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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Water Industry Competition Bill 2006
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Act binds Crown 2
Part 2 Licensing of network operators and retail suppliers
Division 1 Preliminary
5 Prohibition of unlicensed network operation and water
supply 3
6 Licences 3
7 Licensing principles 4
Division 2 Procedure for obtaining licences
8 Applications for licences 4
Water Industry Competition Bill 2006
Contents
Page
9 Consideration of applications by IPART 4
10 Determination of applications 5
11 Licence to specify authorised activities and area
of operations 6
12 Duration of licences 6
13 Conditions of licences 6
Division 3 Administration of licences
14 Annual licence fees 7
15 Variation of licence conditions 8
16 Enforcement of licences 8
17 Licensees to be notified of proposed action 9
18 Emergency directions 9
19 Cancellation of licences in public interest 10
20 Register of licences 11
Part 3 Access to infrastructure services
Division 1 Preliminary
21 Object of Part 12
22 Part applies only to scheduled areas 12
23 Declaration criteria 12
Division 2 Coverage declarations
24 Applications for coverage declaration 12
25 Consideration of coverage applications by IPART 13
26 Determination of coverage applications by Minister 14
27 Period for which coverage declarations to have effect 14
Division 3 Revocation of coverage declarations
28 Applications for revocation of coverage declaration 15
29 Consideration of revocation applications by IPART 15
30 Determination of revocation applications by Minister 15
Division 4 Binding non-coverage declarations
31 Application of Division 16
32 Applications for binding non-coverage declaration 17
33 Consideration of binding non-coverage applications
by IPART 17
34 Determination of binding non-coverage applications
by Minister 18
35 Period for which binding non-coverage declarations
to have effect 18
Contents page 2
Water Industry Competition Bill 2006
Contents
Page
36 Binding non-coverage declarations have effect only for
complying infrastructure 19
37 Revocation of binding non-coverage declaration 19
Division 5 Access undertakings
38 Access undertakings 19
Division 6 Access agreements and access
determinations
39 Access agreements 20
40 Access determinations 21
Division 7 Administration of access regime
41 Pricing principles 22
42 Service providers to have approved cost allocation
manuals 23
43 Hindering access to certain services 24
44 Register of infrastructure services 25
Part 4 Sewer mining
45 Application of Part 26
46 Sewer mining determinations 26
Part 5 Operation of water retail market
Division 1 Resolution of disputes between small retail
customers and licensed retail suppliers
47 Internal review of certain decisions disputed by small
retail customers 28
48 Review of decisions under approved ombudsman
scheme 28
49 Approved ombudsman scheme 29
50 Licence conditions relating to approved ombudsman
scheme 30
Division 2 Monopoly suppliers
51 Declaration of monopoly suppliers 31
52 Pricing determinations for monopoly services 31
53 Obligations of monopoly suppliers 32
Division 3 Retailers of last resort
54 Declaration of retailers of last resort 32
55 Preparation of contingency plans 32
56 Minister may declare supply failure 32
57 Effect of declaration of supply failure 33
Contents page 3
Water Industry Competition Bill 2006
Contents
Page
Part 6 Work relating to water industry infrastructure
58 Erection and placement of water industry infrastructure 34
59 Damage to public roads and public reserves to be made
good 34
60 Interference with water industry infrastructure by trees 35
61 Obstruction of water mains and sewer mains 36
62 Altering position of conduits 37
63 Charges for placement of water industry infrastructure 38
64 Ownership of water industry infrastructure 38
65 Meter readers 38
Part 7 Offences
Division 1 Offences
66 Exposure of underground pipes 40
67 Interference with water industry infrastructure 40
68 Interference with meters 40
69 Unauthorised connections 40
70 Unauthorised increase in capacity of connections 40
71 Offence to discharge into drains and sewers 41
72 Unauthorised use of water 41
73 Unlicensed plumbing and drainage work 41
Division 2 Powers of inspectors
74 Inspectors 41
75 Notice of entry 42
76 Use of force 42
77 Notification of use of force or urgent entry 43
78 Care to be taken 43
79 Compensation 43
80 Warrants of entry 43
81 Obstruction of inspectors 44
Division 3 General
82 Penalty notices 44
83 Court may order disconnection and discontinuance
of water supply 45
84 Court may order payment for stolen water 45
Part 8 Functions of IPART
Division 1 Licence auditing functions
85 Licence auditing functions 47
86 Recovery of IPART's costs 47
Contents page 4
Water Industry Competition Bill 2006
Contents
Page
87 Power to direct licensees to keep records and
furnish information 47
88 Failure to keep records or furnish information 47
89 Annual reports 48
Division 2 Regulatory functions
90 Regulatory functions 48
Division 3 Miscellaneous
91 Investigations by IPART 48
92 IPART guidelines 49
93 Exclusion of Part 3, Division 3, of Independent
Pricing and Regulatory Tribunal Act 1992 49
Part 9 Miscellaneous
94 Delegation of functions 50
95 Service of documents 50
96 Exclusion of personal liability 50
97 Offences by corporations 50
98 Proceedings for offences 51
99 Recovery of monetary penalties 51
100 Evidentiary certificates 51
101 Regulations 52
102 Amendment of other Acts 52
103 Savings, transitional and other provisions 52
104 Review of Act 52
Schedule 1 Scheduled areas 53
Schedule 2 Regulation-making powers 54
Schedule 3 Amendment of other Acts 58
Schedule 4 Savings, transitional and other provisions 62
Dictionary 64
Contents page 5
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Water Industry Competition Bill 2006
Act No , 2006
An Act to encourage competition in relation to the supply of water and the provision
of sewerage services and to facilitate the development of infrastructure for the
production and reticulation of recycled water; and for other purposes.
See also the Central Coast Water Corporation Act 2006.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Water Industry Competition Bill 2006
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Water Industry Competition Act 2006.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
(1) Words and expressions that are defined in the Dictionary at the end of
this Act have the meanings set out in that Dictionary.
(2) Notes included in this Act do not form part of this Act.
4 Act binds Crown
This Act binds the Crown in right of New South Wales and, in so far as
the legislative power of Parliament permits, the Crown in all its other
capacities.
Page 2
Water Industry Competition Bill 2006 Clause 5
Licensing of network operators and retail suppliers Part 2
Part 2 Licensing of network operators and retail
suppliers
Division 1 Preliminary
5 Prohibition of unlicensed network operation and water supply
(1) A person must not:
(a) construct, maintain or operate any water industry infrastructure,
or
(b) supply water, or provide a sewerage service, by means of any
water industry infrastructure,
otherwise than under the authority of a licence.
Maximum penalty: 10,000 penalty units (in the case of a corporation)
and 2,500 penalty units (in any other case).
(2) Subsection (1) (b) does not apply to or in respect of the supply of water,
or the provision of sewerage services, by a licensed network operator to
a licensed retail supplier.
(3) This section does not apply to a public water utility in relation to:
(a) the construction, maintenance or operation of water industry
infrastructure situated within its area of operations, or
(b) the supply of water, or the provision of a sewerage service, by
means of water industry infrastructure situated within its area of
operations.
(4) This section does not apply to or in respect of:
(a) such water industry infrastructure as comprises water
management works to which Chapter 4, 5 or 6 of the Water
Management Act 2000 applies, or
(b) such other water industry infrastructure as is prescribed by the
regulations.
6 Licences
(1) Subject to any conditions imposed on it by or under this Act:
(a) a network operator's licence authorises the licensee, and any
other person specified in the licence, to construct, maintain and
operate the water industry infrastructure so specified for the
purposes so specified, and
Page 3
Clause 7 Water Industry Competition Bill 2006
Part 2 Licensing of network operators and retail suppliers
(b) a retail supplier's licence authorises the licensee, and any other
person specified in the licence, to supply water or provide
sewerage services, by means of water industry infrastructure, to
persons or classes of persons so specified.
(2) Nothing in this section exempts a licensee from:
(a) any requirement under the Water Management Act 2000 to hold
an access licence or water supply work approval, or
(b) any requirement under the Protection of the Environment
Operations Act 1997 to hold an environmental protection licence.
7 Licensing principles
(1) In considering whether or not a licence is to be granted under this Part
and what conditions are to be imposed on such a licence, regard is to be
had to the following principles:
(a) the protection of public health, the environment, public safety
and consumers,
(b) the encouragement of competition in the supply of water and the
provision of sewerage services,
(c) the ensuring of sustainability of water resources,
(d) the promotion of production and use of recycled water.
(2) This section does not restrict the matters to which regard may be had in
considering the matters referred to in subsection (1).
Division 2 Procedure for obtaining licences
8 Applications for licences
(1) An application for a licence may only be made by or on behalf of a
corporation.
(2) Such an application:
(a) must be in such form as the Minister may approve, and
(b) must be accompanied by such fee as the Minister may determine,
and
(c) must be lodged at the office of IPART.
9 Consideration of applications by IPART
(1) On receiving an application for a licence, IPART:
(a) must furnish a copy of the application to the Minister, and
Page 4
Water Industry Competition Bill 2006 Clause 10
Licensing of network operators and retail suppliers Part 2
(b) must furnish copies of the application to, and invite submissions
on the application from:
(i) the Minister administering the Public Health Act 1991, and
(ii) the Minister administering Chapter 2 of the Water
Management Act 2000, and
(iii) such other persons as are prescribed by the regulations, and
(c) must invite submissions on the application from the public.
(2) After considering the application and any such submissions, IPART
must furnish a report on the application to the Minister.
(3) Such a report must include recommendations as to whether or not a
licence should be granted and as to the conditions (if any) to which a
licence (if granted) should be subject.
10 Determination of applications
(1) The Minister may determine an application for a licence by granting a
licence or by refusing the application.
(2) The Minister must consider, but is not bound to accept, any advice or
recommendation in IPART's report on the application and may, if
circumstances so require, seek further advice from IPART in relation to
the application.
(3) A licence may not be granted to a disqualified corporation.
(4) A licence may not be granted unless the Minister is satisfied as to each
of the following:
(a) that the applicant has, and will continue to have, the capacity
(including technical, financial and organisational capacity) to
carry out the activities that the licence (if granted) would
authorise,
(b) that the applicant has the capacity to carry out those activities in
a manner that does not present a risk to public health,
(c) that the applicant has made, and will continue to maintain,
appropriate arrangements with respect to insurance,
(d) in the case of an application for a licence to supply water, that, if
such a licence is granted, sufficient quantities of the water
supplied by the licensee will have been obtained otherwise than
from a public water utility,
(e) such matters as are prescribed by the regulations,
(f) such other matters as the Minister considers relevant, having
regard to the public interest.
Page 5
Clause 11 Water Industry Competition Bill 2006
Part 2 Licensing of network operators and retail suppliers
(5) On making a decision under this section, the Minister must cause notice
of the decision, and of the reasons for the decision, to be given to
IPART.
(6) On receiving such notice, IPART must cause the information contained
in the notice to be made available to the public on IPART's internet
website.
11 Licence to specify authorised activities and area of operations
(1) A licence must specify the activities that it authorises the licensee to
carry out and the area within which it authorises those activities to be
carried out.
Note. For example, a licence might authorise the supply of recycled water of a
specified quality within a specified area.
(2) The same land may be within the area of operations of more than one
licensee, whether the respective licences relate to the same or different
activities.
12 Duration of licences
(1) A licence remains in force until it is cancelled.
(2) A licence does not have effect for the purposes of section 5 (1) while it
is suspended.
Note. The effect of this subsection is to prohibit the licensee from doing what
the licence would otherwise authorise, but without affecting any obligations to
which the licensee is subject under this Act, the regulations or the conditions of
the licence.
13 Conditions of licences
(1) A licence is subject to the following conditions:
(a) such conditions as are imposed on it by this Act or the
regulations,
(b) such other conditions (not inconsistent with those imposed on it
by this Act or the regulations) as are imposed on it by the
Minister.
(2) Without limiting any other matter with respect to which the Minister
may impose conditions:
(a) the Minister may impose conditions to ensure that the licensee
has, and continues to have, the capacity (including technical,
financial and organisational capacity) to carry out the activities
authorised by the licence, and
Page 6
Water Industry Competition Bill 2006 Clause 14
Licensing of network operators and retail suppliers Part 2
(b) the Minister may impose conditions requiring the licensee:
(i) to give and maintain security (in such amount and form as
the Minister may determine) for the fulfilment of its
obligations under the licence, and
(ii) to maintain appropriate arrangements with respect to
insurance.
