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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Water Industry Competition
Amendment Bill 2011
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Water Industry Competition Act 2006
No 104 3
Schedule 2 Amendment of other legislation 14
b2011-120-94.d10
New South Wales
Water Industry Competition
Amendment Bill 2011
No , 2011
A Bill for
An Act to make miscellaneous amendments to the Water Industry Competition Act
2006, Water Industry Competition (General) Regulation 2008 and Local
Government (General) Regulation 2005.
Clause 1 Water Industry Competition Amendment Bill 2011
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Water Industry Competition Amendment Act 2011. 3
2 Commencement 4
(1) This Act commences on a day or days to be appointed by proclamation, 5
except as provided by subsection (2). 6
(2) Schedule 1 [24][26] commence on the date of assent to this Act. 7
Page 2
Water Industry Competition Amendment Bill 2011
Amendment of Water Industry Competition Act 2006 No 104 Schedule 1
Schedule 1 Amendment of Water Industry 1
Competition Act 2006 No 104 2
[1] Section 5 Prohibition of unlicensed network operation and water supply 3
Insert "or public water utility" after "licensed retail supplier" in section 5 (2). 4
[2] Section 6 Licences 5
Insert "(or, if so specified, both)" after "sewerage services" in section 6 (1) (b). 6
[3] Section 7 Licensing principles 7
Insert "generally" after "consumers" in section 7 (1) (a). 8
[4] Section 7 (1) (e)(g) 9
Insert after section 7 (1) (d): 10
(e) the promotion of policies set out in any prescribed water 11
policy document, 12
(f) the potential for adverse financial implications for small 13
retail customers generally arising from the activities 14
proposed to be covered by the licence, 15
(g) the promotion of the equitable sharing among participants 16
in the drinking water market of the costs of water industry 17
infrastructure that significantly contributes to water 18
security. 19
[5] Section 7 (3) 20
Insert after section 7 (2): 21
(3) In this section: 22
prescribed water policy document means a plan or other policy 23
document concerning the use of water resources issued by or on 24
behalf of the Government that is prescribed by the regulations 25
(whether as in force at a particular time or from time to time). 26
[6] Section 10 Determination of applications 27
Omit section 10 (3). Insert instead: 28
(3) A licence may not be granted to: 29
(a) a disqualified corporation, or 30
(b) a corporation that is a related entity (within the meaning of 31
the Corporations Act 2001 of the Commonwealth) of a 32
disqualified corporation, but only if the disqualified 33
corporation would have a direct or indirect interest in, or 34
Page 3
Water Industry Competition Amendment Bill 2011
Schedule 1 Amendment of Water Industry Competition Act 2006 No 104
influence on, the carrying out of the activities that the 1
licence would authorise if granted. 2
[7] Section 13 Conditions of licences 3
Insert at the end of section 13 (2) (b): 4
, and 5
(c) in the case of a retail supplier's licence that authorises the 6
licensee to supply drinking water--the Minister may 7
impose conditions on the licence that the Minister is 8
satisfied promote the equitable sharing among public 9
water utilities and licensed retail suppliers of drinking 10
water of the costs of water industry infrastructure that 11
significantly contributes to water security, including (but 12
not limited to) the following: 13
(i) a condition requiring the licensee to obtain a 14
specified proportion of the water that it supplies 15
under the authority of its licence by means of 16
specified water industry infrastructure, 17
(ii) a condition requiring the licensee to contribute to 18
the costs of specified water industry infrastructure 19
(whether or not it is used to provide the licensee 20
with the water that it is authorised to supply under 21
the licence) calculated in a specified manner and 22
payable to a specified person or persons. 23
[8] Section 13 (3) (d) 24
Insert at the end of section 13 (3) (c): 25
, and 26
(d) may make provision for the calculation of contributions for 27
the purpose of the imposition of conditions under 28
subsection (2) (c). 29
[9] Section 13 (3A) 30
Insert after section 13 (3): 31
(3A) Nothing in Part 3 (Access to infrastructure services) limits the 32
power of the Minister to impose conditions under this section. 33
