5 business days and not more than 10 business days after the draft notice is given to the person.
	(4)	A submission made within the time periods provided for in subsection (3) must be considered by the AER before serving a market monitoring information notice on a person.
30AP—Compliance with notice
	(1)	A person who is named in and served with a market monitoring information notice must comply with the notice.
Note—
This section is a civil penalty provision.
	(2)	If a market monitoring information notice names 2 or more related bodies corporate, a notice served on the holding company is taken to have been served on each of the named related bodies corporate.
30AQ—Compliance with order
	(1)	A person who is a member of a class of persons specified in a market monitoring information order must comply with the order.
Note—
This section is a civil penalty provision.
	(2)	The AER may, by written notice, exempt a person from compliance with an order—
	(a)	in whole or part; and
	(b)	conditionally or unconditionally.
30AR—Certification of compliance by statutory declaration
	(1)	The AER may direct the recipient of a market monitoring information notice or market monitoring information order to verify that the recipient’s response to the notice or order is accurate and comprehensive by way of a statutory declaration.
	(2)	A direction may require the statutory declaration to be given by a named officer of the recipient or the holder of a specified office for the recipient.
	(3)	A direction must be given in the relevant market monitoring information notice or market monitoring information order.
	(4)	A failure to comply with a direction given under this section is taken to be a failure to comply with the relevant market monitoring information notice or market monitoring information order.
30AS—Subdivision does not limit powers under Division 3
This Subdivision does not limit the operation of Division 3.
Subdivision 4—Miscellaneous
30AT—Wholesale market monitoring guidelines
	(1)	The AER must prepare guidelines about the following:
	(a)	the scope of the AER wholesale market monitoring functions;
	(b)	the collection of information for the purposes of this Division;
	(c)	the publication and reporting of information under this Division.
	(2)	Without limiting what may be included in wholesale market monitoring guidelines, the guidelines must include the following:
	(a)	information about the things the AER proposes to consider in assessing—
	(i)	effective competition in wholesale gas markets; and
	(ii)	the effective functioning of wholesale gas markets;
	(b)	a summary of the compliance obligations of persons who hold information;
	(c)	the processes the AER proposes to adopt in requesting information, including processes designed to minimise the time and resources wholesale gas market participants will devote to responding to a request;
	(d)	the type of information the AER expects to routinely request and how frequently it will request that information;
	(e)	the type of information the AER does not expect to request;
	(f)	classes of relevant agreements the AER does not expect to request;
	(g)	the formats in which the AER expects information to be submitted;
	(h)	a general outline of the way the AER will ensure that commercially sensitive information obtained for wholesale market monitoring functions is kept securely;
	(i)	other matters prescribed by the Regulations or the Rules.
	(3)	Before making wholesale market monitoring guidelines the AER must consult in accordance with the Rules.
	(4)	Wholesale market monitoring guidelines must be—
	(a)	made in accordance with the Rules; and
	(b)	published on the AER website within 6 months after commencement of this section.
30AU—Review of wholesale market monitoring powers
The MCE is to review the operation of this Division as soon as possible after the period of 4 years and 6 months after the commencement of this section.
16—Amendment of section 42—Power to obtain information and documents in relation to performance and exercise of functions and powers
Section 42(17)—before paragraph (a) insert:
	(aa)	the number of notices given under this section for the purposes of a function under Division 1AA;
17—Insertion of section 294FE
After section 294FD insert:
294FE—South Australian Minister to make initial Rules relating to wholesale market monitoring matters
	(1)	The South Australian Minister may make Rules for the following:
	(a)	the making of—
	(i)	market monitoring information orders; and
	(ii)	wholesale market monitoring guidelines;
	(b)	the way the AER consults—
	(i)	on the wholesale market monitoring guidelines under section 30AT(3); and
	(ii)	the public, under section 30AM, before making a market monitoring information order.
	(2)	The Rules made under subsection (1) may only be made on the recommendation of the MCE.
	(3)	Section 74(3) applies to Rules made under subsection (1) in the same way as it applies to Rules being made by the AEMC.
	(4)	As soon as practicable after making Rules under subsection (1), the South Australian Minister must—
	(a)	publish notice of the making of the Rules in the South Australian Government Gazette; and
	(b)	make the Rules publicly available.
	(5)	The notice referred to in subsection (4)(a) must state—
	(a)	the date on which the Rules commence operation; or
	(b)	if different Rules will commence operation on different dates, those dates.
	(6)	Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.