(3) Without limiting any other matter with respect to which regulations may
be made, regulations for the purposes of this section:
(a) may impose conditions requiring a licensee to implement
government policy with respect to social programs for the supply
of water and the provision of sewerage services, and
(b) may make provision for the funding of such programs, whether
in whole or in part, from money made available by Parliament for
that purpose, including payment of the efficient costs of
implementing such programs, and
(c) in the case of a licence to supply water, may impose conditions
with respect to the quantity of water that the licensee may obtain
from a public water utility.
(4) In this section, social program for the supply of water and the
provision of sewerage services means a program to ensure that those
services are available to people in need, including those suffering
financial hardship and those living in remote areas, and includes a
program for the granting of payment assistance, discounts or rebates.
Division 3 Administration of licences
14 Annual licence fees
(1) The Minister may require a licensee to pay to the Minister such amount,
by way of an annual licence fee, as the Minister may from time to time
determine.
(2) The amount so determined must not exceed the cost of administering
this Act, during the year to which the fee relates, in relation to the
licensee.
(3) It is a condition of each licence that the licensee must comply with any
requirement under this section.
Page 7
Clause 15 Water Industry Competition Bill 2006
Part 2 Licensing of network operators and retail suppliers
15 Variation of licence conditions
The Minister may at any time:
(a) vary the existing conditions of a licence (other than those
imposed by this Act or the regulations), or
(b) impose new conditions on a licence (not inconsistent with those
imposed by this Act or the regulations),
either of his or her own motion or on the application of the licensee.
16 Enforcement of licences
(1) The Minister may, by order, do any one or more of the following in
relation to a licensee that contravenes this Act or the regulations or the
conditions of the licence:
(a) the Minister may impose on the licensee a monetary penalty not
exceeding:
(i) $500,000 for the first day on which the contravention
occurs, and
(ii) a further $20,000 for each subsequent day (not exceeding
25 days) on which the contravention continues,
(b) the Minister may require the licensee to take such action as the
Minister considers appropriate in the circumstances, including
(for example) requiring the licensee to do any one or more of the
following:
(i) to send specified information to customers,
(ii) to publish notices containing specified information,
(iii) to take specified action to rectify the contravention,
(iv) to take specified action to prevent any future
contravention,
(c) the Minister may cancel the licence,
(d) the Minister may suspend the licence,
(e) the Minister may declare that the licensee is a disqualified
corporation for the purposes of this Act,
(f) the Minister may declare that specified persons, being:
(i) persons who are directors of the licensee or are concerned
in the management of the licensee, or
(ii) persons or classes of persons who are related persons in
relation to a person referred to in subparagraph (i),
are disqualified individuals for the purposes of this Act.
Page 8
Water Industry Competition Bill 2006 Clause 17
Licensing of network operators and retail suppliers Part 2
(2) An order under subsection (1) (d), (e) or (f) may be expressed to apply
indefinitely, for a specified period of time or for a period of time ending
on the occurrence of a specified event or state of affairs.
(3) The Minister may, by order, cancel or suspend a licence if the licensee
becomes a disqualified corporation.
(4) The Minister's functions under subsections (1) and (3) may also be
exercised by IPART but, in the case of action of the kind referred to in
subsection (1) (c), (d), (e) or (f) or (3), only with the concurrence of the
Minister.
(5) Neither IPART nor the Minister may take action under this section for
any contravention for which the other has previously taken the same
kind of action.
(6) Nothing in this section prevents a licence from being cancelled or
suspended at the request of the licensee.
(7) IPART has the function of monitoring and reporting to the Minister on
compliance by a licensee with the conditions of the licence.
17 Licensees to be notified of proposed action
(1) Action under section 15 or 16 may not be taken unless:
(a) notice of the proposed action has been given to:
(i) the licensee, and
(ii) such other persons as are prescribed by the regulations, and
(b) the licensee and each such person has been given a reasonable
opportunity to make submissions with respect to the proposed
action, and
(c) the Minister or IPART, as the case requires, has given
consideration to any such submissions.
(2) Subsection (1) (a) (i) does not apply to action taken at the request of the
licensee.
18 Emergency directions
(1) If of the opinion that it is necessary to do so in order to deal with a risk
to public health or public safety arising from:
(a) the construction, maintenance or operation of water industry
infrastructure, or
(b) the supply of water, or the provision of a sewerage service,
the Minister may direct a licensed network operator or licensed retail
supplier to take specified action to reduce or eliminate that risk.
Page 9
Clause 19 Water Industry Competition Bill 2006
Part 2 Licensing of network operators and retail suppliers
(2) It is a condition of a network operator's or retail supplier's licence that
the network operator or retail supplier must comply with any direction
under this section.
(3) If the network operator or retail supplier fails to carry out appropriate
work in accordance with any such direction, the Minister may arrange
for the work to be carried out.
(4) The cost of carrying out the work may be recovered by the Minister in
a court of competent jurisdiction as a debt owed to the Minister by the
network operator or retail supplier.
(5) The Minister's functions under this section may be exercised by an
inspector on the Minister's behalf without the need for any authority
other than that conferred by this subsection.
19 Cancellation of licences in public interest
(1) The Minister may, by written notice served on the licensee, cancel a
licence if the Minister considers the cancellation to be in the public
interest.
(2) Cancellation may be:
(a) of the Minister's own motion, or
(b) on the written recommendation of some other Minister.
(3) Cancellation may be with respect to the whole or any part of the water
industry infrastructure to which the licence relates.
(4) Cancellation takes effect on and from the day specified in the notice of
cancellation.
(5) In determining when cancellation is to take effect, the Minister is to
consider the public interest and, if cancellation arises from the
recommendation of some other Minister, that Minister's reasons for the
recommendation.
(6) A licensee whose licence is cancelled under this section may bring
proceedings for compensation in the Supreme Court:
(a) if cancellation was of the Minister's own motion, against the
Minister, or
(b) if cancellation was on the written recommendation of some other
Minister, against that Minister.
(7) The Supreme Court is to hear the proceedings and determine whether it
is just that compensation be paid to the plaintiff by reason of the
cancellation.
Page 10
Water Industry Competition Bill 2006 Clause 20
Licensing of network operators and retail suppliers Part 2
(8) If the Supreme Court determines that it is just that such a payment be
made, the Supreme Court must determine the amount of the payment
and give judgment accordingly.
20 Register of licences
(1) IPART is to maintain a register of licences.
(2) The regulations may make provision with respect to the manner and
form in which the register is to be kept and the nature of the information
to be included in the register.
(3) IPART must keep the register available for inspection by members of
the public, free of charge, during normal office hours.
(4) It is sufficient compliance with subsection (3) if a copy of the register is
made available to the public on IPART's internet website.
(5) Copies of entries in the register are to be made available to members of
the public, at cost, during normal office hours.
Page 11
Clause 21 Water Industry Competition Bill 2006
Part 3 Access to infrastructure services
Part 3 Access to infrastructure services
Division 1 Preliminary
21 Object of Part
The object of this Part is to establish a scheme to promote the
economically efficient use and operation of, and investment in,
significant water industry infrastructure, thereby promoting effective
competition in upstream or downstream markets.
22 Part applies only to scheduled areas
(1) This Part applies to and in respect of water industry infrastructure that
is situated in, on or over land referred to in Schedule 1 (a scheduled
area).
(2) The Minister may, by order published in the Gazette, amend Schedule
1 so as to add more scheduled areas or include more land in existing
scheduled areas.
23 Declaration criteria
For the purposes of this Part, the following criteria are declaration
criteria in relation to an infrastructure service provided by water
industry infrastructure:
(a) that the infrastructure is of State significance, having regard to its
nature and extent and its importance to the State economy,
(b) that it would not be economically feasible to duplicate the
infrastructure,
(c) that access (or an increase in access) to the service by third parties
is necessary to promote a material increase in competition in an
upstream or downstream market,
(d) that the safe use of the infrastructure by access seekers can be
ensured at an economically feasible cost and, if there is a safety
requirement, that appropriate regulatory arrangements exist,
(e) that access (or an increase in access) to the service would not be
contrary to the public interest.
Division 2 Coverage declarations
24 Applications for coverage declaration
(1) An application for a coverage declaration for an infrastructure service
may only be made by or on behalf of one of the following:
(a) the service provider for that service,
Page 12
Water Industry Competition Bill 2006 Clause 25
Access to infrastructure services Part 3
(b) an access seeker in relation to that service who has tried, but
failed:
(i) to obtain access to that service, or
(ii) to obtain a change to some aspect of the person's existing
access to that service,
(c) the Minister, in the case only of a service provided by a public
water utility.
(2) In the case of a service the subject of an existing coverage declaration,
an application for the renewal of the declaration may also be made by
any person currently having access to the service.
(3) A coverage application:
(a) must be in such form as the Minister may approve, and
(b) must be accompanied by such fee as the Minister may determine,
and
(c) must be lodged at the office of IPART.
25 Consideration of coverage applications by IPART
(1) On receiving a coverage application, IPART:
(a) must furnish a copy of the application to the Minister, and
(b) must furnish copies of the application to, and invite submissions
on the application from, such other persons as are prescribed by
the regulations, and
(c) must invite submissions on the application from the public.
(2) After considering the application and any such submissions, IPART
must furnish a report on the application to the Minister.
(3) Such a report:
(a) must include a statement of IPART's opinion as to whether or not
the declaration criteria are met in relation to the service to which
the application relates, and
(b) if IPART's opinion is that all of those criteria are met, a
recommendation as to the terms in which a coverage declaration
should be made and the period for which it should have effect.
(4) IPART must use its best endeavours to ensure that a report on the
application is provided within 4 months after the application is made.
(5) This section does not apply to:
(a) a coverage application for an infrastructure service that is the
subject of a binding non-coverage declaration or an access
undertaking, or
Page 13
Clause 26 Water Industry Competition Bill 2006
Part 3 Access to infrastructure services
(b) a coverage application that IPART determines, with the consent
of the Minister, to be frivolous or vexatious.
26 Determination of coverage applications by Minister
(1) The Minister must determine a coverage application:
(a) if satisfied:
(i) that all of the declaration criteria are met in relation to the
service to which the application relates, and
(ii) that the service is not the subject of a binding non-coverage
declaration or an access undertaking,
by making a coverage declaration in relation to the service, or
(b) if not so satisfied, by refusing to make such a declaration.
(2) The Minister must consider, but is not bound to accept, any advice or
recommendation in IPART's report on the application and may, if
circumstances so require, seek further advice from IPART in relation to
the application.
(3) A coverage declaration need not be in the terms sought by the coverage
application, and may apply to a greater or lesser extent than that so
sought.
(4) The Minister must use his or her best endeavours to ensure that a
decision on a coverage application is made within 6 months after the
date on which the application was lodged with IPART.
(5) On making a decision under this section, the Minister must cause notice
of the decision, and of the reasons for the decision, to be given to
IPART.
(6) On receiving such notice, IPART must cause the information contained
in the notice, together with its report on the coverage application, to be
made available to the public on IPART's internet website.
27 Period for which coverage declarations to have effect
(1) A coverage declaration must state the period for which it is to have
effect.
(2) Subject to its renewal under section 26, or to its revocation under
section 30, a coverage declaration has effect until the end of that period.
(3) A coverage declaration does not have effect in relation to an
infrastructure service while the service is the subject of an access
undertaking.
Page 14
Water Industry Competition Bill 2006 Clause 28
Access to infrastructure services Part 3
Division 3 Revocation of coverage declarations
28 Applications for revocation of coverage declaration
(1) An application for the revocation of a coverage declaration for an
infrastructure service may only be made by or on behalf of the service
provider for that service.
(2) A revocation application:
(a) must be in such form as the Minister may approve, and
(b) must be accompanied by such fee as the Minister may determine,
and
(c) must be lodged at the office of IPART.
29 Consideration of revocation applications by IPART
(1) On receiving a revocation application, IPART:
(a) must furnish a copy of the application to the Minister, and
(b) must furnish copies of the application to, and invite submissions
on the application from, such other persons as are prescribed by
the regulations, and
(c) must invite submissions on the application from the public.
(2) After considering the application and any such submissions, IPART
must furnish a report on the application to the Minister.