[10] Part 5 Operation of water retail market 34
Omit "between small retail customers and licensed retail suppliers" from 35
the heading to Division 1. 36
Page 4
Water Industry Competition Amendment Bill 2011
Amendment of Water Industry Competition Act 2006 No 104 Schedule 1
[11] Section 46A 1
Insert before section 47: 2
46A Definition 3
In this Division: 4
entitled person means any of the following: 5
(a) an owner or occupier of land affected by the exercise (or 6
proposed exercise) of a function under Division 2 of Part 6, 7
(b) any other person of a class prescribed by the regulations. 8
[12] Section 48 Review of decisions under approved ombudsman scheme 9
Omit ", and any other person of a class prescribed by the regulations," from 10
section 48 (1). 11
Insert instead "and any entitled person". 12
[13] Section 48 (3) 13
Omit "other persons of such classes as are prescribed by the regulations". 14
Insert instead "entitled persons". 15
[14] Section 49 Approved ombudsman scheme 16
Insert after section 49 (1) (a): 17
(a1) disputes and complaints concerning the exercise, or 18
proposed exercise, of functions under Division 2 of Part 6, 19
and 20
[15] Section 49 (2) (a) and (c) 21
Insert "and authorised licensed network operators" after "licensed retail 22
suppliers" wherever occurring. 23
[16] Section 49 (2) (d) 24
Omit "other persons prescribed by the regulations". 25
Insert instead "entitled persons". 26
[17] Section 49 (2) (g) 27
Omit "other persons of such classes as are prescribed by the regulations". 28
Insert instead "entitled persons". 29
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Water Industry Competition Amendment Bill 2011
Schedule 1 Amendment of Water Industry Competition Act 2006 No 104
[18] Section 49 (5) 1
Insert "or authorised licensed network operator" after "licensed retail 2
supplier". 3
[19] Section 50 Licence conditions relating to approved ombudsman scheme 4
Insert "or provides sewerage services (or both)" after "supplies water". 5
[20] Section 50 (2) 6
Insert at the end of section 50: 7
(2) It is a condition of the network operator's licence of an authorised 8
licensed network operator that: 9
(a) the operator must be a member of an approved 10
ombudsman scheme, and 11
(b) the operator is bound by, and must comply with, any 12
decision of the ombudsman under the scheme relating to a 13
dispute or complaint involving the operator and an entitled 14
person. 15
[21] Section 64 Ownership of water industry infrastructure 16
Omit section 64 (1) and (2). Insert instead: 17
(1) Except where another Act expressly provides otherwise, water 18
industry infrastructure is owned by the person that constructs or 19
installs it or any person that subsequently acquires title to it, 20
whether or not the land in, on, under or over which it is situated 21
is owned by that person. 22
Note. Examples of provisions of other Acts that expressly provide for the 23
ownership of water industry infrastructure by certain public water utilities 24
include the following: 25
(a) section 19 of the Hunter Water Act 1991, 26
(b) section 21 of the State Water Corporation Act 2004, 27
(c) section 37 of the Sydney Water Act 1994, 28
(d) section 54 of the Sydney Water Catchment Management 29
Act 1998. 30
(2) Water industry infrastructure that a network operator's licence 31
authorises the licensee to construct, maintain or operate is not to 32
be taken in execution of any judgment against a person (other 33
than the owner of the infrastructure or the licensee) under any 34
process of a court. 35
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Water Industry Competition Amendment Bill 2011
Amendment of Water Industry Competition Act 2006 No 104 Schedule 1
[22] Part 6, Division 1, heading 1
Insert before section 58: 2
Division 1 Powers and duties relating to water industry 3
infrastructure generally 4
[23] Part 6, Division 2 5
Insert after section 65: 6
Division 2 Powers of entry of authorised licensed 7
network operators 8
65A Interpretation 9
(1) In this Division: 10
authorised agent of an authorised licensed network operator 11
means a person appointed by the operator under section 65F. 12
(2) A reference in this Division to the water industry infrastructure of 13
an authorised licensed network operator (however expressed) is 14
a reference to the water industry infrastructure that the operator 15
is authorised to construct, maintain or operate under its network 16
