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TASMANIA
__________
WATER AND SEWERAGE INDUSTRY BILL 2008
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. Act binds Crown
PART 2 OBJECTIVE OF ACT
5. Objective of Act
PART 3 ADMINISTRATION
6. Functions of Minister
7. Powers of Minister
8. Minister may establish committees
9. Delegation of Minister's functions and powers
10. Exemption from Act
PART 4 REGULATION OF WATER AND SEWERAGE INDUSTRY
Division 1 Regulator
Subdivision 1 Functions and powers
11. The Regulator
12. Functions of Regulator
13. Powers of Regulator
[Bill 24]-I
14. Delegation of Regulator's functions and powers
15. Matters to which Regulator is to have regard
16. Independence of Regulator
17. Regulator's power to require information
18. Power to direct regulated entities to keep records
19. Special reports to Minister
Subdivision 2 Codes
20. General provisions relating to codes
21. Publication and availability of codes
22. Review, amendment and replacement of codes
Subdivision 3 Administration of office of Water and Sewerage Economic
Regulator
23. Guidelines for conduct of Regulator
24. Advisory committees
25. Staff of Regulator
26. Assistance and facilities
27. Funds
28. Annual report of Regulator
29. Tabling of annual report
Division 2 Licensing of regulated entities
Subdivision 1 Licensing
30. Requirement for licence
31. Declaration of regulated activities and non-regulated activities
32. Deemed licensee
33. Contravening person still subject to regulated entity obligations
34. Applications for licences
35. Determination of applications by Regulator
36. Duration of licences
37. Conditions of licences
38. Matters to be included in licence
39. Annual licence fees
2
40. Variation of licence conditions
41. Enforcement of licences
42. Regulator's power of direction
43. Suspension and cancellation of licences in public interest
44. Activities not authorised
45. Regulated entities to be notified of proposed action
46. Review of licences
47. Emergency directions
48. Register of licences
Subdivision 2 Reserve supplier
49. Declaration of reserve supplier
Subdivision 3 Changes to operations of licence
50. Licence cannot be transferred
51. Surrender of licence
52. Applying for cancellation of licence as regulated entity
53. No compensation is payable
54. Notice of proposed or anticipated stoppage of provision of
regulated service
Subdivision 4 Step-in-operator
55. Power to take over operations
56. Appointment of step-in-operator
Division 3 Customer service code
57. Customer service code
Division 4 Customer contract
58. Regulator may require customer contracts
59. Publication of customer contracts
60. Entering into customer contracts
61. Subdivision not to preclude certain contracts
62. Variation of customer contracts
Division 5 Price regulation
63. Application of this Division
3
64. Price regulation of regulated services
65. Price and service plan
66. Price determinations
67. General provisions relating to determinations
68. Pricing principles
Division 6 Performance monitoring, reporting and audits
69. Performance monitoring and reporting
70. State of the industry report
71. Auditing
72. Audits requested by Minister
73. Publication of audit results
74. Costs of audit
Division 7 Complaints and disputes
75. Customer complaints process
76. Complaints to Ombudsman
77. Compliance with Ombudsman's decision
PART 5 ADMINISTRATIVE REVIEW OF REGULATOR'S
DECISIONS
78. Definitions used in this Part
79. Applications for review
80. Grounds for review
81. Intervention by others in a review without leave
82. Leave for interveners
83. Parties to a review under this Part
84. Interveners and the Regulator may raise new grounds for review
85. Court may terminate review
86. Effect of application on operation of reviewable decision
87. Court's determination
PART 6 TRANSITION TO NEW REGULATORY ARRANGEMENTS
88. Interim price order
4
89. Interim licences
90. Interim exemption from requirement to be licensed
PART 7 MISCELLANEOUS
Division 1 Authorised officers
91. Appointment of authorised officers
92. Conditions of appointment
93. Authorised officer's identity card
94. Production of identity card
95. Power of entry
96. General investigative powers of authorised officers
97. Authorised officer's power to require information
98. Care to be taken
99. Compensation
Division 2 General
100. Service of infringement notices
101. Confidentiality
102. False or misleading information
103. Exclusion of personal liability
104. Liability of regulated entity
105. Offences by corporations
106. Liability of employers and principals
107. Liability of officers of body corporate
108. Regulator's costs
109. Recovery of monetary penalties
110. Recovery of unpaid fees, charges, &c.
111. Payments into Consolidated Fund
112. Evidentiary certificates
113. Evidentiary provision for documents
114. Notices not statutory rules
115. Regulations
5
116. Administration of Act
117. Consequential Amendments
SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
6
WATER AND SEWERAGE INDUSTRY BILL 2008
(Brought in by the Treasurer, the Honourable Michael
Anthony Aird)
A BILL FOR
An Act to provide for the establishment of an economic
regulatory framework for the water and sewerage
industry, including the establishment of a licensing regime
and providing for the regulation of prices, customer service
standards and performance monitoring of that industry
and for related matters
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Water and
Sewerage Industry Act 2008.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
[Bill 24] 7
Water and Sewerage Industry Act 2008
Act No. of
s. 3 Part 1 Preliminary
3. Interpretation
In this Act, unless the contrary intention
appears
"Agency" has the same meaning as in the
State Service Act 2000;
"annual performance reporting
requirements" means the annual
reporting requirements referred to in
section 69;
"area of operations", in relation to a
regulated entity, means the area within
which the regulated entity is authorised
to exercise the powers conferred by a
licence;
"authorised officer" means an authorised
officer appointed under section 91;
"business day" means a day that is not
(a) a Saturday or Sunday; or
(b) a statutory holiday within the
meaning of the Statutory
Holidays Act 2000;
"code" means a code issued by the Regulator
under section 20;
"Common Services Corporation" has the
same meaning as in the Water and
Sewerage Corporations Act 2008;
"customer" means a person who is
8
Water and Sewerage Industry Act 2008
Act No. of
Part 1 Preliminary s. 3
(a) an owner and occupier of a
property that is connected to a
regulated entity's water
infrastructure or sewerage
infrastructure; or
(b) an owner (but not an occupier) of
a property that is connected to a
regulated entity's water
infrastructure or sewerage
infrastructure; or
(c) an occupier of a property that is
connected to a regulated entity's
water infrastructure or sewerage
infrastructure and is liable for
service charges; or
(d) an owner or occupier of a
property that is not connected to a
regulated entity's water
infrastructure or sewerage
infrastructure but to which a
regulated service is available
from a regulated entity and the
regulated entity imposes a service
charge;
"customer complaints process" means a
process established pursuant to
section 75 to deal with complaints by
customers of a regulated entity relating to
regulated services provided by that
regulated entity;
9
Water and Sewerage Industry Act 2008
Act No. of
s. 3 Part 1 Preliminary
"customer contract" means a contract
between a regulated entity and a
customer for the provision of regulated
services to the customer, which includes
standard terms and conditions of service;
"customer service code" means a code issued
under section 57;
"deemed licensee" means a person deemed to
be licensed under section 32;
"disqualified corporation" means a
corporation that, pursuant to a declaration
under section 41, is a disqualified person
for the purposes of this Act and includes
a corporation that is a related entity
(within the meaning of the Corporations
Act 2001 of the Commonwealth) in
relation to the corporation;
"disqualified individual" means
(a) an individual who, pursuant to
the Corporations Act 2001 of the
Commonwealth, is disqualified
from managing a corporation; or
(b) an individual who, pursuant to a
declaration under section 41, is a
disqualified person for the
purposes of this Act;
"disqualified person" means a disqualified
corporation or a disqualified individual;
10
Water and Sewerage Industry Act 2008
Act No. of
Part 1 Preliminary s. 3
"environmental harm" has the same
meaning as in the Environmental
Management and Pollution Control Act
1994;
"first regulatory period" means the period
fixed under section 65(12)(a);
"infrastructure", in relation to a regulated
entity, means infrastructure owned by, or
under the management and control of, the
regulated entity;
"interim licence" means an interim licence
granted under section 89;
"licence" means a licence granted under
section 35(1) or a temporary licence
granted under section 43(5);
"occupier" of land means a person who has,
or is entitled to, possession or control of
the land and includes
(a) a person who occupies the land or
part of the land jointly or in
common with any other person;
and
(b) a person who occupies part of the
land;
"officer" has the same meaning as in the
Corporations Act 2001 of the
Commonwealth;
11
Water and Sewerage Industry Act 2008
Act No. of
s. 3 Part 1 Preliminary
"Ombudsman" means the Ombudsman
appointed under the Ombudsman Act
1978;
"person" includes an Agency, a statutory
authority and an emanation of the Crown;
"price" means the price or price range
however designated
(a) for the provision of a regulated
service; or
(b) for developer charges for water
infrastructure and sewerage
infrastructure
and includes a charge or tariff or
particular factor, policy or a formula used
in fixing the price;
"price and service plan" means a price and
service plan approved under section 65;
"price determination" means a price
determination by the Regulator under
section 66;
"record" includes
(a) a documentary record; and
(b) a record made by an electronic,
electromagnetic, photographic or
optical process;
12
Water and Sewerage Industry Act 2008
Act No. of
Part 1 Preliminary s. 3
"Regional Corporation" has the same