(3) Such a report must include a statement of IPART's opinion as to
whether or not the declaration criteria are met in relation to the service
to which the application relates.
(4) IPART must use its best endeavours to ensure that a report on the
application is provided within 4 months after the application is made.
(5) This section does not apply to a revocation application that IPART
determines, with the consent of the Minister, to be frivolous or
vexatious.
30 Determination of revocation applications by Minister
(1) The Minister must determine a revocation application:
(a) if satisfied that any of the declaration criteria are not met in
relation to the service to which the application relates, by
revoking the coverage declaration for the service, or
(b) if not so satisfied, by refusing to make such a declaration.
Page 15
Clause 31 Water Industry Competition Bill 2006
Part 3 Access to infrastructure services
(2) The Minister must consider, but is not bound to accept, any advice or
recommendation in IPART's report on the application and may, if
circumstances so require, seek further advice from IPART in relation to
the application.
(3) A revocation declaration need not be in the terms sought by the
revocation application, and may apply to a greater or lesser extent than
that so sought.
(4) The Minister must use his or her best endeavours to ensure that a
decision on a revocation application is made within 6 months after the
date on which the application was lodged with IPART.
(5) On making a decision under this section, the Minister must cause notice
of the decision, and of the reasons for the decision, to be given to
IPART.
(6) On receiving such notice, IPART must cause the information contained
in the notice, together with its report on the revocation application, to be
made available to the public on IPART's internet website.
(7) A revocation declaration takes effect on the day specified in the
declaration in that regard.
Division 4 Binding non-coverage declarations
31 Application of Division
(1) This Division applies to infrastructure services to be provided by:
(a) proposed water industry infrastructure, being infrastructure
(other than a minor extension to existing infrastructure) that is not
currently constructed, or
(b) existing infrastructure that is not currently used, or
(c) existing infrastructure that is currently used otherwise than for
the production, treatment, filtration, storage, conveyance or
reticulation of water or sewage,
but does not apply to infrastructure services provided by existing water
industry infrastructure.
(2) For the purposes of determining a binding non-coverage application, the
references to currently in subsection (1) are references to the time when
the application is made.
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Water Industry Competition Bill 2006 Clause 32
Access to infrastructure services Part 3
32 Applications for binding non-coverage declaration
(1) An application for a binding non-coverage declaration for an
infrastructure service:
(a) may only be made by or on behalf of the service provider for that
service, and
(b) may not be made after the water industry infrastructure by means
of which the service is to be provided has been commissioned.
(2) A binding non-coverage application:
(a) must be in such form as the Minister may approve, and
(b) must be accompanied by such fee as the Minister may determine,
and
(c) must be lodged at the office of IPART.
33 Consideration of binding non-coverage applications by IPART
(1) On receiving a binding non-coverage application, IPART:
(a) must furnish a copy of the application to the Minister, and
(b) must furnish copies of the application to, and invite submissions
on the application from, such other persons as are prescribed by
the regulations, and
(c) must invite submissions on the application from the public.
(2) After considering the application and any such submissions, IPART
must furnish a report on the application to the Minister.
(3) Such a report:
(a) must include a statement of IPART's opinion as to whether or not
the declaration criteria are met in relation to the service to which
the application relates, and
(b) if IPART's opinion is that any of those criteria are not met, a
recommendation as to the terms in which a binding non-coverage
declaration should be made and the period for which it should
have effect.
(4) IPART must use its best endeavours to ensure that a report on the
application is provided within 4 months after the application is made.
(5) This section does not apply to:
(a) a binding non-coverage application for an infrastructure service
that is the subject of a coverage declaration or an access
undertaking, or
(b) a binding non-coverage application that IPART determines, with
the consent of the Minister, to be frivolous or vexatious.
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Clause 34 Water Industry Competition Bill 2006
Part 3 Access to infrastructure services
34 Determination of binding non-coverage applications by Minister
(1) The Minister must determine a binding non-coverage application:
(a) if satisfied:
(i) that any of the declaration criteria are not met in relation to
the service to which the application relates, and
(ii) that the service is not the subject of a coverage declaration
or an access undertaking,
by making a binding non-coverage declaration in relation to the
service, or
(b) if not so satisfied, by refusing to make such a declaration.
(2) The Minister must consider, but is not bound to accept, any advice or
recommendation in IPART's report on the application and may, if
circumstances so require, seek further advice from IPART in relation to
the application.
(3) The Minister must use his or her best endeavours to ensure that a
decision on a binding non-coverage application is made within 6
months after the date on which the application was lodged with IPART.
(4) On making a decision under this section, the Minister must cause notice
of the decision, and of the reasons for the decision, to be given to
IPART.
(5) On receiving such notice, IPART must cause the information contained
in the notice, together with its report on the binding non-coverage
application, to be made available to the public on IPART's internet
website.
35 Period for which binding non-coverage declarations to have effect
(1) A binding non-coverage declaration must state the period (not
exceeding 10 years) for which it is to have effect.
(2) Subject to its renewal under section 34, or to its revocation under
section 37, a binding non-coverage declaration has effect until the end
of that period.
(3) A binding non-coverage declaration does not have effect in relation to
an infrastructure service while the service is the subject of an access
undertaking.
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Water Industry Competition Bill 2006 Clause 36
Access to infrastructure services Part 3
36 Binding non-coverage declarations have effect only for complying
infrastructure
A binding non-coverage declaration does not have effect unless the
water industry infrastructure to which it relates, when used for the
storage, conveyance or reticulation of water or sewage:
(a) has substantially the same capacity, and
(b) serves substantially the same geographical locations,
as those specified in the application for the declaration.
37 Revocation of binding non-coverage declaration
The Minister may revoke a binding non-coverage declaration:
(a) if the service provider for the service to which the declaration
relates requests the Minister to revoke the declaration, or
(b) if the application for the declaration contained false or misleading
information or failed to contain information that it was required
to contain.
Division 5 Access undertakings
38 Access undertakings
(1) A service provider may give IPART an access undertaking with respect
to any one or more of its infrastructure services (whether or not it has
begun providing them and whether or not they are the subject of
coverage declarations).
(2) An access undertaking is to be in the form of a document that sets out
the service provider's arrangements for the provision of access to its
infrastructure services.
(3) Those arrangements must provide for any disputes concerning the
provision of access to its infrastructure services to be referred to IPART
for resolution in accordance with section 40.
(4) An access undertaking does not have effect until it has been approved
by IPART.
(5) On receiving an application for approval of an access undertaking,
IPART must invite public submissions on the application.
(6) In deciding whether to approve a service provider's access undertaking,
IPART must have regard to the following:
(a) the legitimate business interests of the service provider,
(b) the public interest, including the public interest in having
competition in markets,
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Clause 39 Water Industry Competition Bill 2006
Part 3 Access to infrastructure services
(c) the interests of prospective access seekers,
(d) any other matters that IPART considers relevant.
Note. See also section 41 in relation to the application of pricing principles and
section 92 in relation to IPART's guidelines as to the exercise of its functions
under this section.
(7) An access undertaking has effect for the period specified in the
undertaking in that regard, and may only be varied during that period
with the consent of IPART.
(8) A service provider must keep its access undertakings available for
inspection by members of the public, free of charge, during normal
office hours.
(9) It is sufficient compliance with subsection (8) if copies of the access
undertakings are made available to the public on the service provider's
internet website.
(10) Copies of an access undertaking are to be made available to members of
the public, at cost, during normal office hours.
Division 6 Access agreements and access determinations
39 Access agreements
(1) The terms on which a service provider is to provide access to an
infrastructure service the subject of a coverage declaration or an access
undertaking are to be set out:
(a) in an agreement between the service provider and the access
seeker, or
(b) if no such agreement can be reached, in an access determination.
(2) A provision of an access agreement is void to the extent to which it
purports:
(a) to prohibit a service provider from providing a service the subject
of a coverage declaration or an access undertaking to any person,
whether or not the person is a party to the agreement, or
(b) to prohibit a service provider from providing a service the subject
of a coverage declaration or an access undertaking to some
persons on more advantageous terms than those on which it
provides the same service to other persons, or
(c) to prohibit or restrict any person from giving information to
IPART or the Minister pursuant to any requirement under this or
any other Act, or from creating documents for the purpose of
recording information for that purpose.
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Water Industry Competition Bill 2006 Clause 40
Access to infrastructure services Part 3
40 Access determinations
(1) If a dispute exists between a service provider and an access seeker:
(a) as to the terms on which the access seeker is to be given access
(or an increase in access) to a service the subject of a coverage
declaration or an access undertaking, or
(b) as to any matter arising under an access agreement that provides
for a dispute as to that matter to be dealt with in accordance with
this section, or
(c) as to any matter arising under a determination under this section,
either party to the dispute may apply to IPART for the dispute to be
determined by arbitration.
Note. Pursuant to section 24B of the Independent Pricing and Regulatory
Tribunal Act 1992 (as applied by subsection (5)), the arbitrator for such a
dispute may be IPART or some other person appointed by IPART to arbitrate
the dispute.
(2) IPART may refuse to accept such an application if it is not satisfied that
the applicant has, in good faith, attempted to resolve the dispute by
negotiation.
(3) At any time after commencement of proceedings on an application
under this section, the arbitrator may require the service provider to
cause notice of the proceedings to be given to all other persons to which
the service provider provides access to the service concerned.
(4) Subject to this section and the regulations, the Commercial Arbitration
Act 1984 applies to an arbitration under this section, and to any
determination arising from an arbitration under this section, as if a
reference in that Act to an award were a reference to a determination
under this section.
(5) Sections 24B24E of the Independent Pricing and Regulatory Tribunal
Act 1992 apply to an arbitration under this section in the same way as
they apply to an arbitration under section 24A of that Act, and so apply
as if:
(a) a reference in those sections to a government agency were a
reference to a service provider, and
(b) section 24B (2) and (3) (b) and (c) of that Act were omitted,
except that section 15 of that Act does not apply in relation to any
determination arising from an arbitration under this section.
(6) In considering the terms of a proposed determination, the arbitrator
must have regard to such matters as are prescribed by the regulations.
Note. See also section 41 in relation to the application of pricing principles.
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Clause 41 Water Industry Competition Bill 2006
Part 3 Access to infrastructure services
(7) Before making a determination, the arbitrator:
(a) must cause copies of the proposed determination to be given to
each of the parties to the dispute, and
(b) must give each of the parties an opportunity to make submissions
to the arbitrator in relation to the proposed determination.
(8) Subject to subsection (9), the arbitrator must use his or her best
endeavours to determine the dispute within 6 months after the
application for the dispute to be determined was made to IPART.
(9) If the access seeker seeks access in relation to any activity for which it
would require, but does not yet hold, a licence under Part 2:
(a) the arbitrator may adjourn proceedings for such time as the
arbitrator considers reasonable for the purpose of enabling the
access seeker to obtain such a licence, and
(b) if the access seeker fails to obtain such a licence within that time,
may make a determination refusing the access sought.
(10) In making a determination under this section:
(a) the arbitrator must give effect to any access undertaking to which
the service concerned is subject, and
(b) the arbitrator must not include in the determination any provision
that requires a service provider to do, or not to do, anything that
would put it in breach of its obligations under any existing access
determination or under this or any other Act or law.
(11) On making a determination under this section, the arbitrator must cause
a notice of the making of the determination (which notice must include
a summary of the determination) to be given to IPART.
(12) On receiving such a notice, IPART must cause the information
contained in the notice to be made available to the public on IPART's
internet website.
Division 7 Administration of access regime
41 Pricing principles
(1) For the purposes of this Part:
(a) IPART must have regard to the pricing principles when deciding
whether or not to approve an access undertaking for an
infrastructure service, and
(b) an arbitrator must have regard to the pricing principles when
determining a dispute in relation to the pricing of access to an
infrastructure service the subject of a coverage declaration.
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Water Industry Competition Bill 2006 Clause 42
Access to infrastructure services Part 3
(2) For the purposes of this section, the pricing principles in relation to any
infrastructure service are as follows:
(a) the price of access should generate expected revenue for the
service that is at least sufficient to meet the efficient costs of
providing access to the service, and include a return on
investment commensurate with the regulatory and commercial
risks involved,
(b) the price of access should allow multi-part pricing and price
discrimination when it aids efficiency,
(c) the price of access should not allow a vertically integrated service
provider to set terms and conditions that discriminate in favour of
its downstream operations, except to the extent to which the cost
of providing access to other operators is higher,
(d) the price of access should provide incentives to reduce costs or
otherwise improve productivity.