operator's licence regardless of whether the infrastructure is 17
owned by the operator or any other person. 18
65B Entry of land 19
(1) An authorised licensed network operator may, by any of its 20
authorised agents, enter any land in accordance with this Division 21
for any one or more of the following purposes: 22
(a) to carry out an inspection or maintenance work on any of 23
its water industry infrastructure, 24
(b) to carry out necessary repair work on any of its water 25
industry infrastructure, 26
(c) to carry out emergency work on any of its water industry 27
infrastructure. 28
(2) Except in emergencies, a power of entry may be exercised only 29
during daylight hours. 30
65C Notice of entry 31
(1) Before an authorised agent of an authorised licensed network 32
operator exercises a power of entry under this Division, the 33
authorised licensed network operator concerned must give the 34
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Water Industry Competition Amendment Bill 2011
Schedule 1 Amendment of Water Industry Competition Act 2006 No 104
occupier (or, if there is no occupier, the owner) of the land written 1
notice of the intention to enter the land. 2
(2) The notice must specify the day on which the authorised agent 3
intends to enter the land and must be given at least 2 days before 4
that day. 5
(3) This section does not require notice to be given: 6
(a) if entry to the land is made with the consent of the occupier 7
(or, if there is no occupier, the owner) of the land, or 8
(b) if entry is required urgently and the case is one in which the 9
authorised licensed network operator has authorised in 10
writing (either generally or in the particular case) entry 11
without notice, or 12
(c) if the giving of notice would defeat the purpose for which 13
the power is to be exercised. 14
65D Use of force 15
(1) Reasonable force may be used for the purpose of gaining entry to 16
any land (other than such part of a building as is being used for 17
residential purposes) under a power conferred by this Division, 18
but only if authorised by the authorised licensed network operator 19
concerned in accordance with this section. 20
(2) The authority: 21
(a) must be in writing, and 22
(b) must be given in respect of the particular entry concerned, 23
and 24
(c) must specify the circumstances that must exist before force 25
may be used. 26
65E Compensation 27
(1) An authorised licensed network operator, in exercising its 28
functions under this Division, is to do as little damage as 29
practicable and is, subject to this Division, to compensate all 30
persons who suffer damage by the exercise of the functions. 31
(2) Compensation may be made by reinstatement, repair, 32
construction of works or payment. 33
65F Certificates of authority to enter land 34
(1) An authorised licensed network operator may appoint a person to 35
be an authorised agent of the authorised licensed network 36
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Water Industry Competition Amendment Bill 2011
Amendment of Water Industry Competition Act 2006 No 104 Schedule 1
operator for the purposes of exercising powers under this 1
Division by issuing the person with a certificate of authority. 2
(2) A power of entry under this Division may not be exercised by an 3
authorised agent unless the authorised agent: 4
(a) is in possession of a certificate of authority issued by the 5
authorised licensed network operator concerned, and 6
(b) produces the certificate when required to do so by the 7
owner or occupier of the land. 8
(3) The certificate of authority: 9
(a) must state that it is issued under this Act, and 10
(b) must give the name of the person to whom it is issued, and 11
(c) must describe the nature of the powers conferred and the 12
source of those powers, and 13
(d) must state the date (if any) on which it expires, and 14
(e) must describe the kind of land to which the power extends, 15
and 16
(f) must: 17
(i) be under the seal of the authorised licensed network 18
operator concerned, or 19
(ii) bear the signature of the principal officer of the 20
authorised licensed network operator concerned or 21
of any other officer of that operator (or an officer 22
belonging to a class of officers of that operator) 23
prescribed by the regulations. 24
(4) The Minister may, by written notice given to an authorised 25
licensed network operator, do any or both of the following: 26
(a) impose conditions or restrictions on certificates of 27