meaning as in the Water and Sewerage
Corporations Act 2008;
"regulated activity" means an activity for
which a person is required to hold a
licence or interim licence granted under
this Act and includes the provision of a
regulated service;
"regulated entity" means
(a) a person holding a licence or an
interim licence granted under this
Act; or
(b) a person deemed to hold a licence
under section 32; or
(c) a person who has surrendered his
or her licence under this Act; or
(d) a person whose licence has been
cancelled or suspended; or
(e) a person who has obligations
under section 33; or
(f) a person who, but for an
exemption under section 90,
would be required to hold a
licence under section 30;
"regulated service" means the provision of a
water service or a sewerage service by a
regulated entity;
13
Water and Sewerage Industry Act 2008
Act No. of
s. 3 Part 1 Preliminary
"regulations" means regulations made and in
force under this Act;
"Regulator" means the Water and Sewerage
Economic Regulator referred to in
section 11;
"regulatory period" means the regulatory
period fixed under section 65(12) or
declared under section 65(13);
"related person", in relation to
(a) an individual, means some other
individual who is the first-
mentioned individual's
(i) employer, employee or
partner; or
(ii) a partner, within the
meaning of the
Relationships Act 2003,
parent, step-parent,
grandparent, child, step-
child, grandchild, sibling,
step-sibling, nephew or
niece; or
(b) a body corporate, means a related
body corporate within the
meaning of the Corporations Act
2001 of the Commonwealth;
"reserve supplier" means a person who is
declared to be a reserve supplier under
section 49;
14
Water and Sewerage Industry Act 2008
Act No. of
Part 1 Preliminary s. 3
"sewage" includes trade waste;
"sewerage infrastructure" means any
infrastructure that is, or is to be, used
for
(a) the collection or storage of
sewage; or
(b) the conveyance or reticulation of
sewage; or
(c) the treatment of sewage,
including any outfall pipe or
other work that stores or conveys
water leaving the infrastructure
used for the treatment of sewage;
or
(d) any other infrastructure used in
connection with sewage and
declared to be sewerage
infrastructure by the Minister by
order
but does not include
(e) any pipe, fitting or apparatus that
is situated upstream of a
customer's connection point to a
sewer main; or
(f) infrastructure situated entirely
within the one land holding and
not connected to any other
infrastructure situated within
another land holding; or
15
Water and Sewerage Industry Act 2008
Act No. of
s. 3 Part 1 Preliminary
(g) any other infrastructure used in
connection with sewage and
declared not to be sewerage
infrastructure by the Minister by
order;
"sewerage service" means
(a) a service that is provided in
connection with the collection,
storage, treatment, conveyance or
reticulation of sewage and
includes a retail service for the
collection of sewage; or
(b) any other service declared to be a
sewerage service by the Minister
by order;
"statutory authority" means a body or
authority, whether incorporated or not,
that is established or constituted under a
written law or under the royal
prerogative, being a body or authority
which, or of which, the governing
authority wholly or partly comprises a
person or persons appointed by the
Governor, a Minister or another statutory
authority, but does not include an
Agency;
"step-in-operator" see section 56(2);
"step-in-order" see section 55(1);
16
Water and Sewerage Industry Act 2008
Act No. of
Part 1 Preliminary s. 3
"trade waste" means the liquid waste
generated by any industry, business,
trade or manufacturing process;
"water" includes recycled water and re-use
water, but does not include sewage;
"water infrastructure" means any
infrastructure that is, or is to be, used
for
(a) the collection or storage of water,
including from a dam or reservoir
or a water production plant; or
(b) the treatment of water; or
(c) the conveyance or reticulation of
water; or
(d) any other infrastructure used in
connection with water and
declared to be water
infrastructure by the Minister by
order
but does not include
(e) any pipe, fitting or apparatus that
is situated downstream of a
customer's connection point to a
water main; or
(f) any pipe, fitting or apparatus that
is situated upstream of a
customer's connection point to a
stormwater drain; or
17
Water and Sewerage Industry Act 2008
Act No. of
s. 4 Part 1 Preliminary
(g) infrastructure situated entirely
within the one landholding and
not connected to any other
infrastructure situated within
another landholding; or
(h) any other infrastructure used in
connection with water that is
declared not to be water
infrastructure by the Minister by
order;
"water service" means a service that is
provided in connection with the
collection, storage, treatment,
conveyance, reticulation or supply of
water and includes a retail service for the
supply of water, but does not include
(a) supply or use of water for
irrigation purposes; or
(b) supply or use of water in
connection with the generation of
electricity.
4. Act binds Crown
This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, in all its other capacities.
18
Water and Sewerage Industry Act 2008
Act No. of
Part 2 Objective of Act s. 5
PART 2 OBJECTIVE OF ACT
5. Objective of Act
The objective of this Act is to protect the long-
term interests of customers and to provide for the
safe, environmentally responsible, efficient and
sustainable provision of reliable and secure
water services and sewerage services to the
Tasmanian community.
19
Water and Sewerage Industry Act 2008
Act No. of
s. 6 Part 3 Administration
PART 3 ADMINISTRATION
6. Functions of Minister
The Minister has the following functions under
this Act:
(a) to develop and co-ordinate policies
relating to the regulation of the water and
sewerage industry;
(b) such other functions as are imposed on
the Minister under this Act.
7. Powers of Minister
(1) The Minister has power to do all things
necessary or convenient to be done in connection
with, incidental to or related to the performance
of the Minister's functions under this Act.
(2) Without limiting subsection (1), the Minister, by
notice in writing given to the Regulator, may
require the Regulator to conduct an inquiry into
any matter relating or incidental to the regulation
of the water and sewerage industry that the
Minister considers necessary or desirable.
8. Minister may establish committees
(1) The Minister may establish committees to
provide information and advice to the Minister
20
Water and Sewerage Industry Act 2008
Act No. of
Part 3 Administration s. 9
on matters related to the administration of this
Act.
(2) The Minister may appoint any person who has
expertise, knowledge or skills relevant to the
functions of a committee as a member of that
committee on such terms and conditions as the
Minister determines.
9. Delegation of Minister's functions and powers
The Minister may delegate any of his or her
functions or powers under this Act other than
this power of delegation.
10. Exemption from Act
(1) Subject to subsections (2) and (3), the Minister
may, by order, exempt a person, an activity or a
class of activities from any provision of this Act
subject to any conditions that the Minister
determines.
(2) The Minister may not make an order granting an
exemption if it would be inconsistent with the
objective of this Act to do so.
(3) The Minister must not make an order granting an
exemption unless the Minister has consulted
with
(a) the Minister administering the
Environmental Management and
Pollution Control Act 1994 and that
21
Water and Sewerage Industry Act 2008
Act No. of
s. 10 Part 3 Administration
Minister has advised that the exemption
would not be inconsistent with that Act;
and
(b) the Minister administering the Public
Health Act 1997 and that Minister has
advised that the exemption would not be
inconsistent with that Act or any
guidelines in force under that Act; and
(c) the Minister administering the Water
Management Act 1999 and that Minister
has advised that the exemption would not
be inconsistent with that Act.
(4) An order remains in force until
(a) it is revoked; or
(b) the date specified in the order as the date
on which the order ceases to be in force
whichever first occurs.
(5) The Minister may make an order renewing an
exemption granted under this section.
22
Water and Sewerage Industry Act 2008
Act No. of
Part 4 Regulation of Water and Sewerage Industry s. 11
PART 4 REGULATION OF WATER AND
SEWERAGE INDUSTRY
Division 1 Regulator
Subdivision 1 Functions and powers
11. The Regulator
(1) The office of the Water and Sewerage Economic
Regulator is established.
(2) The Commissioner, within the meaning of the
Government Prices Oversight Act 1995, is the
Regulator.
12. Functions of Regulator
The Regulator's functions are
(a) to administer the licensing system
established under Division 2; and
(b) to advise the Minister that a licence has
been granted under Division 2 and to
advise the Minister of any conditions that
apply to that licence; and
(c) to advise the Minister of any variation or
amendments to the conditions of a
licence; and
(d) to monitor and report to the Minister on
the compliance of a regulated entity with
its licence conditions and obligations,
23
Water and Sewerage Industry Act 2008
Act No. of
s. 12 Part 4 Regulation of Water and Sewerage Industry
including compliance with the customer
service code; and
(e) to establish and administer the customer
service code; and
(f) to regulate prices, terms and conditions
for regulated services; and
(g) to make price determinations and
determinations generally; and
(h) to monitor the performance of the water
and sewerage industry and report on the
performance of regulated entities; and
(i) to provide advice to the Minister on
matters on which the Minister requires
advice in connection with the regulation
of the water and sewerage industry; and
(j) to undertake inquiries, including such
inquiries as may be required by the
Minister, in relation to the regulation of
the water and sewerage industry; and
(k) to publish guidelines issued by the
Regulator under this Act on the
Regulator's internet website; and
(l) to perform such other functions as may
be imposed on the Regulator under this
Act.