(3) These principles must be implemented in a manner that is consistent
with any relevant pricing determinations for the supply of water and the
provision of sewerage services, including (where applicable) the
maintenance of "postage stamp pricing" (that is, a system of pricing in
which the same kinds of customers within the same area of operations
are charged the same price for the same service).
42 Service providers to have approved cost allocation manuals
(1) Within 3 months after an infrastructure service becomes the subject of
a coverage declaration, the service provider:
(a) must keep separate accounts for such of its infrastructure services
as are the subject of the declaration, and
(b) must submit a cost allocation manual to IPART in relation to that
infrastructure.
(2) A cost allocation manual must be in the form of a document that, in
accordance with any rules under subsection (3), sets out the basis on
which the service provider proposes to establish and maintain accounts
for those of its infrastructure services as are the subject of a coverage
declaration.
(3) The Minister may from time to time, by order published in the Gazette,
establish rules for the preparation of cost allocation manuals.
(4) IPART may approve a service provider's cost allocation manual as
submitted, or may require the service provider to amend it and resubmit
it for approval.
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Clause 43 Water Industry Competition Bill 2006
Part 3 Access to infrastructure services
(5) On and from the expiry of 3 months from the date on which IPART
approves a service provider's cost allocation manual in relation to
infrastructure services the subject of a coverage declaration, the service
provider must ensure that costs are allocated between each of those
services, and between those services and its other activities, in
accordance with the manual.
(6) A cost allocation manual may only be varied with the consent of
IPART.
(7) A service provider must keep its cost allocation manual available for
inspection by members of the public, free of charge, during normal
office hours.
(8) It is sufficient compliance with subsection (7) if a copy of the cost
allocation manual is made available to the public on the service
provider's internet website.
(9) Copies of the cost allocation manual are to be made available to
members of the public, at cost, during normal office hours.
(10) A service provider must not fail to comply with the requirements of this
section.
Maximum penalty: 500 penalty units (in the case of a corporation) and
50 penalty units (in any other case).
43 Hindering access to certain services
(1) The provider or a user of a service the subject of a coverage declaration
or an access undertaking, or a body corporate related to the provider or
a user of the service, must not engage in conduct for the purpose of
preventing or hindering any other person from obtaining or exercising
rights of access to the service.
Maximum penalty: 500 penalty units (in the case of a corporation) and
50 penalty units (in any other case).
(2) A person may be taken to have engaged in conduct for the purpose
referred to in subsection (1) even though, after all the evidence has been
considered, the existence of that purpose is ascertainable only by
inference from the conduct of the person or from other relevant
circumstances.
(3) Subsection (2) does not limit the manner in which the purpose of a
person may be established for the purposes of subsection (1).
(4) In this section, a user of a service includes a person who has a right to
use the service.
Page 24
Water Industry Competition Bill 2006 Clause 44
Access to infrastructure services Part 3
44 Register of infrastructure services
(1) IPART is to maintain a register of:
(a) infrastructure services the subject of coverage declarations, and
(b) infrastructure services the subject of binding non-coverage
declarations, and
(c) infrastructure services the subject of access undertakings.
(2) The regulations may make provision with respect to the manner and
form in which the register is to be kept and the nature of the information
to be included in the register.
(3) IPART must keep the register available for inspection by members of
the public, free of charge, during normal office hours.
(4) It is sufficient compliance with subsection (3) if a copy of the register is
made available to the public on IPART's internet website.
(5) Copies of entries in the register are to be made available to members of
the public, at cost, during normal office hours.
Page 25
Clause 45 Water Industry Competition Bill 2006
Part 4 Sewer mining
Part 4 Sewer mining
45 Application of Part
This Part applies to sewerage infrastructure whose service provider:
(a) has lodged with IPART a notice:
(i) that sets out the service provider's policy as to whether,
and on what terms, it will permit sewer miners to draw
from the contents of the infrastructure, and
(ii) that indicates that the service provider is willing to allow
disputes as to its granting or refusal of such permission to
be referred to IPART for arbitration, and
(b) has not subsequently lodged with IPART any notice that
indicates that the service provider is no longer willing to allow
such disputes to be so referred.
46 Sewer mining determinations
(1) If a dispute exists between a service provider and a sewer miner:
(a) as to the terms of any agreement under which the sewer miner is
to be permitted to draw from the contents of the service
provider's sewerage infrastructure, or
(b) as to any matter arising under an agreement referred to in
paragraph (a) that provides for a dispute as to that matter to be
dealt with in accordance with this section, or
(c) as to any matter arising under a determination under this section,
either party to the dispute may apply to IPART for the dispute to be
determined by arbitration.
(2) The dispute may be dealt with by IPART or by such other person as
IPART may nominate to arbitrate the dispute.
(3) At any time after commencement of proceedings on an application
under this section, the arbitrator may require the service provider to
cause notice of the proceedings to be given to other persons permitted
to draw from the contents of the service provider's sewerage
infrastructure.
(4) Subject to this section and the regulations, the Commercial Arbitration
Act 1984 applies to an arbitration under this section, and to any
determination arising from an arbitration under this section, as if a
reference in that Act to an award were a reference to a determination
under this section.
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Water Industry Competition Bill 2006 Clause 46
Sewer mining Part 4
(5) In considering the terms of a proposed determination, the arbitrator:
(a) must give effect to the service provider's policy with respect to
the granting of permission to draw from the contents of its
sewerage infrastructure, and
(b) subject to paragraph (a), must have regard to such matters as are
prescribed by the regulations.
(6) Before making a determination, the arbitrator:
(a) must cause copies of the proposed determination to be given to
each of the parties to the dispute, and
(b) must give each of the parties an opportunity to make submissions
to the arbitrator in relation to the proposed determination.
(7) The arbitrator must use his or her best endeavours to determine the
dispute within 6 months after the application for the dispute to be
determined is made to IPART.
(8) On making a determination under this section, the arbitrator must cause
a notice of the determination (which notice must include a summary of
the determination) to be given to IPART.
(9) On receiving such a notice, IPART must cause the information
contained in the notice to be made available to the public on IPART's
internet website.
Page 27
Clause 47 Water Industry Competition Bill 2006
Part 5 Operation of water retail market
Part 5 Operation of water retail market
Division 1 Resolution of disputes between small retail
customers and licensed retail suppliers
47 Internal review of certain decisions disputed by small retail customers
(1) A small retail customer may apply to a licensed retail supplier for a
review of the retail supplier's decision in relation to any matter arising
under a water supply or sewerage service contract or any other matter
prescribed by the regulations for the purposes of this subsection.
(2) The regulations:
(a) may establish the procedures for making an application and for
dealing with an application, and
(b) may impose conditions on retail suppliers' licences relating to the
provision and implementation of procedures for dealing with an
application, and
(c) may treat a failure to make a decision within a specified period as
a decision of a particular kind.
(3) An application is to be made and dealt with free of charge to the
applicant.
48 Review of decisions under approved ombudsman scheme
(1) A small retail customer, and any other person of a class prescribed by
the regulations, may apply to the ombudsman for review of a decision
in a dispute or complaint to which the scheme relates.
(2) Except as provided by the scheme or by the regulations, a person does
not have a right of review under this section in respect of a decision for
which a review may be sought under section 47 unless the decision has
been the subject of review under that section.
(3) A review under this section is to be free of charge to small retail
customers and to other persons of such classes as are prescribed by the
regulations.
(4) This section does not limit or otherwise affect the jurisdiction of the
Consumer, Trader and Tenancy Tribunal.
(5) The ombudsman may decline to deal with a matter if it has been, is
being or should be dealt with by another person or tribunal or there are,
in the ombudsman's opinion, not sufficient grounds for further
investigation.
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Water Industry Competition Bill 2006 Clause 49
Operation of water retail market Part 5
(6) Without limiting subsection (5), the ombudsman may deal with a matter
by making arrangements for it to be referred to another person or
tribunal.
49 Approved ombudsman scheme
(1) The Minister may approve an ombudsman scheme for the purposes of
this Act, being a scheme that provides for the appointment of an
ombudsman to deal with:
(a) disputes and complaints under water supply or sewerage service
contracts entered into with small retail customers, and
(b) any other disputes and complaints of such classes (whether or not
under water supply or sewerage service contracts referred to in
paragraph (a)) as are prescribed by the regulations.
(2) Before approving such a scheme, the Minister must be satisfied that the
scheme meets the following objectives:
(a) that all licensed retail suppliers that are required to be members
of the scheme are members of the scheme, have agreed to be
bound by decisions of the ombudsman under the scheme and, as
members, are so bound,
(b) that the scheme has satisfactory arrangements in place to deal
with all disputes and complaints referred to in subsection (1),
(c) that the ombudsman will be able to operate independently of all
licensed retail suppliers in exercising functions under the scheme,
(d) that the scheme will be accessible to small retail customers and
other persons prescribed by the regulations,
(e) that membership of the scheme will be accessible to all potential
members and will provide appropriate representation for all
members in relation to the scheme's governing body,
(f) that, without limiting any other application of the scheme, the
scheme will apply to all disputes and complaints arising under
water supply or sewerage service contracts,
(g) that the scheme will operate expeditiously and without cost to
small retail customers and to other persons of such classes as are
prescribed by the regulations,
(h) that the scheme will allow small retail customers to choose
whether or not they wish to be bound by determinations under the
scheme,
(i) that the scheme will satisfy best practice benchmarks for schemes
of a similar kind, both in terms of its constitution and procedure
and in terms of its day to day operations,
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Clause 50 Water Industry Competition Bill 2006
Part 5 Operation of water retail market
(j) that the scheme will provide for a monetary limit on claims
covered by the scheme of an amount or amounts approved by the
Minister,
(k) that the scheme will maintain the capacity of the ombudsman,
where appropriate, to refer disputes or complaints to other
forums,
(l) that the scheme will require the ombudsman to inform the
Minister of substantial breaches of this Act or the regulations, or
the conditions of a licence, of which the ombudsman becomes
aware,
(m) such other objectives as are prescribed by the regulations.
(3) A scheme may treat a failure to make a decision within a specified
period as a decision of a particular kind.
(4) The Minister may at any time revoke an approval under this section.
(5) If the regulations prescribed a dispute or complaint involving a person
other than a licensed retail supplier as a dispute or complaint to which
an approved scheme may apply, the regulations may make it an offence
for the person to fail to comply with a decision of the ombudsman under
the scheme.
(6) Notice of any approval given by the Minister under this section, and of
the revocation of any such approval, is to be published in the Gazette.
(7) Subject to this section, the same scheme may be approved for the
purposes of both this Act and any other Act or law.
50 Licence conditions relating to approved ombudsman scheme
It is a condition of a retail supplier's licence under which a licensed
retail supplier supplies water to small retail customers that:
(a) the retail supplier must be a member of an approved ombudsman
scheme, and
(b) the retail supplier is bound by, and must comply with, any
decision of the ombudsman under the scheme relating to a
dispute or complaint involving the retail supplier and a small
retail customer.
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Water Industry Competition Bill 2006 Clause 51
Operation of water retail market Part 5
Division 2 Monopoly suppliers
51 Declaration of monopoly suppliers
(1) The Minister may, by order published in the Gazette, declare that a
specified licensed retail supplier or licensed network operator is a
monopoly supplier in relation to:
(a) a specified water supply or sewerage service, and
(b) a specified area, and
(c) a specified class of customers.
(2) Such a declaration may only be made in relation to a service if the
Minister is satisfied:
(a) that it is a service:
(i) for which there are no other suppliers to provide
competition in the part of the market concerned, and
(ii) for which there is no contestable market by potential
suppliers in the short term in that part of the market, and
(b) in the case of a water supply service for recycled water, that
connection of land to that service is required by or under some
other Act,
and must be revoked if the Minister ceases to be satisfied as to any of
those matters.
52 Pricing determinations for monopoly services
(1) The Minister may refer either or both of the following matters to IPART
for investigation and report:
(a) the determination of the pricing for any service in respect of
which a declaration is in force under section 51,
(b) a periodic review of pricing policies in respect of any such
service.
(2) The provisions of Part 3 of the Independent Pricing and Regulatory
Tribunal Act 1992 in relation to government monopoly services apply
to and in respect of a matter referred to IPART under this section in the
same way as they apply to and in respect of a matter referred to IPART
under section 12 of that Act.