authority issued under this section by the operator, either 28
generally or in particular cases, including restrictions on 29
the purposes for which and the circumstances in which a 30
power of entry may be exercised, 31
(b) issue guidelines to be observed by the operator concerning 32
the issue of certificates of authority under this section. 33
Page 9
Water Industry Competition Amendment Bill 2011
Schedule 1 Amendment of Water Industry Competition Act 2006 No 104
65G Entry to residential premises 1
A power of entry conferred by this Division is not exercisable in 2
relation to such part of a building as is used for residential 3
purposes except: 4
(a) with the consent of the occupier (or, if there is no occupier, 5
the owner) of that part of the building, or 6
(b) under the authority conferred by a warrant of entry. 7
65H Warrants of entry 8
(1) An authorised licensed network operator may apply to an 9
authorised officer within the meaning of the Law Enforcement 10
(Powers and Responsibilities) Act 2002 if it is of the opinion that 11
it is necessary for an authorised agent of the authorised licensed 12
network operator to enter any land (including any building used 13
for residential purposes) for the purposes of this Division. 14
(2) An authorised officer within the meaning of the Law 15
Enforcement (Powers and Responsibilities) Act 2002 to whom 16
such an application is made may, if satisfied that there are 17
reasonable grounds for doing so, issue a warrant of entry 18
authorising an authorised agent of the authorised licensed 19
network operator named in the warrant to enter the land for the 20
purposes of this Division. 21
(3) Division 4 of Part 5 of the Law Enforcement (Powers and 22
Responsibilities) Act 2002 applies to a warrant of entry under this 23
section in the same way as it applies to a search warrant under 24
that Act. 25
65I Other powers of entry unaffected 26
This Division does not apply to any power of entry that a licensed 27
network operator has apart from this Division (including under 28
any contract, lease or easement). 29
[24] Schedule 4 Savings, transitional and other provisions 30
Insert at the end of clause 1 (1): 31
Water Industry Competition Amendment Act 2011 32
[25] Schedule 4, clause 1 (3) 33
Omit "in the Gazette". Insert instead "on the NSW legislation website". 34
Page 10
Water Industry Competition Amendment Bill 2011
Amendment of Water Industry Competition Act 2006 No 104 Schedule 1
[26] Schedule 4, Part 3 1
Insert after Part 2: 2
Part 3 Provisions consequent on enactment of 3
Water Industry Competition Amendment 4
Act 2011 5
4 Definition 6
In this Part: 7
amending Act means the Water Industry Competition 8
Amendment Act 2011. 9
5 Approval of new approved ombudsman scheme before 10
commencement of amendments to Division 1 of Part 5 11
(1) For the purpose of facilitating the application of an approved 12
ombudsman scheme to entitled persons in relation to the exercise 13
of functions under Division 2 of Part 6 (as inserted by the 14
amending Act) and to small retail customers of sewerage 15
services, the Minister may before the relevant day approve an 16
existing or new ombudsman scheme under section 49 as if all of 17
the amendments made to Division 1 of Part 5 by the amending 18
Act had commenced on the date of assent to that Act. 19
(2) An ombudsman scheme approved as provided by subclause (1) 20
has effect on and from the relevant day. 21
(3) The provisions of this clause are in addition to, and do not 22
derogate from, the provisions of section 26 of the Interpretation 23
Act 1987. 24
(4) In this clause: 25
relevant day means the day on which the amendment to 26
section 49 (1) made by the amending Act commences. 27
6 Transitional period in relation to enforcement of new statutory 28
licensing conditions 29
(1) The Minister may not take enforcement action under section 16 30
during the applicable transitional period in relation to any of the 31
following licence conditions imposed by section 50 (as amended 32
by the amending Act): 33
(a) the condition imposed by section 50 (1), but only in its 34
application to any retail supplier who provides sewerage 35
services under its retail supplier's licence, 36
(b) the condition imposed by section 50 (2). 37
Page 11
Water Industry Competition Amendment Bill 2011
Schedule 1 Amendment of Water Industry Competition Act 2006 No 104
(2) The applicable transitional period in relation to a licence 1