24
Water and Sewerage Industry Act 2008
Act No. of
Part 4 Regulation of Water and Sewerage Industry s. 13
13. Powers of Regulator
(1) The Regulator has power to do all things
necessary or convenient to be done in connection
with, incidental to or related to the performance
of the Regulator's functions under this Act.
(2) Without limiting subsection (1), the Regulator
may
(a) develop and issue guidelines for the
regulation of the water and sewerage
industry
(i) for price regulation; and
(ii) for pricing principles; and
(iii) for price and service plans; and
(iv) for licence administration; and
(v) for annual performance reporting;
and
(vi) in relation to compliance by a
regulated entity with the
provisions of this Act and the
conditions of the licence granted
to the regulated entity; and
(b) enforce the compliance of regulated
entities with their licence conditions and
obligations, including the customer
service code; and
(c) develop and issue codes; and
25
Water and Sewerage Industry Act 2008
Act No. of
s. 14 Part 4 Regulation of Water and Sewerage Industry
(d) enter into contracts.
14. Delegation of Regulator's functions and powers
The Regulator may delegate any of his or her
functions or powers under this Act, other than
this power of delegation.
15. Matters to which Regulator is to have regard
In performing his or her functions and exercising
his or her powers under this Act, the Regulator
must seek to achieve the objective of this Act
and must have regard to the following matters:
(a) relevant health, public safety and
environmental obligations;
(b) the promotion of efficient long-term
investment in water infrastructure and
sewerage infrastructure, so as to achieve
the lowest sustainable costs of the
provision of water services and sewerage
services;
(c) the promotion of efficient pricing for
regulated services;
(d) the impact of the rate of change of prices
for customers;
(e) the maintenance of appropriate service
standards for the provision of water
services and sewerage services;
26
Water and Sewerage Industry Act 2008
Act No. of
Part 4 Regulation of Water and Sewerage Industry s. 16
(f) the avoidance of regulatory duplication,
so far as is practicable, through
appropriate consultation with, and data
collection from, other relevant persons;
(g) any matters relating to the water and
sewerage industry prescribed in the
regulations;
(h) any other matters that the Regulator
considers relevant.
16. Independence of Regulator
In performing his or her functions and exercising
his or her powers under this Act, the Regulator is
not subject to the direction of the Minister or any
other person unless expressly provided for under
this Act.
17. Regulator's power to require information
(1) The Regulator may, by written notice given to a
person, require that person to give the Regulator,
within a time stated in the notice, information or
documents in the person's possession that the
Regulator reasonably requires for the
administration of this Act.
(2) A person required to give information or
documents under this section must provide the
information or documents within the time stated
in the notice given under subsection (1).
27
Water and Sewerage Industry Act 2008
Act No. of
s. 18 Part 4 Regulation of Water and Sewerage Industry
Penalty: Fine not exceeding 100 penalty units.
(3) A person may not be compelled to give
information under this section if the information
might tend to incriminate the person of an
offence.
18. Power to direct regulated entities to keep records
(1) The Regulator may, by notice in writing given to
a regulated entity, require the regulated entity to
maintain and keep specified records, including
any documents specified in the notice.
(2) A person must not, without reasonable excuse,
refuse or fail to comply with a notice given
under subsection (1).
Penalty: Fine not exceeding 100 penalty units.
19. Special reports to Minister
The Regulator must report to the Minister on
matters on which the Minister requires a report
as and when required by the Minister.
Subdivision 2 Codes
20. General provisions relating to codes
(1) The Regulator may issue codes for any matter
relating or incidental to any regulated activity.
28
Water and Sewerage Industry Act 2008
Act No. of
Part 4 Regulation of Water and Sewerage Industry s. 20
(2) A person subject to a code must comply with
that code.
Penalty: Fine not exceeding 100 penalty units.
(3) The Regulator may not issue a code unless the
Regulator has consulted with
(a) the Minister administering the
Environmental Management and
Pollution Control Act 1994 and that
Minister has advised that the code would
not be inconsistent with that Act; and
(b) the Minister administering the Public
Health Act 1997 and that Minister has
advised that the code would not be
inconsistent with that Act or any
guidelines in force under that Act; and
(c) the Minister administering the Water
Management Act 1999 and that Minister
has advised that the code would not be
inconsistent with that Act.
(4) If there is an inconsistency between a code
issued under subsection (1) and this Act or
regulations made under this Act, this Act or the
regulations prevail to the extent of the
inconsistency.
(5) A code may be made so as to apply differently
according to matters, limitations or restrictions,
whether as to time, circumstance or otherwise,
specified in the code.
29
Water and Sewerage Industry Act 2008
Act No. of
s. 21 Part 4 Regulation of Water and Sewerage Industry
(6) A code may authorise any matter to be from time
to time determined, approved or applied by the
Regulator.
(7) The Regulator is to notify the Minister whenever
the Regulator issues a code and provide the
Minister with a copy of the code.
21. Publication and availability of codes
(1) As soon as practicable after the Regulator issues
a code, the Regulator is to
(a) cause notice of the issuing of the code to
be published in the Gazette; and
(b) cause the code to be published on the
Regulator's internet website.
(2) The Regulator must keep a code available for
inspection by any person, free of charge, at the
office of the Regulator during normal office
hours.
(3) The Regulator is to ensure that copies of a code
are available to any person for purchase, at cost,
during normal office hours.
22. Review, amendment and replacement of codes
(1) The Regulator may, on his or her own initiative
or at the request of any person or the Minister,
review a code.
30
Water and Sewerage Industry Act 2008
Act No. of
Part 4 Regulation of Water and Sewerage Industry s. 22
(2) The Regulator must review a code when
required to do so by the Minister.
(3) The Regulator may amend, rescind or substitute
a code.
(4) As soon as practicable after the Regulator
(a) amends or substitutes a code under
subsection (3), the Regulator is to
cause
(i) notice of the making of the
amendment or substitution to be
published in the Gazette; and
(ii) the code, as amended or
substituted, to be published on
the Regulator's internet website;
or
(b) rescinds a code, the Regulator is to cause
notice of the rescission to be published in
the Gazette and on the Regulator's
internet website.
(5) The Regulator is to notify the Minister whenever
the Regulator amends, rescinds or substitutes a
code and provide the Minister with a copy of the
amended or substituted code, as the case may be.
31
Water and Sewerage Industry Act 2008
Act No. of
s. 23 Part 4 Regulation of Water and Sewerage Industry
Subdivision 3 Administration of office of Water and
Sewerage Economic Regulator
23. Guidelines for conduct of Regulator
(1) The Regulator may issue guidelines concerning
the manner in which the Regulator performs his
or her functions or exercises his or her powers
under this Act.
(2) Before the Regulator issues any guidelines under
this section, the Regulator must submit the
guidelines to the Treasurer for approval.
(3) The Regulator must keep the guidelines
available for inspection by any person, free of
charge, during normal office hours.
(4) The Regulator is to ensure that copies of the
guidelines are available to any person to
purchase, at cost, during normal office hours.
24. Advisory committees
(1) The Regulator may establish advisory
committees to advise the Regulator on specified
aspects of the administration of this Act.
(2) The members of advisory committees are
appointed and hold office on terms and
conditions approved by the Treasurer.
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25. Staff of Regulator
The Regulator may arrange with the Secretary of
the responsible Department in relation to the
Public Account Act 1986 for such State Service
officers and State Service employees as the
Regulator considers necessary employed in that
Department to be made available to enable the
Regulator to perform his or her functions and
exercise his or her powers under this Act and
those officers and employees may, in
conjunction with State Service employment,
serve the Regulator in any capacity.
26. Assistance and facilities
The Regulator may arrange with any person to
provide assistance or facilities to enable the
Regulator to perform his or her functions and
exercise his or her powers under this Act.
27. Funds
(1) The funds of the Regulator consist of
(a) all money received by the Regulator in
the course of performing his or her
functions and exercising his or her
powers under this Act; and
(b) money appropriated by Parliament for
the purpose of the Regulator; and
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(c) all other money received by the
Regulator from any other source.
(2) The funds of the Regulator are to be applied
(a) in the payment or discharge of the
expenses, charges and obligations
incurred or undertaken by the Regulator
in the performance of his or her functions
and the exercise of his or her powers; and
(b) in the payment of the remuneration and
allowances of the Regulator; and
(c) in meeting the expenses incurred by the
Regulator in respect of
(i) the use of the services of persons
referred to in section 25; and
(ii) the assistance or facilities
provided under section 26; and
(d) in any other manner authorised or
required under this or any other Act.
28. Annual report of Regulator
(1) In respect of each financial year, the Regulator
must prepare a report which includes
(a) a report on the performance of the
Regulator's functions and the exercise of
the Regulator's powers; and
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(b) the financial statements of the Regulator;
and
(c) the Auditor-General's report on those
financial statements; and
(d) any information required by the
Treasurer by written notice given to the
Regulator; and
(e) any other information the Regulator
considers appropriate.