(3) It is a condition of any licence held by a monopoly supplier that the
supplier must comply with IPART's determination in relation to a
matter so referred.
Page 31
Clause 53 Water Industry Competition Bill 2006
Part 5 Operation of water retail market
53 Obligations of monopoly suppliers
(1) It is a condition of a licence held by a monopoly supplier for any water
supply or sewerage service that the supplier must, in accordance with
the declaration for that service, supply that service to any eligible
premises to which the owner of the premises requests the supplier to
provide that service.
(2) In this section, eligible premises, in relation to a water supply or
sewerage service, means premises to which water industry
infrastructure by means of which the service is provided is available.
Division 3 Retailers of last resort
54 Declaration of retailers of last resort
The Minister may, by order published in the Gazette, declare that a
specified person (whether a licensed retail supplier or a public water
utility) is the retailer of last resort in relation to the supply of water or
the provision of sewerage services within the whole or any specified
part of its area of operations.
55 Preparation of contingency plans
(1) As soon as practicable after a person becomes a retailer of last resort,
the person must, in accordance with the regulations, submit for the
Minister's approval a contingency plan setting out the arrangements
that are in place to ensure that it can meet its obligations as a retailer of
last resort.
(2) The Minister may approve a contingency plan as submitted, or may
require the retailer of last resort to amend it and resubmit it for approval.
(3) A contingency plan may only be varied with the consent of the Minister.
(4) In the case of a retailer of last resort that is a licensed retail supplier:
(a) submission of a contingency plan in accordance with subsection
(1), and
(b) maintenance of the arrangements set out in its contingency plan,
are conditions of the retail supplier's licence.
56 Minister may declare supply failure
(1) The Minister may, by order in writing served on:
(a) a licensed retail supplier, and
(b) the relevant retailer of last resort,
declare a supply failure in relation to the licensed retail supplier.
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Water Industry Competition Bill 2006 Clause 57
Operation of water retail market Part 5
(2) Such an order may not be given except in such circumstances as are
prescribed by the regulations.
57 Effect of declaration of supply failure
(1) Subject to the regulations and the terms of the order:
(a) the licensed retail supplier, on being served with such an order,
must cease supplying water or providing sewerage services to
those customers specified by the order, and
(b) a retailer of last resort, on being served with such an order, must
commence supplying water or providing sewerage services to
such of those customers as are within the area in respect of which
it is the retailer of last resort, and
(c) those customers become, in relation to the supply of water or the
provision of sewerage services, the customers of the relevant
retailer of last resort.
(2) In the case of a retailer of last resort that is a licensed retail supplier,
compliance with such an order is a condition of the retail supplier's
licence.
(3) Each such customer and the relevant retailer of last resort are taken to
have entered into a special circumstances contract in such terms as are
prescribed by the regulations for the purposes of this section.
(4) Subsection (3) does not apply in circumstances in which section 36 (4)
of the Hunter Water Act 1991, section 553A (2) of the Local
Government Act 1993 or section 55 (3B) of the Sydney Water Act 1994
applies.
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Clause 58 Water Industry Competition Bill 2006
Part 6 Work relating to water industry infrastructure
Part 6 Work relating to water industry infrastructure
58 Erection and placement of water industry infrastructure
(1) This section applies to work connected with the erection, installation,
extension, alteration, maintenance or removal of any water industry
infrastructure.
(2) For the purposes of this Act, a licensed network operator:
(a) may carry out work to which this section applies, and
(b) in particular, may carry out any such work in or under a public
road or public reserve.
(3) No such work (other than routine connections, repairs or maintenance
work) may be carried out unless the network operator:
(a) has given the local council or roads authority notice of the
proposal to carry out the work, and
(b) has given the local council or roads authority a reasonable
opportunity (being at least 40 days from the date on which the
notice was given) to make submissions to the network operator in
relation to the proposal, and
(c) has given consideration to any such submissions.
(4) Subsection (3) does not apply to the carrying out of any such work to
cope with emergencies.
(5) Work to which this section applies is exempt from the requirement for
an approval under the Local Government Act 1993.
(6) Section 138 of the Roads Act 1993 does not apply to or in respect of
anything done, or to be done, pursuant to this section.
59 Damage to public roads and public reserves to be made good
(1) If a public road or public reserve is damaged:
(a) by a leakage from, or a bursting of, a licensed network operator's
water industry infrastructure, or
(b) by any work carried out by a licensed network operator,
the local council or roads authority may require the network operator to
make good the damage without delay.
(2) If the network operator fails to carry out appropriate work in accordance
with any such requirement, the local council or roads authority may
carry out the work itself.
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Water Industry Competition Bill 2006 Clause 60
Work relating to water industry infrastructure Part 6
(3) The cost of carrying out the work may be recovered by the local council
or roads authority in a court of competent jurisdiction as a debt owed to
it by the network operator.
60 Interference with water industry infrastructure by trees
(1) If a licensed network operator has reasonable cause to believe that a tree
is destroying, damaging or interfering with the network operator's water
industry infrastructure, the network operator may, by written notice,
require the owner of the land on which the tree is situated, within a
reasonable period specified in the notice, to remove the tree, including
all roots of the tree that are or may be destroying, damaging or
interfering with that infrastructure.
(2) The network operator must reimburse the owner for the reasonable
expenses of any action taken by the owner under this section unless the
network operator establishes that:
(a) after the water industry infrastructure was first constructed, an
owner or occupier planted the tree, or caused or permitted the tree
to be planted, in, on or near the infrastructure in circumstances in
which the owner or occupier should have known that destruction
of, damage to or interference with the infrastructure would result,
or
(b) the water industry infrastructure is located, within the land on
which the tree has been planted, on land that was the subject of
an easement in favour of the network operator (or a predecessor
of the network operator) or an easement for water supply or
sewerage purposes when the tree was planted.
(3) An owner given notice under this section may, with the consent of the
network operator and without destroying, damaging or interfering with
the network operator's water industry infrastructure, take steps, other
than removal of the tree, to eliminate the cause of the destruction of,
damage to or interference with that infrastructure and any reasonable
expectation of the destruction, damage or interference occurring in the
future.
(4) No compensation is payable by the network operator to a person for the
expenses of taking steps under subsection (3).
(5) If, in circumstances other than those referred to in subsection (3), an
owner fails to comply with a notice under this section within the period
specified in the notice or within any extension of that period allowed by
the network operator in writing, the network operator may remove the
tree at its own expense.
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Clause 61 Water Industry Competition Bill 2006
Part 6 Work relating to water industry infrastructure
(6) The network operator may recover from an owner the cost of removing
a tree under subsection (5), but only if the network operator establishes:
(a) that the tree was planted during the ownership of that owner, and
(b) that:
(i) an owner or occupier should have known that the planting
of the tree would result in the destruction of, damage to or
interference with the water industry infrastructure
concerned, or
(ii) the tree was planted on land that was then the subject of an
easement in favour of the network operator (or a
predecessor of the network operator) or an easement for
water supply or sewerage purposes.
(7) This section applies despite the existence of any tree preservation order
or environmental planning instrument, but does not apply to any tree
that is the subject of or is within an area that is the subject of:
(a) an interim heritage order, or a listing on the State Heritage
Register, under the Heritage Act 1977, or
(b) an order in force under section 136 of the Heritage Act 1977, or
(c) an interim protection order under the National Parks and Wildlife
Act 1974, or
(d) a protection conferred by any similar law.
(8) Nothing done by an owner of land in compliance with a notice under
this section, or by a licensed network operator under subsection (5),
constitutes an offence against any law under which a tree preservation
order or environmental planning instrument relating to the land is made.
(9) In this section, tree includes shrub or other plant.
61 Obstruction of water mains and sewer mains
(1) This section applies if a licensed network operator has reasonable cause
to believe that any of its water mains or sewer mains could be damaged,
destroyed or adversely affected by any nearby structure or thing that,
since the water mains or sewer mains were laid, has been erected or
installed on a public road or public reserve.
(2) In those circumstances, the network operator:
(a) may serve a written notice on the person having control of the
structure or thing requiring that person to modify or remove it, or
(b) in an emergency, may, at its own expense, modify or remove the
structure or thing itself.
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Water Industry Competition Bill 2006 Clause 62
Work relating to water industry infrastructure Part 6
(3) A notice served on a person under subsection (2) (a):
(a) must specify the work to be carried out, and
(b) must specify a reasonable time within which the work is to be
carried out.
(4) If the person fails to carry out the work in accordance with the notice,
the network operator may carry out the work itself.
(5) The cost of:
(a) carrying out the work referred to in the notice, and
(b) repairing any damage done to the water main or sewer main by
the structure or thing,
may be recovered by the network operator in a court of competent
jurisdiction as a debt owed to it by the person.
(6) A licensed network operator may apply for an injunction to prevent a
structure or thing being placed in, on or near any of its water mains or
sewer mains.
(7) A licensed network operator may take action under this section even if
the person having control of the structure or thing owns or occupies the
land in, on or over which the water main or sewer main is situated.
(8) In the circumstances referred to in subsection (7):
(a) the network operator is liable to the owner of the structure or
thing for any loss or damage suffered by the owner as a
consequence of the work referred to in subsection (4), and
(b) the costs referred to in subsection (5) are not recoverable under
that subsection,
unless the existence, in its present position, of the structure or thing
concerned contravenes the terms of any easement, agreement or other
authority that supports the presence of the water main or sewer main in,
on or over the land.
62 Altering position of conduits
(1) A licensed network operator may serve a written notice on a person if:
(a) the network operator needs an alteration to be made in the
position of a conduit owned by the person, and
(b) the alteration would not permanently damage the conduit or
adversely affect its operation.
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Clause 63 Water Industry Competition Bill 2006
Part 6 Work relating to water industry infrastructure
(2) The notice:
(a) must specify the work to be carried out, and
(b) must specify a reasonable time within which the work is to be
carried out, and
(c) must include an undertaking by the network operator to pay the
reasonable cost of carrying out the work.
(3) If the work is not carried out as required by the notice, the network
operator may carry out the work in a manner that does not permanently
damage the conduit or adversely affect its operation.
(4) In this section, conduit means anything that is in or under a public road
or public reserve (or any other land on which no building or other
structure is located) and is used for the conveyance of a substance,
energy or signals.
63 Charges for placement of water industry infrastructure
No annual or other periodic or special charge is payable by a licensed
network operator to a local council or roads authority in respect of any
water industry infrastructure located in a public reserve or public road
or in respect of the space in a public reserve or public road that is
occupied by any such infrastructure.
64 Ownership of water industry infrastructure
(1) A licensed network operator is the owner of its water industry
infrastructure, whether or not the land in, on or over which it is situated
is owned by the network operator.
(2) A licensed network operator's water industry infrastructure is not to be
taken in execution of any judgment against a person other than the
network operator under any process of a court.
65 Meter readers
(1) A licensed network operator or licensed retail supplier may appoint any
of its employees or agents as a meter reader.
(2) Each meter reader so appointed must be issued with an identity
certificate containing the following:
(a) the name of the meter reader,
(b) the name of the network operator or retail supplier,
(c) a passport-style photograph of the meter reader's face,
(d) a statement to the effect that, pursuant to this Act, the meter
reader is authorised to read meters on behalf of the network
operator or retail supplier.
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Water Industry Competition Bill 2006 Clause 65
Work relating to water industry infrastructure Part 6
(3) A meter reader so appointed may, during normal business hours, enter
any premises for the purpose of reading a meter that measures:
(a) water supplied from water mains that are controlled by the
network operator or by means of which the retail supplier
supplies water to those premises, or
(b) sewage discharged into sewer mains that are controlled by the
network operator or by means of which the retail supplier
provides sewerage services to those premises.
(4) On request by any person who appears to be in occupation of the
premises, a meter reader so appointed must produce his or her identity
certificate for inspection.
Maximum penalty: 10 penalty units.
(5) This section does not authorise a meter reader to enter such part of a
building as is being used for residential purposes except with the
consent of the occupier.
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Clause 66 Water Industry Competition Bill 2006
Part 7 Offences
Part 7 Offences
Division 1 Offences
66 Exposure of underground pipes
A person must not, by opening any ground, expose a licensed network
operator's water industry infrastructure:
(a) without lawful excuse, or
(b) without having given the network operator at least 2 days' written
notice of intention to open the ground.