condition referred to in subclause (1) is the period of 3 months 2
commencing on the day on which the amendment made by the 3
amending Act that imposes the condition concerned commences. 4
7 Ownership of water industry infrastructure 5
(1) Subject to the regulations, section 64 (1) (as substituted by the 6
amending Act) is taken on and from the relevant day to extend to: 7
(a) any water industry infrastructure constructed or installed 8
before the relevant day, and 9
(b) any water industry infrastructure constructed or installed 10
before the relevant day the title to which has subsequently 11
been acquired by another person (whether before, on or 12
after the relevant day). 13
(2) The regulations may make provision for or with respect to the 14
application of section 64 (1) (as substituted by the amending Act) 15
to water industry infrastructure constructed or installed before the 16
relevant day. 17
(3) In this clause: 18
relevant day means the day on which section 64 (1) is substituted 19
by the amending Act. 20
[27] Dictionary 21
Insert in alphabetical order: 22
authorised licensed network operator means a licensed network 23
operator that is a prescribed authority within the meaning of 24
section 88A of the Conveyancing Act 1919. 25
[28] Dictionary, definition of "disqualified corporation" 26
Omit the definition. Insert instead: 27
disqualified corporation means: 28
(a) a corporation that, pursuant to a declaration under section 29
16 (1) (e), has been declared to be a disqualified 30
corporation for the purposes of this Act, or 31
(b) a corporation that has, as one of its directors or as one of 32
the persons concerned in its management, an individual 33
who is a disqualified individual. 34
Page 12
Water Industry Competition Amendment Bill 2011
Amendment of Water Industry Competition Act 2006 No 104 Schedule 1
[29] Dictionary 1
Insert in alphabetical order: 2
land includes (in Division 2 of Part 6 and Division 2 of Part 7) 3
any building or part of a building, or any structure or part of a 4
structure, located on, under or above land. 5
Page 13
Water Industry Competition Amendment Bill 2011
Schedule 2 Amendment of other legislation
Schedule 2 Amendment of other legislation 1
2.1 Local Government (General) Regulation 2005 2
Clause 48 Activities for which approval is not required 3
Insert after clause 48 (f): 4
(g) Activities authorised by licence under Water Industry 5
Competition Act 2006 6
An activity referred to in Part B or C of the Table to 7
section 68 of the Act if it is carried out under the authority 8
of a licence in force under the Water Industry Competition 9
Act 2006. 10
2.2 Water Industry Competition (General) Regulation 2008 11
[1] Clause 3 Definitions 12
Omit "8 or 15" from the definition of retail supply management plan in 13
clause 3 (1). 14
Insert instead "7A". 15
[2] Clause 13 Prescribed licence conditions: section 13 (1) (a) 16
Omit "5, 13 and 18" from clause 13 (2). Insert instead "5 and 7B". 17
[3] Clause 17 Person to be notified as to licence applications 18
Insert "For the purposes of section 9 (1) (b) (iii) of the Act," before "IPART". 19
[4] Clause 17 (2) 20
Insert at the end of clause 17: 21
(2) If the applicant for a licence proposes to connect to or use any of 22
the water industry infrastructure of a public water utility as part 23
of the activities in relation to which the licence is sought, IPART 24
must promptly notify that public water utility of the licence 25
application. 26
[5] Clause 19A Water industry infrastructure that was formerly exempt from 27
requirement for a licence 28
Omit "for a period of 18 months after that commencement" from 29
clause 19A (1). 30
Insert instead "until the end of 17 June 2013". 31
Page 14
Water Industry Competition Amendment Bill 2011
Amendment of other legislation Schedule 2
[6] Clause 19A (1A) 1
Insert after clause 19A (1): 2
(1A) Subclause (1) extends to water industry infrastructure regardless 3
of whether it was constructed or installed before or after the 4
commencement of the Water Industry Competition (General) 5
Amendment (Licensing Exemptions) Regulation 2010. 6
[7] Clause 19A (2) (c) 7
Insert at the end of clause 19A (2) (b): 8
, and 9
(c) clause 7A (1) of Schedule 2 is to be construed as if the 10
words "Before commencing to carry out activities under a 11
retail supplier's licence" were replaced with the words 12
"Within 6 months after being granted a retail supplier's 13
licence". 14
[8] Clause 27 Establishment of transfer code of conduct 15