(2) The financial statements referred to in
subsection (1)(b) must
(a) be prepared and certified as specified in a
direction given under subsection (3); and
(b) present fairly
(i) the financial transactions of the
Regulator during the financial
year to which the report relates;
and
(ii) the state of affairs of the
Regulator at the end of that
financial year; and
(c) comply with any other written direction
given under subsection (3).
(3) The Treasurer may give written directions to the
Regulator in respect of the form, content,
preparation, certification and provision of the
financial statements referred to in
subsection (1)(b).
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(4) Directions under subsection (3) may adopt,
wholly or partly, with or without modification
and either specifically or by reference, any of the
Treasurer's Instructions made under the
Financial Management and Audit Act 1990.
(5) The Regulator must provide a copy of the annual
report to the Treasurer so as to enable it to be
tabled in accordance with section 29.
29. Tabling of annual report
(1) By 31 October in each year, the Treasurer must
cause a copy of the annual report referred to in
section 28 for the previous financial year to be
laid before each House of Parliament.
(2) If the Treasurer is unable to comply with
subsection (1) because a House of Parliament is
not sitting on 31 October in any year, the
Treasurer must
(a) on or before that day, provide copies of
the annual report to the clerk of that
House; and
(b) within the first 7 sitting-days after that
day, cause copies of the annual report to
be laid before that House.
36
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Part 4 Regulation of Water and Sewerage Industry s. 30
Division 2 Licensing of regulated entities
Subdivision 1 Licensing
30. Requirement for licence
A person must not
(a) own or operate water infrastructure or
sewerage infrastructure used for the
provision of water services or sewerage
services to another person; or
(b) provide water services or sewerage
services to another person, by means of,
or in connection with the use of, water
infrastructure or sewerage infrastructure;
or
(c) undertake any other activity that is
declared by the Minister under section 31
to be a regulated activity
unless the person holds a licence under this Act
authorising the relevant activity or is otherwise
permitted under this Act to not hold a licence.
Penalty: Fine not exceeding 10 000 penalty
units and, in the case of a continuing
offence, a further fine not exceeding
100 penalty units for each day during
which the offence continues.
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31. Declaration of regulated activities and non-
regulated activities
(1) The Minister may, by order, declare
(a) an activity to be a regulated activity; or
(b) an activity to not be a regulated activity
if the Minister is satisfied that it is in the public
interest to do so.
(2) Before making an order under subsection (1), the
Minister must obtain the advice of the Regulator
as to whether an activity should be declared to
be a regulated activity or to not be a regulated
activity.
(3) The Regulator may at any time recommend to
the Minister that an activity be declared to be a
regulated activity or to not be a regulated
activity.
32. Deemed licensee
(1) Where more than one person is required to be
licensed under section 30(a) in connection with a
particular piece of water infrastructure or
sewerage infrastructure, only one of those
persons is required to be granted a licence under
section 35(1).
(2) Where subsection (1) applies and a person is
granted a licence under section 35(1) in respect
of a piece of water infrastructure or sewerage
infrastructure
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(a) the unlicensed person is deemed to be
licensed in relation to that infrastructure
on the same terms and conditions as the
person granted a licence under
section 35(1); and
(b) compliance by the person granted a
licence under section 35(1) or the
deemed licensee with this Act and any
relevant licence conditions in relation to
the infrastructure constitutes compliance
by the deemed licensee or the person
granted a licence under section 35(1), as
the case may be.
33. Contravening person still subject to regulated entity
obligations
(1) Where a person is undertaking an activity for
which that person is required to be licensed
pursuant to section 30 and that person does not
hold a licence to undertake that activity, this Act
and any standard licence obligations declared by
the Regulator under subsection (2), including
any penalties for non-compliance, apply as if
that person held a licence in relation to that
activity.
(2) The Regulator, by notice published in the
Gazette, may declare standard licence
obligations for the purposes of this section.
(3) Subsection (1) does not apply to a person who is
deemed to be licensed under section 32.
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34. Applications for licences
(1) An application for a licence must
(a) be in such form as the Regulator may
approve; and
(b) contain such information as the
Regulator may require; and
(c) be accompanied by such fee as may be
prescribed in the regulations; and
(d) be lodged at the office of the Regulator.
(2) The Regulator may issue guidelines relating to
licence application forms, application fees and
the application process.
(3) An applicant is to comply with any guidelines
issued under subsection (2).
35. Determination of applications by Regulator
(1) The Regulator may determine an application for
a licence by granting a licence or by refusing the
application.
(2) Before making a determination on an application
under subsection (1), the Regulator must, within
10 business days after the receipt of the
application, invite submissions on the
application from
(a) the Minister; and
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(b) the Minister administering the Public
Health Act 1997; and
(c) the Minister administering the Water
Management Act 1999; and
(d) the Minister administering the
Environmental Management and
Pollution Control Act 1994; and
(e) such other persons as are prescribed by
the regulations.
(3) On receipt of an application for a licence, the
Regulator is to publish, in daily newspapers
published and circulating in Tasmania, a notice
of the application that invites submissions on the
application from the public.
(4) A notice published under subsection (3) is to
include information on how a submission can be
made and the timeframes for providing a
submission.
(5) The Regulator must determine the application
within 60 business days after receiving the
application.
(6) A licence may not be granted to a disqualified
person.
(7) A licence must not be granted unless the
Regulator is satisfied as to each of the following:
(a) that the applicant has shown honesty and
integrity in previous commercial and
other dealings;
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(b) 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;
(c) that the applicant has the capacity to
carry out those activities in a manner that
appropriately manages the risk to public
and environmental health;
(d) that the applicant has made, and will
maintain, appropriate arrangements in
respect of insurance;
(e) such matters as the Regulator considers
relevant, having regard to the public
interest;
(f) such other matters as are prescribed by
the regulations.
(8) On making a determination under this section,
the Regulator must cause notice of the
determination, and of the reasons for the
determination, to be given to the applicant and
the Minister.
(9) The Regulator must cause the information
contained in the notice under subsection (8) to be
made available to the public on the Regulator's
internet website.
36. Duration of licences
A licence remains in force until it is cancelled.
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37. Conditions of licences
(1) A licence is subject to such conditions as are
imposed on it by this Act or by the Regulator or
by both this Act and the Regulator.
(2) Without limiting subsection (1), the Regulator
may impose conditions requiring the regulated
entity to
(a) have and maintain, the capacity
(including technical, financial and
organisational capacity) to carry out the
activities authorised by the licence; and
(b) give and maintain appropriate security
(in such amount and form as the
Regulator may determine) for the
fulfilment of its obligations under the
licence; and
(c) maintain appropriate arrangements in
respect of insurance; and
(d) comply with a price determination made
under section 66; and
(e) submit to the Regulator a proposed price
and service plan; and
(f) develop an asset management plan; and
(g) comply with guidelines and codes,
including the customer service code; and
(h) prepare and publish a customer contract;
and
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(i) develop a plan for the provision of
regulated services as a reserve supplier;
and
(j) prepare a contingency plan to facilitate
the transition of the operation of water
infrastructure or sewerage infrastructure
to a step-in-operator in the event of a
step-in-order; and
(k) meet all relevant legislative obligations,
in particular the Public Health Act 1997,
the Fluoridation Act 1968, the
Environmental Management and
Pollution Control Act 1994 and the
Water Management Act 1999 in so far as
those Acts relate to the provision of
regulated activities; and
(l) comply with reporting obligations under
this Act; and
(m) undertake any other obligations
determined by the Regulator that are
consistent with the objective of this Act.
38. Matters to be included in licence
(1) A licence must
(a) state the name of the regulated entity that
holds the licence; and
(b) state the regulated activities that are
authorised by the licence (including,
where relevant, the geographic location
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in which those activities may be
conducted); and
(c) contain the licence conditions and such
other conditions as may be prescribed by
the regulations.
(2) A licence may specify an area in which the
regulated entity is to be the reserve supplier if
the regulated entity is declared to be a reserve
supplier under section 49.
(3) The area specified in subsection (2) may be
within the area of operations of more than one
regulated entity, whether the respective licences
relate to the same or different regulated
activities.
39. Annual licence fees
(1) The Regulator must require a regulated entity to
pay to the Minister such amount, by way of an
annual licence fee, as the Minister may from
time to time determine in respect of the
following:
(a) a licence;
(b) an interim licence granted under
section 89.
(2) The Minister is to notify the Regulator of the
amount of the annual licence fee determined
under subsection (1).
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(3) The Regulator is to notify the regulated entity in
writing of the amount of the annual licence fee
as soon as practicable after the receipt of
notification under subsection (2) from the
Minister.
(4) The amount so determined by the Minister is to
be an amount that the Minister considers to be a
reasonable contribution towards the cost of
administering this Act, including any of the
following:
(a) the costs to be incurred by the Regulator
in performing his or her functions and
exercising his or her powers, under this
Act;
(b) the costs to be incurred by the
Ombudsman in investigating complaints
under section 76;
(c) the costs which will arise from the
regulation, by prescribed persons, of
activities specified in the licence
during the year to which the fee relates, in
relation to a regulated entity.
(5) It is a condition of a regulated entity's licence or
interim licence, under which the regulated entity
provides regulated services to customers, that the
regulated entity must comply with any
requirement under this section.