Maximum penalty: 100 penalty units (in the case of a corporation) and
20 penalty units (in any other case).
67 Interference with water industry infrastructure
A person must not interfere with a licensed network operator's water
industry infrastructure unless authorised to do so by the network
operator.
Maximum penalty: 200 penalty units (in the case of a corporation) and
50 penalty units (in any other case).
68 Interference with meters
A person must not alter or otherwise interfere with a meter that is
connected to a licensed network operator's water main or sewer main,
or to any seal attached to such a meter, unless authorised to do so by the
network operator.
Maximum penalty: 200 penalty units (in the case of a corporation) and
50 penalty units (in any other case).
69 Unauthorised connections
A person must not connect any pipe or fitting to a licensed network
operator's water main or sewer main unless authorised to do so by the
network operator.
Maximum penalty: 200 penalty units (in the case of a corporation) and
50 penalty units (in any other case).
70 Unauthorised increase in capacity of connections
A person must not increase the capacity of an existing connection to a
licensed network operator's water main or sewer main unless authorised
to do so by the network operator.
Maximum penalty: 200 penalty units (in the case of a corporation) and
50 penalty units (in any other case).
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Water Industry Competition Bill 2006 Clause 71
Offences Part 7
71 Offence to discharge into drains and sewers
A person must not discharge any substance into a licensed network
operator's stormwater drain or sewer main unless authorised to do so
under an arrangement with the network operator or a licensed retail
supplier.
Maximum penalty: 100 penalty units (or 200 penalty units in the case of
a corporation).
72 Unauthorised use of water
A person must not take, waste, divert, consume or use any water
conveyed by a licensed network operator's water infrastructure unless
authorised to do so under an arrangement with the network operator or
a licensed retail supplier.
Maximum penalty: 200 penalty units (in the case of a corporation) and
50 penalty units (in any other case).
73 Unlicensed plumbing and drainage work
(1) A person must not do any kind of plumbing work intended for direct or
indirect connection with a licensed network operator's water main, or
any kind of drainage work intended for direct or indirect connection to
a licensed network operator's sewer main, unless the person:
(a) holds an endorsed contractor licence or a supervisor certificate in
force under the Home Building Act 1989 authorising the holder to
do that kind of work, or
(b) does the work under the immediate supervision of the holder of a
licence or certificate referred to in paragraph (a), or
(c) holds a tradesperson certificate in force under the Home Building
Act 1989 authorising the holder to do that work under supervision
and does that work under the general supervision of the holder of
a licence or certificate referred to in paragraph (a).
Maximum penalty: 100 penalty units.
(2) The regulations may make provision for or with respect to any
plumbing work or drainage work, including the standards for and
supervision of any such work and the grant of permission by a licensed
network operator for the performance of any such work.
Division 2 Powers of inspectors
74 Inspectors
(1) The Minister may appoint inspectors for the purposes of this Act or of
any specified provision of this Act.
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Clause 75 Water Industry Competition Bill 2006
Part 7 Offences
(2) Each inspector must be issued with an identity certificate containing the
following:
(a) the name of the inspector,
(b) a passport-style photograph of the inspector's face,
(c) a statement to the effect that the inspector is authorised to enter
premises for the purpose of this Act.
(3) Subject to any conditions to which his or her appointment as an
inspector is subject, an inspector may, during normal business hours,
enter any premises for the purpose of ascertaining whether an offence
against this Act or the regulations, or a contravention of the conditions
of a licence, has been committed.
(4) On request by any person who appears to be in occupation of the
premises, an inspector must produce his or her identity certificate for
inspection.
Maximum penalty: 10 penalty units.
(5) This section does not authorise an inspector to enter such part of a
building as is being used for residential purposes except with the
consent of the occupier or under the authority of a warrant of entry.
75 Notice of entry
(1) Before an inspector exercises a power of entry under this Division, the
inspector must give the owner or occupier of the land written notice of
the intention to enter the land.
(2) The notice must specify the day on which the inspector intends to enter
the land and must be given before that day.
(3) This section does not require notice to be given:
(a) if entry to the land is made with the consent of the owner or
occupier of the land, or
(b) if entry is required in an emergency.
76 Use of force
(1) Reasonable force may be used for the purpose of gaining entry to any
land (other than such part of a building as is being used for residential
purposes) under a power conferred by this Division, but only if
authorised by the Minister in accordance with this section.
(2) The authority:
(a) must be in writing, and
(b) must be given in respect of the particular entry concerned, and
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Water Industry Competition Bill 2006 Clause 77
Offences Part 7
(c) must specify the circumstances that must exist before force may
be used.
77 Notification of use of force or urgent entry
(1) An inspector:
(a) who uses force for the purpose of gaining entry to land, or
(b) who enters land in an emergency without giving written notice to
the owner or occupier of the land,
must promptly advise the Minister of that fact.
(2) The Minister must give notice of the entry to such persons or authorities
as appear to the Minister to be appropriate in the circumstances.
78 Care to be taken
(1) In the exercise of a power under this Division, an inspector must do as
little damage as possible.
(2) As far as practicable, entry onto fenced land is to be made through an
existing opening in the enclosing fence or, if entry through an existing
opening is not practicable, through a new opening.
(3) Any new opening is to be properly closed when the need for entry
ceases.
(4) If, in the exercise of a power under this Division, any pit, trench, hole
or bore is made, the inspector:
(a) must fence it, and keep it securely fenced, so long as it remains
open or not sloped down, and
(b) must, without unnecessary delay, close it, fill it or slope it down.
79 Compensation
An inspector must pay compensation to the owner of any land in respect
of which a power has been exercised under this Division for any loss or
damage arising from the exercise of the power, but is not so liable to the
extent to which the loss or damage arises from work done for the
purposes of an inspection that reveals that the owner has contravened
this Act or the regulations.
80 Warrants of entry
(1) An inspector may apply to an authorised officer for a warrant of entry if
of the opinion that it is necessary for an inspector to enter and inspect
any land (including any building used for residential purposes) for the
purposes of this Act.
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Clause 81 Water Industry Competition Bill 2006
Part 7 Offences
(2) An authorised officer to whom such an application is made may, if
satisfied that there are reasonable grounds for doing so, issue a warrant
of entry authorising an inspector named in the warrant to enter and
inspect the land for the purposes of this Act.
(3) Division 4 of Part 5 of the Law Enforcement (Powers and
Responsibilities) Act 2002 applies to a warrant of entry under this
section in the same way as it applies to a search warrant under that Act.
(4) In this section, authorised officer has the same meaning as it has in the
Law Enforcement (Powers and Responsibilities) Act 2002.
81 Obstruction of inspectors
A person must not:
(a) prevent an inspector from exercising the inspector's functions
under this Act, or
(b) hinder or obstruct an inspector in the exercise of any such
function, or
(c) impersonate an inspector.
Maximum penalty: 200 penalty units (in the case of a corporation) and
50 penalty units (in any other case).
Division 3 General
82 Penalty notices
(1) An authorised official may serve a penalty notice on a person if it
appears to the official that the person has committed an offence against
this Act or the regulations, being an offence prescribed by the
regulations.
(2) A penalty notice is a notice to the effect that, if the person served does
not wish to have the matter determined by a court, the person may pay,
within the time and to the person specified in the notice, the penalty
prescribed by the regulations for the offence if dealt with under this
section.
(3) A penalty notice may be served personally or by post.
(4) If the amount of the penalty prescribed for the alleged offence is paid
under this section, no person is liable to any further proceedings for the
alleged offence.
(5) Payment under this section is not an admission of liability for the
purposes of, and does not affect or prejudice, any civil claim, action or
proceeding arising out of the same occurrence.
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Water Industry Competition Bill 2006 Clause 83
Offences Part 7
(6) The regulations:
(a) may prescribe an offence for the purposes of this section by
specifying the offence or by referring to the provision creating
the offence, and
(b) may prescribe the amount of penalty for the offence if dealt with
under this section, and
(c) may prescribe different amounts of penalty for different offences
or classes of offences.
(7) The amount of penalty prescribed under this section for an offence may
not exceed the maximum amount of penalty that could be imposed for
the offence by a court.
(8) This section does not limit the operation of any other provision of, or
made under, this or any other Act relating to proceedings which may be
taken in respect of offences.
(9) In this section, authorised official means a person appointed in writing
by the Minister as an authorised official for the purposes of this section.
83 Court may order disconnection and discontinuance of water supply
(1) A court that finds a person guilty of an offence under section 6672 may
make either or both of the following orders:
(a) an order that the premises to which the offence relates be
disconnected from the water mains of the licensed network
operator concerned,
(b) an order that the supply of water to those premises be restricted
or discontinued.
(2) An order under this section has effect regardless of the provisions of any
contract or other arrangement.
84 Court may order payment for stolen water
(1) A court that finds a person guilty of an offence under section 72 of
unlawfully causing water to be taken, wasted, diverted, consumed or
used may make an order directing the person to pay to the licensed
network operator or licensed retail supplier concerned such amount as
the court considers appropriate for the water so taken, wasted, diverted,
consumed or used.
(2) Such an order:
(a) may be made by a court on its own motion, or on the application
of the network operator or retail supplier, at any time within 6
months after the date of the finding, and
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Clause 84 Water Industry Competition Bill 2006
Part 7 Offences
(b) if made by a Local Court, may be enforced in a Local Court
exercising jurisdiction under Part 7 of the Local Courts Act 1982.
(3) Part 8 of the Civil Procedure Act 2005 applies to and in respect of an
order under this section that is made by a Local Court as if:
(a) the order were a judgment of a Local Court in civil proceedings,
and
(b) the amount ordered to be paid were a judgment debt, and
(c) the person against whom the order is made were a judgment
debtor, and
(d) the person in whose favour the order is made were a judgment
creditor.
(4) The remedy provided by this section is an alternative to any other
remedy that may be available apart from this section.
Page 46
Water Industry Competition Bill 2006 Clause 85
Functions of IPART Part 8
Part 8 Functions of IPART
Division 1 Licence auditing functions
85 Licence auditing functions
(1) IPART's functions under this Division are to monitor, and to report to
the Minister on, the extent to which licensed network operators and
licensed retail suppliers comply, or fail to comply, with the conditions
imposed on the licences held by them.
(2) In particular, IPART is to review each licence at intervals of not more
than 5 years, and at such other times as the Minister may direct, with the
first 5-year review commencing on the fifth anniversary of the granting
of the licence.
(3) A report with respect to such a review may include recommendations as
to the variation or revocation of existing licence conditions or the
imposition of new licence conditions.
86 Recovery of IPART's costs
(1) Each licensee is required to pay to the Treasurer the cost (as certified by
IPART) involved in and in connection with carrying out IPART's
functions under this Division in relation to the licensee.
(2) Without limitation, a licence may include terms and conditions relating
to the determination of the cost of carrying out those functions.
87 Power to direct licensees to keep records and furnish information
For the purposes of monitoring and reporting under this Division,
IPART may, by notice in writing served on a licensee, require the
licensee:
(a) to keep specified records, including any documents specified in
the notice, and
(b) to furnish specified information to IPART.
88 Failure to keep records or furnish information
(1) A person must not, without reasonable excuse, refuse or fail to comply
with a notice served under section 87.
(2) Without limitation, it is a reasonable excuse for the purposes of
subsection (1) that to comply with the notice might tend to incriminate
a natural person or make the person liable to any forfeiture or penalty.
(3) A person must not give to IPART any information that the person
knows to be false or misleading in a material particular (unless the
person informs IPART of that fact).
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Clause 89 Water Industry Competition Bill 2006
Part 8 Functions of IPART
(4) A person must not take any action that detrimentally affects the
employment of another person, or threaten to do so, because that other
person has assisted IPART in any investigation.
Maximum penalty: 100 penalty units or imprisonment for 6 months, or
both.
89 Annual reports
(1) As soon as practicable after 30 June (but on or before 31 October) in
each year, IPART must prepare and forward to the Minister a report on
the extent to which licensees have complied, or failed to comply, with
the conditions imposed on their licences during the 12 months ending
on 30 June in that year.
(2) The Minister must lay the report or cause it to be laid before both
Houses of Parliament as soon as practicable after receiving the report.