Insert "or public water utilities (or both)" after "licensed retail suppliers" in 16
clause 27 (1). 17
[9] Clause 28A 18
Insert after clause 28: 19
28A Prescribed water policy document: section 7 (3) 20
The Metropolitan Water Plan published by the New South Wales 21
Government, as in force from time to time, is prescribed for the 22
purposes of the definition of prescribed water policy document 23
in section 7 (3) of the Act. 24
Note. A copy of the latest Metropolitan Water Plan is available at the 25
Water 4 Life website (www.waterforlife.nsw.gov.au). 26
[10] Schedule 1 Conditions for network operators' licences 27
Omit clause 12 (b) and (c). 28
[11] Schedule 2 Conditions for retail suppliers' licences 29
Insert after clause 7: 30
7A Retail supply management plans 31
(1) Before commencing to carry out activities under a retail 32
supplier's licence, the licensee must prepare, and forward to 33
IPART, a retail supply management plan that indicates the 34
Page 15
Water Industry Competition Amendment Bill 2011
Schedule 2 Amendment of other legislation
arrangements that the licensee has made, or proposes to make, in 1
relation to: 2
(a) the events and circumstances that could adversely affect 3
the licensee's ability to supply water or provide sewerage 4
services (or both), as authorised by the licence, and 5
(b) the probability of the occurrence of any such event or 6
circumstance, and 7
(c) the measures to be taken by the licensee: 8
(i) to prevent the occurrence, or minimise the effect, of 9
any such event or circumstance, and 10
(ii) to arrange for alternative supplies of water or the 11
provision of sewerage services (or both), as 12
authorised by the licence, in response to any such 13
event or circumstance, and 14
(d) the arrangements that the licensee has made, or proposes to 15
make, to ensure that it complies with: 16
(i) its code of practice for complaints by small retail 17
customers and its code of practice for debt recovery 18
from such customers, and 19
(ii) the marketing code of conduct and the transfer code 20
of conduct. 21
(2) The licensee: 22
(a) must ensure that its retail supply management plan is fully 23
implemented and kept under regular review and, in 24
particular, that all of its activities are carried out in 25
accordance with that plan, and 26
(b) must, if the Minister so directs, amend its retail supply 27
management plan in accordance with the Minister's 28
direction. 29
(3) If the Minister or IPART so demands, or if any significant change 30
is made to its retail supply management plan, the licensee: 31
(a) must provide the Minister or IPART with a report, 32
prepared by an approved auditor in such manner and form 33
as the Minister or IPART may direct, as to the adequacy of 34
the plan, or 35
(b) must pay the Minister's or IPART's costs of conducting an 36
investigation into the adequacy of the plan. 37
Page 16
Water Industry Competition Amendment Bill 2011
Amendment of other legislation Schedule 2
7B Matters to be contained on licensee's website 1
(1) The licensee must have an internet website on which the 2
following matters are available for inspection by members of the 3
public: 4
(a) if the licensee is authorised to supply water under the retail 5
supplier's licence: 6
(i) the licensee's standard water supply contract for 7
small retail customers, and 8
(ii) the existence of any water restriction order that is in 9
force in its area of operations, 10
(b) if the licensee is authorised to provide sewerage services 11
under the retail supplier's licence--the licensee's 12
sewerage service contract for small retail customers, 13
(c) the licensee's retail supply management plan, 14
(d) the licensee's code of practice for complaints by small 15
retail customers, 16
(e) the licensee's code of practice for debt recovery from 17
small retail customers, 18
(f) details of any relevant government policy that applies to 19
the licensee, 20
(g) the most recent auditor's report under clause 7A that 21
applies to the licensee. 22
(2) In this clause, relevant government policy means government 23
policy with respect to social programs for the supply of water or 24
provision of sewerage services, as referred to in section 13 (3) (a) 25
of the Act. 26
[12] Schedule 2, clauses 8, 13, 15 and 18 27
Omit the clauses. 28
[13] Schedule 2, clause 14 (4) 29
Omit "13 (1) (a)". Insert instead "7B (1) (a) (i)". 30
Page 17
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