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40. Variation of licence conditions
(1) The Regulator may vary the conditions of a
regulated entity's licence by written notice given
to the entity.
(2) A variation may only be made
(a) on application by the regulated entity; or
(b) on recommendation by the Minister; or
(c) on the Regulator's own motion.
(3) Before varying the conditions of a licence the
Regulator must invite submissions on the
proposed changes from
(a) the Minister, unless the variation is made
under subsection (2)(b); and
(b) the Minister administering the Public
Health Act 1997; and
(c) the Minister administering the Water
Management Act 1999; and
(d) the Minister administering the
Environmental Management and
Pollution Control Act 1994; and
(e) such other persons as are prescribed by
the regulations.
(4) Before varying the conditions of a licence under
subsection (1) in a material way, the Regulator
must publish a notice of the variation in daily
newspapers published and circulating in
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Tasmania that invites submissions on the
proposed variation from the public.
(5) A notice published under subsection (4) is to
include information on how a submission can be
made and the timeframes for inviting
submissions.
(6) The Regulator must publish any variation made
to the conditions of a licence under
subsection (1) on the Regulator's internet
website.
41. Enforcement of licences
(1) If the Regulator is satisfied that a regulated
entity has contravened this Act or the conditions
of the licence held by the regulated entity, the
Regulator may impose on the regulated entity a
monetary penalty not exceeding
(a) 5 000 penalty units for the first day on
which the contravention occurs; and
(b) a further fine not exceeding 200 penalty
units for each subsequent day on which
the contravention continues.
(2) If more than one person is required to be
licensed under section 30(a) in connection with a
piece of water infrastructure or sewerage
infrastructure, the Regulator may take any action
under this section against either a person who
has been granted a licence under section 35(1) or
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a deemed licensee in relation to that water
infrastructure or sewerage infrastructure.
(3) In addition to subsection (1), if the Regulator is
satisfied that a regulated entity has contravened
this Act or the conditions of the licence held by
the regulated entity, the Regulator may, by
written notice given to the regulated entity do
one or more of the following:
(a) require the regulated entity to send
specified information to customers;
(b) require the regulated entity to pay
compensation to customers in such
circumstances as the Regulator considers
appropriate;
(c) require the regulated entity to publish
notices containing specified information;
(d) require the regulated entity to take
specified action, or to cease taking
specified action, to rectify the
contravention;
(e) require the regulated entity to take
specified action, or to cease taking
specified action, to prevent any future
contravention;
(f) suspend the licence;
(g) cancel the licence;
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(h) declare that the regulated entity is a
disqualified person for the purposes of
this Act;
(i) declare that specified persons, being
(i) persons who are directors of the
regulated entity or are concerned
in the management of the
regulated entity; or
(ii) persons or classes of persons who
are related persons in relation to a
person referred to in
subparagraph (i)
are disqualified persons for the purposes
of this Act.
(4) The Regulator may cancel or suspend a licence
held by a regulated entity if the regulated entity
becomes a disqualified person.
(5) A notice under subsection (3) 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.
(6) Nothing in this section prevents a licence from
being cancelled or suspended at the request of
the regulated entity.
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42. Regulator's power of direction
(1) The Regulator may, for the purposes of this Act,
give a direction to a regulated entity.
(2) A direction under this section must be given in
writing.
(3) A regulated entity must comply with any
direction given under subsection (1).
Penalty: Fine not exceeding 100 penalty units.
43. Suspension and cancellation of licences in public
interest
(1) The Regulator may, by written notice served on
a regulated entity, suspend or cancel a licence
held by the regulated entity if the Regulator is
satisfied that the suspension or cancellation is in
the public interest.
(2) Suspension or cancellation of a licence may be
(a) of the Regulator's own motion; or
(b) on the written recommendation of the
Minister.
(3) Suspension or cancellation under this section
may be in respect of the whole or any part of the
provision of the regulated activities to which the
licence relates.
(4) Suspension or cancellation under this section
takes effect on and from the day specified in the
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notice of suspension or cancellation served under
subsection (1) and, in the case of suspension, the
suspension remains in force until the date
specified in the notice.
(5) Where a person is a deemed licensee in respect
of a piece of water infrastructure or sewerage
infrastructure, in respect of which another person
has been granted a licence under section 35(1)
and that other person has had its licence
cancelled or suspended under this section, the
Regulator may grant a temporary licence to the
deemed licensee for a specified period and on
specified conditions.
44. Activities not authorised
A regulated entity must not engage in regulated
activities to which the licence relates which have
been suspended in whole or in part.
Penalty: Fine not exceeding 5 000 penalty
units.
45. Regulated entities to be notified of proposed action
(1) The Regulator must not take action under
section 40, 41 or 43 unless
(a) the Regulator has given notice of the
proposed action to
(i) the regulated entity; and
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(ii) such other persons as may be
prescribed by the regulations; and
(b) the regulated entity and each such person
has been given a reasonable opportunity
to make submissions to the Regulator in
respect of the proposed action; and
(c) the Regulator has given consideration to
any such submissions.
(2) In a notice given under subsection (1)(a), the
Regulator is to state the grounds on which the
notice is given.
(3) Subsection (1)(a)(i) does not apply to action
taken at the request of the regulated entity.
46. Review of licences
(1) The Regulator is to review each licence at
intervals of not more than 5 years, with the first
review commencing not later than the fourth
anniversary of the granting of the licence.
(2) A report in respect of a review is to be given to
the Minister and published on the Regulator's
internet website.
47. Emergency directions
(1) Subject to subsection (7), if the Minister is of the
opinion that it is necessary to do so in order to
deal with a serious risk to public health or public
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safety or to deal with the likelihood of material
or serious environmental harm arising from the
provision of a regulated activity, the Minister
may give a direction, in writing, to a regulated
entity to take specified action to reduce or
eliminate that risk.
(2) Before the Minister gives a direction to a
regulated entity under subsection (1), the
Minister must consult with the Director of
Environmental Management and the Director of
Public Health.
(3) The Minister is to advise the Regulator, the
Director of Environmental Management and the
Director of Public Health of any direction given
to a regulated entity under subsection (1).
(4) It is a condition of a regulated entity's licence
under which a regulated entity provides
regulated services to customers that the regulated
entity must comply with any direction under this
section.
(5) If the regulated entity fails to take action
specified in a direction given to it under
subsection (1) or to undertake appropriate work
in accordance with any such direction, the
Minister may arrange for the action specified in
the direction to be carried out by another person.
(6) The cost incurred by the Minister of carrying
out the action specified in the direction given
under subsection (1) may be recovered by the
Minister in a court of competent jurisdiction as a
debt owed to the Crown by the regulated entity.
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(7) Nothing in this Act affects the exercise of any
power, or the obligation of a regulated entity to
comply with any direction, order or requirement,
under the Emergency Management Act 2006 or
any other law relating to emergencies.
48. Register of licences
(1) The Regulator is to establish and maintain a
register of licences.
(2) The regulations may make provision with regard
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) The Regulator must keep the register available
for inspection by any persons, free of charge,
during normal office hours.
(4) It is sufficient compliance with subsection (3) if
a copy of the register is made available on the
Regulator's internet website.
(5) Copies of entries in the register are to be made
available to any persons, at cost, during normal
office hours.
Subdivision 2 Reserve supplier
49. Declaration of reserve supplier
(1) For the purposes of this section, the water
services or sewerage services specified in an
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order made under subsection (2) are "reserved
services".
(2) The Minister may, by order, declare that a
regulated entity is the reserve supplier in relation
to the provision of one or more water services or
sewerage services within the whole or any
specified part of its area of operations.
(3) Before making an order under subsection (2), the
Minister is to provide a copy of the proposed
order to the Regulator.
(4) A reserve supplier is required to offer to provide
the reserved services to all customers within the
area specified in an order made under
subsection (2) and to provide those services
where the offer is accepted by customers in
accordance with the prices, terms and conditions
determined by the Regulator in accordance with
Divisions 4 and 5 of this Part.
Subdivision 3 Changes to operations of licence
50. Licence cannot be transferred
A licence cannot be transferred.
51. Surrender of licence
(1) A regulated entity may, by written notice given
to the Regulator, surrender its licence.
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(2) The notice given under subsection (1) must be
given to the Regulator at least 6 months before
the surrender is to take effect or, if the licence
requires a longer period of notice, as required by
the licence.
(3) The Regulator may, by agreement in writing
with the regulated entity, shorten the required
period of notice.
52. Applying for cancellation of licence as regulated
entity
A regulated entity may apply to the Regulator to
have the regulated entity's licence cancelled if
the regulated entity has not provided, and does
not intend to start providing, the regulated
activity for which the regulated entity is
licensed.
53. No compensation is payable
No compensation is payable to a regulated entity
if the Regulator cancels, suspends or varies a
licence held by the regulated entity under this
Act.
54. Notice of proposed or anticipated stoppage of
provision of regulated service
(1) If a regulated entity proposes to stop, or
anticipates stopping, all or part of the provision
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of a regulated service, the regulated entity must
not stop providing the regulated service unless
the regulated entity has given at least 60 business
days' notice in writing to the Regulator of the
proposed or anticipated stoppage.