Division 2 Regulatory functions
90 Regulatory functions
(1) IPART's regulatory functions under this Division are:
(a) the functions conferred on it by Part 2, and
(b) the functions conferred on it by Part 3, and
(c) the functions conferred on it by section 46, and
(d) the functions conferred on it by section 52, and
(e) such of IPART's other functions under this Act as are prescribed
by the regulations for the purposes of this section.
(2) Part 4B of the Independent Pricing and Regulatory Tribunal Act 1992
applies in relation to IPART's regulatory functions under this Act.
Division 3 Miscellaneous
91 Investigations by IPART
(1) IPART may conduct investigations for the purpose of enabling it to
exercise its functions under this Act.
(2) Subject to this section, and except to the extent to which the regulations
otherwise provide, the provisions of Division 7 of Part 3 of the
Independent Pricing and Regulatory Tribunal Act 1992 apply to an
investigation under this section in the same way as they apply to an
investigation under that Act.
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Water Industry Competition Bill 2006 Clause 92
Functions of IPART Part 8
(3) Section 21 (1) of the Independent Pricing and Regulatory Tribunal Act
1992 does not apply so as to require IPART to hold any hearing for the
purposes of an investigation under this section.
92 IPART guidelines
(1) IPART may issue guidelines as to the manner in which it exercises its
functions under this Act.
(2) IPART must keep the guidelines available for inspection by members
of the public, free of charge, during normal office hours.
(3) It is sufficient compliance with subsection (2) if a copy of the guidelines
is made available to the public on IPART's internet website.
(4) Copies of the guidelines are to be made available to members of the
public, at cost, during normal office hours.
93 Exclusion of Part 3, Division 3, of Independent Pricing and Regulatory
Tribunal Act 1992
Division 3 of Part 3 of the Independent Pricing and Regulatory
Tribunal Act 1992 does not apply to or in respect of a service provider's
infrastructure services.
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Clause 94 Water Industry Competition Bill 2006
Part 9 Miscellaneous
Part 9 Miscellaneous
94 Delegation of functions
(1) The Minister and the Director-General may delegate to any person any
of their functions under this Act, other than this power of delegation.
(2) Despite subsection (1), the Director-General may sub-delegate to any
person any function that has been delegated to the Director-General by
the Minister, but only if the terms of the delegation authorise its
sub-delegation.
Note. See also section 49 of the Interpretation Act 1987 in relation to the
delegation of functions.
95 Service of documents
(1) A document that by this Act or the regulations is required to be served
on a person may be served:
(a) on an individual, by delivering it to the individual personally or
by sending it by post to (or leaving it in the individual's letterbox
at) the person's place of residence or business, and
(b) on a corporation, by sending it by post to (or leaving it in the
corporation's letterbox at) the corporation's registered office
within the meaning of the Corporations Act 2001 of the
Commonwealth.
(2) This section does not affect any other law governing the service of
documents.
96 Exclusion of personal liability
Any matter or thing done or omitted to be done by the Minister, the
Director-General or an inspector, or by any person acting under the
direction of the Minister or the Director-General, does not, if the matter
or thing was done or omitted to be done in good faith for the purpose of
executing this Act, subject that person personally to any action, liability,
claim or demand.
97 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provision
of this Act or the regulations, each person who is a director of the
corporation or who is concerned in the management of the corporation
is taken to have contravened the same provision, unless the person
satisfies the court that:
(a) the corporation contravened the provision without the person's
actual, imputed or constructive knowledge, or
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Water Industry Competition Bill 2006 Clause 98
Miscellaneous Part 9
(b) the person was not in a position to influence the conduct of the
corporation in relation to its contravention of the provision, or
(c) the person, if in such a position, used all due diligence to prevent
the corporation's contravention of the provision.
(2) A person may be proceeded against and convicted in respect of such a
contravention pursuant to this section whether or not the corporation has
been proceeded against or convicted in respect of that contravention.
(3) Nothing in this section affects a corporation's liability for an offence
committed by the corporation against this Act or the regulations.
(4) Without limiting any other law or practice regarding the admissibility
of evidence, evidence that an officer, employee or agent of a
corporation (while acting in his or her capacity as such) had, at any
particular time, a particular intention, is evidence that the corporation
had that intention.
98 Proceedings for offences
(1) Proceedings for an offence against this Act or the regulations may be
dealt with:
(a) summarily before a Local Court, or
(b) before the Supreme Court in its summary jurisdiction.
(2) If proceedings are brought before a Local Court, the maximum
monetary penalty that the Local Court may impose for the offence is
100 penalty units (in the case of a corporation) and 50 penalty units (in
any other case), despite any higher maximum monetary penalty
provided in respect of the offence.
99 Recovery of monetary penalties
Any unpaid fee, charge or other amount owed to the Minister or to
IPART, and any monetary penalty imposed on a licensee by the
Minister or by IPART, may be recovered in any court of competent
jurisdiction as a debt due to the Crown.
100 Evidentiary certificates
A certificate that is issued by the Director-General and that states that,
on a specified date or during a specified period:
(a) a specified person was or was not a licensee under a specified
licence or under a licence of a specified kind, or
(b) a specified person's licence was or was not in specified terms, or
(c) a specified person's licence was or was not subject to specified
conditions, or
Page 51
Clause 101 Water Industry Competition Bill 2006
Part 9 Miscellaneous
(d) a specified person's licence was or was not suspended or
cancelled,
is admissible in legal proceedings as evidence of the matters so stated.
101 Regulations
(1) The Governor may make regulations not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted to
be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
(2) In particular, the regulations may make provision for or with respect to
the matters set out in Schedule 2.
(3) A regulation may create an offence punishable by a penalty not
exceeding 250 penalty units (in the case of a corporation) and 100
penalty units (in any other case).
(4) A regulation may apply, adopt or incorporate the provisions of any
standard, code or specification, either as in force as at a particular day
or as in force for the time being.
102 Amendment of other Acts
Each Act specified in Schedule 3 is amended as set out in that Schedule.
103 Savings, transitional and other provisions
Schedule 4 has effect.
104 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 5
years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of the period of 5 years.
Page 52
Water Industry Competition Bill 2006
Scheduled areas Schedule 1
Schedule 1 Scheduled areas
(Section 22)
The area of operations of the Sydney Water Corporation, as referred to in section 10
of the Sydney Water Act 1994
The area of operations of the Hunter Water Corporation, as referred to in section 16
of the Hunter Water Act 1991
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Water Industry Competition Bill 2006
Schedule 2 Regulation-making powers
Schedule 2 Regulation-making powers
(Section 101)
1 Water quality and public health
Matters relating to water quality and public health, including the
following:
(a) the production, treatment, storage and conveyance of water,
(b) the treatment, storage and conveyance of sewage,
(c) the assessment of risks to water quality and the treatment of water
or sewage to avert such risks,
(d) the implementation of water quality guidelines.
2 Construction and maintenance of water industry infrastructure
Matters relating to the construction and maintenance of water industry
infrastructure, including the following:
(a) the design, construction, maintenance and renewal of water and
sewage pipes and associated equipment,
(b) the construction, alteration, extension, maintenance, repair and
operation of water industry infrastructure,
(c) the procedures to be followed in preparing for, and dealing with,
accidents and emergencies,
(d) the development and implementation by licensed network
operators of plans to ensure the safe operation and renewal of
water industry infrastructure,
(e) the development and implementation by licensed network
operators of plans to ensure the safe connection of premises to
water industry infrastructure,
(f) the development and implementation by licensed network
operators of plans to ensure that:
(i) the supply of water and sewage by means of their water
industry infrastructure is reliable, and
(ii) the water and sewage so supplied is of an appropriate
quality,
including contingency plans in the event of the network operator
becoming unable to carry out the activities authorised by its
licence.
Page 54
Water Industry Competition Bill 2006
Regulation-making powers Schedule 2
3 Consumer protection
Matters relating to consumer protection, including the following:
(a) water supply or sewerage service contracts,
(b) the establishing of marketing codes of conduct in relation to the
supply of water and the provision of sewerage services,
(c) the development of payment plans for those suffering financial
hardship,
(d) the debt collection procedures to be observed by licensed retail
suppliers in relation to amounts owed by customers in connection
with the supply of water,
(e) the procedures to be followed when customers switch from one
supplier of water to another, including procedures with respect to
the transfer of information,
(f) the standards of service to be provided to customers by licensed
network operators and licensed retail suppliers in connection
with the supply of water and the provision of sewerage services,
(g) the procedures to be followed in relation to planning for failures
in water supply, including procedures for identifying the
existence of such failures and for arranging alternative water
supplies in the event of such failures,
(h) the installation, examination and testing of water and sewage
meters,
(i) the circumstances under which water supply or sewage collection
may be refused or discontinued,
(j) the regulation of ancillary market participants in their conduct of
ancillary market activities,
(k) the procedures to be adopted by licensed network operators and
licensed retail suppliers for the resolution of customer
complaints,
(l) the obligations of persons who obtain or receive information
about customers or prospective customers with respect to the
collection, keeping, disclosure or other use of that information
and the inclusion of such obligations in water supply or sewerage
service contracts.
4 Access to infrastructure services
Matters relating to access to infrastructure services, including the
following:
(a) the meeting of time limits in connection with the administration
of this Act,
Page 55
Water Industry Competition Bill 2006
Schedule 2 Regulation-making powers
(b) the rights and obligations of persons when negotiating access to
an infrastructure service the subject of a coverage declaration or
an access undertaking,
(c) arbitrators' functions in relation to the conduct of arbitrations for
the purposes of this Act,
(d) standard terms for inclusion in access agreements and access
determinations,
(e) the obligations that may be imposed on a service provider
pursuant to an access undertaking or access determination,
(f) the awarding of costs in relation to arbitrations conducted for the
purposes of this Act,
(g) the circumstances in which variations of an infrastructure service,
or alterations or extensions of the water industry infrastructure by
means of which an infrastructure service is provided, affect the
operation of any coverage declaration or binding non-coverage
declaration to which the service is subject.
5 Administration
Matters relating to administration, including the following:
(a) the conduct of investigations by IPART for the purposes of this
Act,
(b) the keeping, provision and publishing of records, information and
statistics in relation to:
(i) the operation of water mains and the supply of water, and
(ii) the operation of sewer mains and the collection of sewage,
and
(iii) the operation of stormwater drains and the collection of
stormwater, and
(iv) water quality, and
(v) the operation of water treatment processes, and
(vi) the environmental impact arising from the construction,
maintenance and operation of water industry infrastructure
and other activities carried out pursuant to a licence,
(c) the manner in which, and the period for which, information must
be made available on internet websites pursuant to the
requirements of this Act.
6 Other matters
Other matters, including the following:
(a) the carrying out of plumbing work and drainage work,
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Water Industry Competition Bill 2006
Regulation-making powers Schedule 2
(b) the use of water for fire-fighting purposes,
(c) the imposition of water restrictions,
(d) the prohibition and regulation of discharges into sewage pipes
and sewer mains,
(e) matters of a savings or transitional nature consequent on the
making of a coverage declaration, a revocation declaration or a
binding non-coverage declaration.
Page 57
Water Industry Competition Bill 2006
Schedule 3 Amendment of other Acts
Schedule 3 Amendment of other Acts
(Section 102)
3.1 Energy and Utilities Administration Act 1987 No 103
Section 3 Definitions
Omit "area." from paragraph (b) of the definition of State water agency in
section 3 (1).
Insert instead:
area,
and includes a licensed network operator or licensed retail
supplier within the meaning of the Water Industry Competition
Act 2006.
3.2 Fines Act 1996 No 99
Schedule 1 Statutory provisions under which penalty notices issued
Insert in alphabetical order:
Water Industry Competition Act 2006, section 82
3.3 Fluoridation of Public Water Supplies Act 1957 No 58
Section 6A Directions
Insert after section 6A (2):
(2A) Subsection (2) does not apply in relation to a direction given to a
licensed retail supplier within the meaning of the Water Industry
Competition Act 2006.
3.4 Hunter Water Act 1991 No 53
Section 36 Owner of land taken to have entered into customer contract
Insert after section 36 (2):
(3) A customer contract does not operate so as to impose obligations
on the Corporation or any owner of land in respect of the supply
of water, or the provision of a sewerage service, during the term
of any contract in that regard entered into between the owner of
the land and a licensed retail supplier within the meaning of the
Water Industry Competition Act 2006.
