Will the operator of the GBB and GSOO be entitled to my confidential information? What type of information will the operator be seeking? Will my confidential information be adequately protected?
The Gas Services Information Bill was recently passed by the Western Australian Parliament, bringing WA's proposed Gas Bulletin Board (GBB) and Gas Statement of Opportunities (GSOO) closer to realisation.
The GBB and GSOO have their origins in the recommendations of the Gas Supply and Emergency Management Committee established in the aftermath of the Varanus Island explosion and are primarily intended to assist government and industry stakeholders manage and mitigate gas supply disruptions within WA's gas market. In addition, the GBB and GSOO have also been touted as facilitating efficient investment and competition in WA's gas market.
While there is broad-based support from WA's gas market participants for the idea of the GBB and GSOO, gas market participants should be aware of the implications of the Bill and the accompanying regulations and rules (that are still being developed) for their confidential information.
The GBB and the GSOO
The GBB and GSOO are both concerned with providing information about the supply, demand, transmission and storage capacity of natural gas (and potentially other fuels) in WA. The GBB will be in the form of a website and will be focused on the short- to near-term, while the GSOO will be a statement published periodically focusing on the medium and long term. The GBB might also set out information relating to offers to buy and sell natural gas and natural gas transmission capacity.
The Independent Market IMO (IMO), which is currently responsible for the operation and development of WA's wholesale electricity market, has been selected as the initial operator for both the GBB and GSOO.
Industry reports suggest that the GBB will be operational by July 2013. The first GSOO is expected to be published within a similar timeframe.
Can the IMO tap me for my confidential information?
Under the regulations, any person who qualifies as a gas market participant under the Bill will be obliged to provide information for the GBB or GSOO if requested by the IMO.
Gas market participants include:
- service providers (a person who owns, controls or operates or intends to own, control or operate a pipeline or scheme pipeline or any part of a pipeline or scheme pipeline);
- users (a person entitled under contract or an access determination to a pipeline service (eg. haulage) from a service provider);
- producers of natural gas;
- storage providers (a person who owns, operates or controls a facility for storing natural gas or processable gas for injection into a pipeline); and
- any person prescribed by the regulations as a gas market participant.
Failure to comply with a request for information from the IMO or providing information to the IMO in bad faith will attract penalties.
What kind of information will the IMO be requesting?
The Bill provides for regulations to be made dealing with the information that might be sought by the IMO for the purposes of the GBB and GSOO.
Curiously, the regulations may also permit the IMO to request information that is not specified in the regulations or rules. According to the explanatory memorandum accompanying the Bill, this right is to provide the IMO with flexibility to request additional relevant information. However, given the subjective nature of "relevance" it will give the IMO an extended mandate to request information from gas market participants.
Will my confidential information be protected by the IMO?
The Bill sets out as a default provision in relation to the use and disclosure of protected information the relevant sections of the National Gas (South Australia) Act 2008 (SA) (National Gas Law), which will apply until regulations controlling the use and disclosure of protected information have been made.
Certain of the circumstances under which the National Gas Law permits the disclosure of protected information appear commonplace (eg. where the prior consent of the disclosing party has been obtained, or where the disclosure is required by an applicable law or for the purposes of court proceedings).
However, certain of the other circumstances appear broad and within the subjective determination of the IMO. For instance, the IMO may disclose protected information if:
- the protected information does not permit the identification of the person to whom the information relates;
- the disclosure is necessary for the safety, reliability or security for the supply of natural gas or a pipeline;
- the disclosure is necessary for the proper operation of a regulated gas market; or
- the public benefit of the permitted disclosure outweighs the detriment caused by the disclosure.
If an unauthorised disclosure is made by the IMO (including its officers and employees), the IMO will only be liable for civil monetary liability if the act or omission that led to the unauthorised disclosure was made in bad faith or through negligence.
Significantly, the Bill sets out that the Minister must be satisfied that gas market participants have been adequately consulted on the making of the regulations to apply to WA before these regulations can be made.
WA gas market participants should follow developments in relation to the GBB and GSOO and ensure that they participate in the consultative process concerning the proposed regulations covering the use and disclosure of protected information.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.