Penalty: Fine not exceeding 100 penalty units.
(2) The notice given under subsection (1) must
specify the day on which the regulated entity
proposes to stop or anticipates stopping the
provision of all or part of a regulated service.
(3) If the regulated entity continues providing all or
part of a regulated service after the day specified
in the notice, the notice ceases to have effect as a
notice under subsection (1).
(4) If the regulated entity again proposes to stop, or
anticipates stopping, the provision of all or part
of a regulated service, the regulated entity must
give a further notice under subsection (1).
Penalty: Fine not exceeding 100 penalty units.
(5) If the regulated entity stops providing all or part
of a regulated service, whether or not a notice
has been provided under subsection (1), the
regulated entity must give the Regulator notice
immediately or as soon as practicable after
stopping the provision of all or part of that
regulated service.
Penalty: Fine not exceeding 100 penalty units.
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Subdivision 4 Step-in-operator
55. Power to take over operations
(1) If
(a) a regulated entity contravenes this Act or
a code, or a regulated entity's licence is
suspended, cancelled or surrendered; and
(b) it is necessary, in the Regulator's
opinion, to take over some or all of the
regulated entity's operations to ensure
that the regulated entity's customers
receive an adequate provision of
regulated services
the Minister, on receipt of the written advice of
the Regulator, may make an order under this
section (referred to as a "step-in-order").
(2) Before a step-in-order is made under this section,
the Minister must give the regulated entity a
reasonable opportunity to make submissions in
respect of the proposed order.
(3) A step-in-order
(a) authorises the Regulator to appoint a
step-in-operator to take over the
regulated entity's operations or a
specified part of the regulated entity's
operations; and
(b) may specify that
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(i) the step-in-operator has such
functions and powers in relation
to the regulated entity's
operations as are specified in the
order; and
(ii) the regulated entity is to stop
providing regulated services to
specified customers on and from
a specified date; and
(iii) upon commencement of
provision of water services and
sewerage services by the step-in-
operator, the specified customers
become, in relation to the
provision of any regulated
services that are the subject of the
step-in-order, the customers of
the step-in-operator; and
(iv) each customer referred to in
subparagraph (iii) and the step-in-
operator are taken to have entered
into a special circumstances
contract under such terms as are
determined under subsection (4)
for the purposes of this section or
as otherwise specified in the
order; and
(v) the step-in-operator must have
access to, and take control of, the
water infrastructure and sewerage
infrastructure and other property,
including intellectual property,
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licences and employees, of the
regulated entity as is necessary
for the purposes of carrying on
the operations specified in the
order; and
(c) may contain ancillary directions which
may
(i) contain directions about how the
costs of carrying on the
operations, and revenue
generated from the operations,
are to be dealt with; and
(ii) specify the period for which the
order under subsection (1)
applies; and
(iii) specify any conditions that may
apply.
(4) The Regulator may, by notice in writing given to
a step-in-operator, determine the terms of a
special circumstances contract between the step-
in-operator and the customer.
(5) A step-in-order operates to the exclusion of
rights that are inconsistent with the step-in-order.
56. Appointment of step-in-operator
(1) When a step-in-order is made, the Regulator
must appoint a suitable person (who may, but
need not, be a regulated entity) to take over the
operations specified in that order.
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(2) A person appointed to take over a regulated
entity's operations specified in the step-in-order
is referred to as the "step-in-operator".
(3) The regulated entity must facilitate the handover
of the operations to the step-in-operator as
specified in the order.
Penalty: Fine not exceeding 1 000 penalty
units.
(4) A person must not obstruct the step-in-operator's
access to property or the exercise by the step-in-
operator of the step-in-operator's responsibilities
under this section.
Penalty: Fine not exceeding 1 000 penalty
units.
(5) A person must comply with reasonable
directions given by the step-in-operator in the
exercise of the step-in-operator's responsibilities
under this section.
Penalty: Fine not exceeding 1 000 penalty
units.
Division 3 Customer service code
57. Customer service code
(1) Subject to this Division, the Regulator must
issue a customer service code for regulated
services.
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(2) The customer service code may specify
minimum service standards and conditions for
regulated services with which a regulated entity
is to comply.
(3) In developing a customer service code, the
Regulator
(a) must consult with regulated entities; and
(b) may consult with any person or group of
persons the Regulator considers relevant;
and
(c) must ensure that the customer service
code
(i) is not inconsistent with a
regulated entity's obligations
relating to water quantity and
quality and the provision of
sewerage services as referred to
in the Public Health Act 1997, the
Environmental Management and
Pollution Control Act 1994 and
the Water Management Act 1999;
and
(ii) includes any other matters
prescribed in the regulations; and
(d) may provide for different service
standards to be applied to different
classes of customers or that may apply to
different locations in Tasmania.
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(4) The regulations may specify minimum standards
and conditions of service and supply that are to
be included in the customer service code.
Division 4 Customer contract
58. Regulator may require customer contracts
(1) A regulated entity must develop a customer
contract for regulated services that it provides to
the regulated entity's customers by a date
determined by the Regulator by notice in writing
given to the regulated entity.
Penalty: Fine not exceeding 500 penalty units.
(2) A regulated entity must submit a proposed
customer contract that is in accordance with the
customer service code to the Regulator for
approval by a date determined by the Regulator
by notice in writing given to the regulated entity.
Penalty: Fine not exceeding 100 penalty units.
(3) The Regulator may
(a) require amendments to be made to a
proposed customer contract before
approving the proposed customer
contract; and
(b) draft and approve a customer contract to
apply in relation to a regulated entity if a
regulated entity fails to submit a
proposed customer contract as required
by this section or fails to amend a
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proposed customer contract as required
by the Regulator.
(4) This section does not apply in relation to
proposed customer contracts which are
submitted to the Regulator and approved as part
of a price and service plan approved under
section 65.
59. Publication of customer contracts
(1) A regulated entity that provides regulated
services must
(a) publish all customer contracts on the
regulated entity's internet website and
notify all customers of the website
address and that the customer contract is
located on that website; or
(b) in the event that the regulated entity does
not maintain an internet website, provide
a copy of the customer contract to all
customers free of charge.
Penalty: Fine not exceeding 50 penalty units.
(2) The regulated entity must provide a copy of the
customer contract to a customer, at cost, on
request.
Penalty: Fine not exceeding 50 penalty units.
(3) The regulated entity must ensure that the
customer contract includes particulars of the
contract prices, or of the manner in which the
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contract prices are to be calculated or
determined, in relation to the provision of water
services or sewerage services to customers by
the regulated entity.
Penalty: Fine not exceeding 50 penalty units.
60. Entering into customer contracts
(1) Subject to section 61, a regulated entity must
enter into a customer contract.
Penalty: Fine not exceeding 500 penalty units.
(2) A customer of a regulated entity is taken to have
entered into a customer contract with the
regulated entity, for the provision of water
services and sewerage services, or either of those
services as provided for under the customer
contract.
61. Subdivision not to preclude certain contracts
(1) This Subdivision does not preclude a regulated
entity from entering into a contract, that is not a
customer contract, with a customer for the
provision of water services or sewerage services.
(2) If a regulated entity enters into a contract with a
customer under subsection (1), the regulated
entity must provide a copy of that contract to the
Regulator.
Penalty: Fine not exceeding 50 penalty units.
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62. Variation of customer contracts
(1) A regulated entity may vary a customer contract.
(2) Where a regulated entity proposes to vary a
customer contract that has been approved by the
Regulator under section 58, the regulated entity
is to submit the proposed variation to the
Regulator for approval.
(3) If a customer contract is varied under
subsection (1), the regulated entity must, at least
6 months before the variation becomes effective
or within a shorter period approved by the
Regulator
(a) publish the variation to the customer
contract on the regulated entity's internet
website and notify all customers of the
website address and that the customer
contract is located on that website; or
(b) if the regulated entity does not maintain
an internet website, provide a copy of the
variation to the customer contract to all
customers free of charge.
Penalty: Fine not exceeding 50 penalty units.
(4) If a customer contract is varied under
subsection (1), the regulated entity must provide
a copy of the customer contract to a customer on
request free of charge.
Penalty: Fine not exceeding 50 penalty units.
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(5) The regulated entity must give a copy of the
variation published under subsection (3) with the
next account issued after the date of publication
of the notice to the customer who is taken to
have entered into the customer contract under
section 60.
(6) Failure to comply with the requirements of
subsection (5) does not affect the validity of the
variation or any contract price made in
accordance with the variation.
(7) A variation published under subsection (3) is
evidence that the Regulator has approved the
variation of the customer contract unless the
contrary is proved.
(8) Subsections (1), (3), (4), (5) and (6) do not apply
to the variation of the customer contract to the
extent that the variation relates to alteration of
the price and the alteration is in accordance with
a determination of the Regulator.
(9) Following variation of a customer contract,
copies of the contract and explanatory material
concerning the contract are to be made available
to the public in such manner as may be
determined by the Regulator.