Page 58
Water Industry Competition Bill 2006
Amendment of other Acts Schedule 3
(4) If:
(a) the Corporation is a retailer of last resort within the
meaning of the Water Industry Competition Act 2006 in
relation to any water supply or sewerage service, and
(b) a direction in relation to that service is given to the
Corporation under section 56 of that Act,
the Corporation and the owner are taken to have entered into a
special circumstances contract in such terms as are prescribed by
the regulations for the purposes of this subsection.
3.5 Independent Pricing and Regulatory Tribunal Act 1992 No 39
[1] Section 24F Regulatory functions of Tribunal
Insert at the end of section 24F (f):
, and
(g) section 90 of the Water Industry Competition Act 2006.
[2] Section 24FC Licence auditing functions of Tribunal
Insert at the end of section 24FC (1) (e):
, and
(f) its functions under section 85 of the Water Industry
Competition Act 2006.
3.6 Law Enforcement (Powers and Responsibilities) Act 2002
No 103
Schedule 2 Search warrants under other Acts
Insert in alphabetical order:
Water Industry Competition Act 2006, section 80
3.7 Local Government Act 1993 No 30
Section 553A
Insert after section 553:
553A Special rates and charges not payable in relation to land provided
with private water supply or sewerage
(1) A special rate or charge is not payable in relation to any land in
respect of the supply of water, or the provision of a sewerage
service, during the term of any contract in that regard entered into
Page 59
Water Industry Competition Bill 2006
Schedule 3 Amendment of other Acts
between the owner of the land and a licensed retail supplier
within the meaning of the Water Industry Competition Act 2006.
(2) If:
(a) the council is a retailer of last resort within the meaning of
the Water Industry Competition Act 2006 in relation to any
water supply or sewerage service, and
(b) a direction in relation to that service is given to the council
under section 56 of that Act,
the council and the owner are taken to have entered into a special
circumstances contract in such terms as are prescribed by the
regulations for the purposes of this subsection.
3.8 Public Health Act 1991 No 10
[1] Section 10A Definitions
Insert after paragraph (e) of the definition of supplier of drinking water:
(f) a licensed network operator or licensed retail supplier
within the meaning of the Water Industry Competition Act
2006,
[2] Section 10IA
Insert after section 10I:
10IA Supply of water
A person must not, by means of a reticulated water supply
system, supply any other person with drinking water that is not fit
for human consumption.
Maximum penalty: 10,000 penalty units (in the case of a
corporation) and 2,500 penalty units (in any other case).
3.9 Sydney Water Act 1994 No 88
Section 55 Owner of land taken to have entered into customer contract
Insert after section 55 (3):
(3A) A customer contract does not operate so as to impose obligations
on the Corporation or any owner of land in respect of the supply
of water, or the provision of a sewerage service, during the term
of any contract in that regard entered into between the owner of
the land and a licensed retail supplier within the meaning of the
Water Industry Competition Act 2006.
Page 60
Water Industry Competition Bill 2006
Amendment of other Acts Schedule 3
(3B) If:
(a) the Corporation is a retailer of last resort within the
meaning of the Water Industry Competition Act 2006 in
relation to any water supply or sewerage service, and
(b) a direction in relation to that service is given to the
Corporation under section 56 of that Act,
the Corporation and the owner are taken to have entered into a
special circumstances contract in such terms as are prescribed by
the regulations for the purposes of this subsection.
3.10 Sydney Water Catchment Management Act 1998 No 171
Section 16 Specific functions
Insert after section 16 (1) (b):
(b1) to supply water to licensed network operators or licensed
retail suppliers within the meaning of the Water Industry
Competition Act 2006,
3.11 Water Management Act 2000 No 92
Dictionary
Insert at the end of paragraph (b) of the definition of local water utility:
, or
(c) a licensed network operator within the meaning of the
Water Industry Competition Act 2006.
Page 61
Water Industry Competition Bill 2006
Schedule 4 Savings, transitional and other provisions
Schedule 4 Savings, transitional and other
provisions
(Section 103)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so provide, take effect from
the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that
is earlier than the date of its publication in the Gazette, the provision
does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of its publication.
Part 2 Provisions consequent on enactment of this
Act
2 Deemed coverage declarations
(1) Subject to any revocation declaration under Division 3 of Part 3 of this
Act, each service specified in Column 1 of the Table to this clause is
taken to be the subject of a coverage declaration for the period specified
in relation to that service in Column 2 of that Table.
(2) In the Table to this clause, a reference to a reticulation network is a
reference to that part of Sydney Water Corporation's sewerage
infrastructure into which sewage is discharged from a customer's
connection point for conveyance to a treatment plant.
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Water Industry Competition Bill 2006
Savings, transitional and other provisions Schedule 4
Table
Column 1 Column 2
Description of service Period of coverage
Services within the Sydney Water Corporation's area of
operations
Sewerage: Bondi Reticulation Network
Connection of another party's works to Sydney 1 January 2007 to 31
Water Corporation's Bondi Reticulation Network December 2056
(inclusive)
Conveyance of sewage through Sydney Water 1 January 2007 to 31
Corporation's Bondi Reticulation Network from the December 2056
premises of another party's customers to the points (inclusive)
where the Network connects with the other party's
works
Sewerage: Malabar Reticulation Network
Connection of another party's works to Sydney 1 January 2007 to 31
Water Corporation's Malabar Reticulation Network December 2056
(inclusive)
Conveyance of sewage through Sydney Water 1 January 2007 to 31
Corporation's Malabar Reticulation Network from December 2056
the premises of another party's customers to the (inclusive)
points where the Network connects with the other
party's works
Sewerage: North Head Reticulation Network
Connection of another party's works to Sydney 1 January 2007 to 31
Water Corporation's North Head Reticulation December 2056
Network (inclusive)
Conveyance of sewage through Sydney Water 1 January 2007 to 31
Corporation's North Head Reticulation Network December 2056
from the premises of another party's customers to (inclusive)
the points where the Network connects with the
other party's works
3 References to access licences under Water Management Act 2000
The reference in section 6 (2) of this Act to an access licence under the
Water Management Act 2000 includes, in relation to any land or water
source not subject to that Act, a reference to a licence or permit under
the Water Act 1912.
Page 63
Water Industry Competition Bill 2006
Dictionary
Dictionary
(Section 3)
access agreement means an agreement referred to in section 39.
access determination means an arbitrator's determination under section 40.
access seeker, in relation to an infrastructure service, means a person who wants
access to the service or wants a change to some aspect of the person's existing access
to the service.
access undertaking means an access undertaking established under section 38.
approved ombudsman scheme means a scheme approved under section 49.
area of operations means:
(a) in relation to a licensee, the area within which the licensee is authorised to
exercise the powers conferred by the licence, and
(b) in relation to the Sydney Water Corporation, the area of operations established
for that Corporation under section 10 of the Sydney Water Act 1994, and
(c) in relation to the Hunter Water Corporation, the area of operations established
for that Corporation under section 16 of the Hunter Water Act 1991, and
(d) in relation to a water supply authority, the area of operations established for
that authority under section 289 of the Water Management Act 2000, and
(e) in relation to a council, the council's local government area under the Local
Government Act 1993, and
(f) in relation to a county council, the area of operations established for the county
council under section 393 of the Local Government Act 1993.
binding non-coverage application means an application referred to in section 32.
binding non-coverage declaration means a declaration under section 34.
council has the same meaning as it has in the Local Government Act 1993.
county council has the same meaning as it has in the Local Government Act 1993.
coverage application means a coverage application referred to in section 24.
coverage declaration means a declaration under section 26.
declaration criteria means the criteria set out in section 23.
Department means the Department of Energy, Utilities and Sustainability.
Director-General means the Director-General of the Department.
disqualified corporation means:
(a) a corporation that, pursuant to a declaration under section 16 (1) (e), has been
declared to be a disqualified corporation for the purposes of this Act, or
Page 64
Water Industry Competition Bill 2006
Dictionary
(b) a corporation that has, as one of its directors or as one of the persons concerned
in its management, an individual who is a disqualified individual,
and includes a corporation that is a related entity (within the meaning of the
Corporations Act 2001 of the Commonwealth) in relation to a corporation referred
to in paragraph (a) or (b).
disqualified individual means:
(a) an individual who, pursuant to the Corporations Act 2001 of the
Commonwealth, is prohibited from managing a corporation, or
(b) an individual who, pursuant to a declaration under section 16 (1) (f), is a
disqualified individual for the purposes of this Act, or
(c) an individual who is a director of a disqualified corporation or is concerned in
the management of a disqualified corporation.
exercise a function includes perform a duty.
function includes a power, authority or duty.
infrastructure service means the storage, conveyance or reticulation of water or
sewage by means of water industry infrastructure, and includes the provision of
connections between any such infrastructure and the infrastructure of the person for
whom water or sewage is stored, conveyed or reticulated, but:
(a) does not include the storage of water behind a dam wall, and
(b) does not include:
(i) the filtering, treating or processing of water or sewage, or
(ii) the use of a production process, or
(iii) the use of intellectual property, or
(iv) the supply of goods (including the supply of water or sewage),
except to the extent to which it is a subsidiary but inseparable aspect of the
storage, conveyance or reticulation of water or sewage.
inspector means an inspector appointed under section 74.
IPART means the Independent Pricing and Regulatory Tribunal.
licence means a network operator's licence or a retail supplier's licence.
licensed network operator means the licensee under a network operator's licence.
licensed retail supplier means the licensee under a retail supplier's licence.
monopoly supplier means a licensee that is a monopoly supplier pursuant to an order
in force under section 51.
network operator's licence means a licence referred to in section 6 (1) (a).
ombudsman means the ombudsman appointed under an approved ombudsman
scheme.
public reserve has the same meaning as it has in the Local Government Act 1993.
public road has the same meaning as it has in the Roads Act 1993.
Page 65
Water Industry Competition Bill 2006
Dictionary
public water utility means:
(a) the State Water Corporation, or
(b) the Sydney Catchment Authority, or
(c) the Sydney Water Corporation, or
(d) the Hunter Water Corporation, or
(e) a water supply authority within the meaning of the Water Management Act
2000, or
(f) a council or county council exercising water or sewerage functions.
recycled water means water obtained from the processing of sewage.
related person, in relation to an individual, means some other individual who is the
firstmentioned individual's:
(a) employer, employee or partner, or
(b) spouse, de facto partner, parent, step-parent, grandparent, child, step-child,
grandchild, sibling, step-sibling, nephew or niece.
retail supplier's licence means a licence referred to in section 6 (1) (b).
retailer of last resort means a person who is a retailer of last resort pursuant to an
order in force under section 54.
revocation application means a revocation application referred to in section 28.
revocation declaration means a declaration under section 30.
roads authority has the same meaning as it has in the Roads Act 1993.
scheduled area means an area specified in Schedule 1.
service provider, in relation to an infrastructure service, means the person who has,
or is to have, control of the water industry infrastructure by means of which the
service is, or is to be, provided, whether or not the person is a licensed network
operator.
sewer main means such part of a network operator's sewerage infrastructure as
comprises the main sewage pipe into which sewage is discharged from premises.
sewer miner means a person who draws from the contents of a service provider's
sewers or who wants to do so.
sewerage infrastructure means any infrastructure that is, or is to be, used for the
treatment, storage, conveyance or reticulation of sewage, including any outfall pipe
or other work that stores or conveys water leaving the infrastructure, but does not
include any pipe, fitting or apparatus that is situated upstream of a customer's
connection point to a sewer main.
small retail customer means a person who belongs to a class of persons who are
declared by the regulations to be small retail customers for the purposes of this Act.
stormwater drain means such part of a network operator's water infrastructure as
comprises the main drain into which stormwater is discharged from premises.
water includes stormwater and recycled water, but does not include sewage.
Page 66
Water Industry Competition Bill 2006
Dictionary
water industry infrastructure means water infrastructure or sewerage infrastructure.
water infrastructure means any infrastructure that is, or is to be, used for the
production, treatment, filtration, storage, conveyance or reticulation of water, but
does not include:
(a) any pipe, fitting or apparatus that is situated downstream of a customer's
connection point to a water main, or
(b) any pipe, fitting or apparatus that is situated upstream of a customer's
connection point to a stormwater drain.
water main means such part of a network operator's water infrastructure as
comprises the main water pipe from which water is distributed to premises.
water supply or sewerage service contract means a contract under which a licensed
retail supplier agrees to supply water, or provide sewerage services, to a customer.
Page 67
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