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Division 5 Price regulation
63. Application of this Division
(1) Subject to subsection (2), this Division applies to
the prices, terms and conditions for the provision
of regulated services.
(2) The Treasurer may determine that this Division
does not apply if, in the Treasurer's opinion
(a) in relation to the provision of regulated
services, there is effective competition;
or
(b) it is not in the public interest that this
Division apply.
(3) The Treasurer is to seek the advice of the
Regulator before making a determination under
subsection (2).
(4) Before providing advice to the Treasurer under
subsection (3), the Regulator is to seek
submissions on the proposed determination by
publishing a notice of the proposed
determination, in daily newspapers published
and circulating in Tasmania, that invites
submissions from the public.
(5) A notice published under subsection (4) is to
include information on how a submission can be
made and the timeframes for providing a
submission.
(6) The Regulator is to consider any submission
received under subsection (5) before advising the
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Treasurer with respect to the proposed
determination.
64. Price regulation of regulated services
(1) The Regulator may regulate the prices, terms and
conditions for the provision of a regulated
service by a regulated entity.
(2) In regulating prices, terms and conditions for
regulated services under subsection (1), the
Regulator may issue guidelines for the
separation of accounts, information and
functions within regulated entities.
65. Price and service plan
(1) The Regulator must, by notice given to a
regulated entity, require the regulated entity to
submit a proposed price and service plan for
regulated services to the Regulator for approval
by not later than the date specified in the notice.
(2) A regulated entity must submit a proposed price
and service plan to the Regulator by the date
specified in the notice given to the regulated
entity under subsection (1).
Penalty: Fine not exceeding 1 000 penalty
units.
(3) The proposed price and service plan submitted
under subsection (1) must include
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(a) proposed regulated services to be
provided to customers; and
(b) any customer contract; and
(c) standards and conditions of service
which are in compliance with the
customer service code; and
(d) proposed prices for each regulated
service.
(4) The proposed price and service plan submitted
under subsection (1) may include
(a) proposed annual revenue requirements;
and
(b) projected capital and operational
expenses; and
(c) supply and demand forecasts; and
(d) such other matters as required by the
Regulator in guidelines issued under
subsection (7).
(5) The Regulator must approve a proposed price
and service plan for a regulated entity if the
Regulator is satisfied that the proposed price and
service plan fulfils the requirements for a price
and service plan as set out in guidelines issued
under subsection (7) and any relevant price
determination under section 66.
(6) The Regulator may require amendments to be
made to the proposed price and service plan,
including amendments to ensure that the price
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and service plan complies with a price
determination, before approving it.
(7) The Regulator must issue guidelines to a
regulated entity for the preparation of a proposed
price and service plan.
(8) The guidelines referred to in subsection (7)
may
(a) specify the requirements for a regulated
entity to comply with when submitting a
proposed price and service plan to the
Regulator for approval; and
(b) specify the process for the preparation
and approval of a proposed price and
service plan, including the extent of
public consultation and timelines and the
subsequent publication of prices for each
regulated service.
(9) A price and service plan approved under
subsection (5) is to relate to a regulatory period.
(10) The Regulator may, by notice in writing given to
a regulated entity, direct the regulated entity to
publish a price and service plan approved under
subsection (5).
(11) A regulated entity must comply with a direction
given to it under subsection (10).
Penalty: Fine not exceeding 50 penalty units.
(12) The Treasurer may, by notice published in the
Gazette, fix
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(a) the duration of the first regulatory period,
which period is to commence on the first
day after approval by the Regulator of a
price and service plan; and
(b) the minimum duration of each
subsequent regulatory period.
(13) The Regulator is to declare, by notice published
in the Gazette, the duration of each subsequent
regulatory period, being a period which is not
less than a minimum period specified by the
Treasurer under this section.
(14) A declaration made by the Regulator under
subsection (13) must be made not less than 2
years before the end of each subsequent
regulatory period.
66. Price determinations
(1) The Regulator is to make price determinations
that apply to a regulated entity in respect of a
regulated service.
(2) In making a price determination under
subsection (1), the Regulator must
(a) adopt an approach and methodology
which the Regulator considers will best
meet the objective of this Act; and
(b) determine prices, terms and conditions,
including developer charges, for water
services and sewerage services in
accordance with the pricing principles
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referred to in section 68 or any principles
prescribed by regulations under that
section; and
(c) consider any proposed price and service
plan submitted under section 65; and
(d) consider any customer contract; and
(e) ensure that the price determination takes
into account and clearly articulates any
trade-offs between costs and service
standards; and
(f) have regard to any matters contained in
the regulations.
(3) Without limiting the generality of subsection (1),
a price determination made under this section
may provide for one or more of the following:
(a) fixing the price or the rate of increase or
decrease in the price for a regulated
service or other price control formula;
(b) fixing a maximum and minimum price or
maximum rate of increase or decrease or
minimum rate of increase or decrease in
the maximum and minimum price for a
regulated service;
(c) fixing an average price for a regulated
service specified in the determination or
an average rate of increase or decrease in
the average price;
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(d) specifying pricing policies or principles
that are to be applied in relation to a
regulated service;
(e) specifying a price determined by
reference to a general price index, the
cost of production, a rate of return on
assets employed or any other factor
specified in the determination;
(f) specifying a price determined by
reference to quantity, location, period or
other factor specified in the
determination relevant to the rate or
provision of a regulated service;
(g) fixing a maximum and minimum revenue
or maximum rate of increase or decrease
or minimum rate of increase or decrease
in the maximum and minimum revenue
in relation to a regulated service;
(h) specifying a factor or factors to be
applied, and the manner in which such a
factor is or factors are to be applied, in
setting prices, terms and conditions for a
regulated service.
(4) Before the Regulator makes a price
determination under subsection (1), the
Regulator is to publish, in daily newspapers
published and circulating in Tasmania, a notice
of the Regulator's intention to make a price
determination.
(5) The notice under subsection (4) is to include
information as to where a copy of the proposed
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price determination, and the proposed price and
service plan on which the proposed price
determination is based, can be obtained or
viewed.
(6) The Regulator is to publish the proposed price
determination, and the proposed price and
service plan on which the proposed price
determination is based, on the Regulator's
internet website.
(7) The Regulator is to make a price determination
in accordance with section 67.
(8) The regulations may provide for
(a) the conduct of investigations by the
Regulator into the price and pricing
policies of regulated entities; and
(b) the appointment of assistants to the
Regulator for the purposes of carrying
out investigations referred to in
paragraph (a); and
(c) the liability of regulated entities for the
costs by the Regulator incurred in
undertaking such investigations; and
(d) any related matter.
67. General provisions relating to determinations
(1) A determination under this Act must include a
statement of the purpose of, and reasons for, the
making of the determination.
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(2) The Regulator must publish notice of the making
of a determination under this Act
(a) in the Gazette; and
(b) in daily newspapers published and
circulating in Tasmania; and
(c) on the Regulator's internet website.
(3) The notice under subsection (2) must include
(a) a brief description of the nature and
effect of the determination; and
(b) details of when the determination takes
effect and how a copy of the
determination may be obtained from the
Regulator.
(4) The Regulator must send a copy of a
determination to each regulated entity to which
the determination applies.
(5) A determination takes effect on and from
(a) the date on which notice of its making is
published in the Gazette; or
(b) any later date of commencement as may
be specified in the determination.
(6) A determination has effect until
(a) it is amended or revoked by a later
determination; or
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(b) such other date as is specified in the
determination, being a date that is not
later than the date of the end of the
regulatory period to which the
determination applies.
(7) A determination is binding on a regulated entity
to which the determination applies.
(8) Following the making of a determination under
this Act, the Regulator may require the regulated
entity to amend any document of the regulated
entity that relates to the provision of a regulated
service that is publicly available so that it is
consistent with the Regulator's determination.
(9) It is a condition of a regulated entity's licence
that the regulated entity must comply with a
determination under this Act and any
requirement under this section.
68. Pricing principles
(1) For the purposes of this Division, the following
pricing principles apply in relation to the price
for the provision of a regulated service:
(a) a regulated entity is to be provided with a
reasonable opportunity to recover the
efficient costs which the regulated entity
incurs in
(i) providing a regulated service; and
(ii) complying with a regulatory
obligation or requirement or
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making a regulatory payment
under this Act, except where this
Act otherwise provides;
(b) the price is to provide for efficient
pricing through
(i) two-part pricing for water
services based on the recovery of
fixed costs and variable costs by
way of separate charges through
voluntary metering, mandatory
metering or in such other manner
as determined by the Regulator;
and
(ii) variation between locations,
regions or schemes to reflect the
costs of servicing particular
customers or classes of
customers;
(c) the price is to provide effective
incentives to promote economic
efficiency, reduce costs or otherwise
improve productivity with respect to a
regulated service;
(d) the price is to allow for a return to the
regulated entity commensurate with the
regulatory and commercial risks involved
in providing the regulated service to
which that price relates;
(e) to the extent that it is commercially and
technically reasonable, the price charged
to a particular customer or class of
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customers is to reflect at least the costs
that are directly attributable to the
provision of the regulated service to that
customer or class of customers.
(2) The regulations may prescribe additional pricing
principles in relation to the provision of a
regulated service.
Division 6 Performance monitoring, reporting and audits
69. Performance monitoring and reporting
(1) The Regulator is to develop annual performance
reporting requirements against which regulated
entities are to report.
(2) In developing the annual performance reporting
requirements, the Regulator must take into
account the objective of this Act and any other
matter prescribed by the regulations.
(3) The Regulator is to issue guidelines to regulated
entities in relation to the regulated entities'
annual performance reporting requirements.
(4) It is a condition of a regulated entity's licence
that the regulated entity must comply with any
guidelines issued under subsection (3).
70. State of the industry report
(1) The Regulator on or before 1 April in each year
is to prepare a report on the state of the water
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and sewerage industry in the previous financial
year (the "state of the industry report").
(2) The state of the industry report is to include an
overview of the performance of the water and
sewerage industry and identify key priorities for
improved performance of the industry.
(3) The state of the industry report is to include
summaries of any relevant information reported
by a regulated entity to the Regulator under
section 69.
(4) In the preparation of the state of the industry
report, the Regulator must consult the Director
of Public Health and the Director of
Environmental Management and the Secretary of
the responsible Department in relation to the
Water Management Act 1999 and any other
person that the Regulator considers appropriate.
(5) The Regulator is to cause a copy of the state of
the industry report to be
(a) laid before each House of Parliament
within 7 sitting-days after preparing it;
and
(b) published on the Regulator's internet
website within 7 days after preparing it.
71. Auditing
(1) The Regulator may carry out such audits in
relation to the regulated activities of a regulated
entity as the Regulator reasonably requires to
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enable the Regulator to perform his or her
functions or exercise his or her powers under this
Act.
(2) In any audit that is conducted under
subsection (1), the Regulator may, subject to
subsection (3), decide the scope and frequency
of such audits.
(3) An audit conducted under subsection (1) is not to
be conducted more frequently than once in any
financial year.
72. Audits requested by Minister
The Minister may request the Regulator to audit
the compliance of a regulated entity in respect of
a regulated entity's licence obligations and the
Regulator must carry out that audit in
accordance with that request.
73. Publication of audit results
The Regulator must publicly report on the results
of all audits conducted under section 71 or 72.
74. Costs of audit
The costs of an audit carried out by the
Regulator are to be paid to the Regulator by the
regulated entity to which the audit relates.
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Division 7 Complaints and disputes
75. Customer complaints process
(1) A customer who is not satisfied with the
provision of a regulated service may lodge a
complaint with the regulated entity which
provides that regulated service.
(2) The Regulator may, by notice given to the
regulated entity, require the regulated entity to
submit, by not later than the date specified in the
notice, a proposed customer complaints process
to the Regulator for approval.
(3) A regulated entity must submit a proposed
customer complaints process to the Regulator by
the date specified in a notice given to the
regulated entity under subsection (2).
Penalty: Fine not exceeding 100 penalty units.
(4) On receipt of a proposed customer complaints
process, the Regulator may
(a) require amendments to be made to the
proposed customer complaints process
before approving the customer
complaints process; or
(b) draft and approve a customer complaints
process to apply in relation to a regulated
entity if a regulated entity fails to submit
a proposed customer complaints process
as required by subsection (3) or fails to
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amend its proposed customer complaints
process as required by the Regulator.
(5) A regulated entity must cause the customer
complaints process to be made available to the
public in a manner approved by the Regulator.
Penalty: Fine not exceeding 50 penalty units.
76. Complaints to Ombudsman
A customer who is not satisfied with the
outcome of his or her complaint under the
customer complaints process may make a
complaint about that outcome to the
Ombudsman under the Ombudsman Act 1978.
77. Compliance with Ombudsman's decision
It is a condition of a regulated entity's licence
under which a regulated entity provides
regulated services to customers that the regulated
entity is bound by, and must comply with, any
recommendations made by the Ombudsman
relating to a complaint involving the regulated
entity and a customer.
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PART 5 ADMINISTRATIVE REVIEW OF
REGULATOR'S DECISIONS
78. Definitions used in this Part
In this Part
"Court" means the Magistrates Court
(Administrative Appeals Division);
"intervener" means a person who has applied
under section 82 to intervene in a review
of a reviewable decision;
"reviewable decision" means
(a) a decision made by the Regulator
in respect of a determination
under section 66; or
(b) a decision made by the Regulator
to approve, cancel, vary or
suspend a licence.
79. Applications for review
(1) The following persons may apply to the Court
for a review of a reviewable decision
(a) the regulated entity whose business is the
subject of the reviewable decision; or
(b) a person or body, who the Court is
satisfied is an affected or interested
person.
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(2) An application must
(a) be made in the form and manner
determined by the Court; and
(b) specify the grounds for review being
relied on; and
(c) be made no later than 45 business days,
or such other period as may be
determined by the Court, after the
reviewable decision is published in
accordance with this Act.
80. Grounds for review
An application under section 79(1) may be made
only on one or more of the following grounds:
(a) the Regulator made an error of fact in his
or her findings of facts, and that error of
fact was material to the making of the
decision;
(b) the Regulator made more than one error
of fact in his or her findings of facts, and
those errors of fact, in combination, were
material to the making of the decision;
(c) the exercise of the Regulator's discretion
was incorrect, having regard to all the
circumstances;
(d) the Regulator's decision was
unreasonable, having regard to all the
circumstances.
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81. Intervention by others in a review without leave
Only the following persons may intervene in a
review under this Part without leave of the
Court:
(a) the regulated entity to whom the
reviewable decision being reviewed
applies (if that entity is not the
applicant);
(b) the Minister;
(c) the Treasurer;
(d) the Ministers administering
(i) the Environmental Management
and Pollution Control Act 1994;
and
(ii) the Public Health Act 1997; and
(iii) the Water Management Act 1999.
82. Leave for interveners
(1) A person may apply to the Court for leave to
intervene in a review of a reviewable decision
under this Part.
(2) A person may only apply for leave to intervene
under subsection (1) if the Court is satisfied that
the person is an affected or interested person.
(3) An application to intervene under subsection (1)
must be made no later than 15 business days
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after the application for review of a reviewable
decision under section 79 has been lodged with
the Court in accordance with this Act.
83. Parties to a review under this Part
The parties to a review under this Part are
(a) the applicant; and
(b) the Regulator; and
(c) an intervener.
84. Interveners and the Regulator may raise new
grounds for review
(1) An intervener or the Regulator may raise in a
review under this Part any of the grounds
specified in section 80 even if the ground that is
raised by the intervener or the Regulator is not
raised by the applicant.
(2) To avoid doubt, it is for the intervener or the
Regulator to establish the grounds referred to in
subsection (1).
85. Court may terminate review
An application under section 79 may be
terminated by the Court if it decides that the
party seeking review has not acted responsibly
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during the Regulator's decision-making process
or the Court's review process.
86. Effect of application on operation of reviewable
decision
An application under section 79
(a) does not stay the operation of the
reviewable decision to which the
application applies; and
(b) stays the operation of any other
reviewable decision on the granting of
leave to apply by the Court, unless the
Court otherwise orders.
87. Court's determination
(1) The Court may make a determination in respect
of the application to
(a) affirm, set aside or vary the reviewable
decision; or
(b) substitute a new decision for the
reviewable decision; or
(c) remit the matter back to the Regulator to
make the decision again, in accordance
with any direction or recommendation of
the Court.
(2) For the purposes of making a determination of
the kind in paragraph (a) or (b), the Court may
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perform all the functions and exercise all the
powers of the Regulator under this Act.
(3) A determination by the Court affirming, setting
aside or varying the reviewable decision is, for
the purposes of this Act (other than this Part), to
be taken to be a decision of the Regulator.
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PART 6 TRANSITION TO NEW REGULATORY
ARRANGEMENTS
88. Interim price order
(1) The Treasurer may, by notice published in the
Gazette and in daily newspapers published and
circulating in Tasmania, make an interim order
in relation to the prices, terms and conditions for
the provision of a regulated service.
(2) Before an interim order may be made under
subsection (1), the Treasurer must obtain advice
from the Regulator in relation to the matters
contained in the order.
(3) An order made under this section remains in
force until the commencement of the first
regulatory period fixed under section 65(12).
(4) A regulated entity must comply with an order
made under this section.
Penalty: Fine not exceeding 500 penalty units.
(5) Without limiting the generality of subsection (1),
an order made under this section may provide for
one or more of the following:
(a) fixing the price or the rate of increase or
decrease in the price for a regulated
service;
(b) fixing a maximum and minimum price or
maximum rate of increase or decrease or
minimum rate of increase or decrease in
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the maximum and minimum price for a
regulated service;
(c) fixing an average price for a regulated
service or an average rate of increase or
decrease in the average price;
(d) specifying pricing policies or principles
that are to be applied in relation to a
regulated service;
(e) specifying a price determined by
reference to a general price index, the
cost of production, a rate of return on
assets employed or any other specified
factor;
(f) specifying a price determined by
reference to quantity, location, period or
other specified factor relevant to the rate
or provision of a regulated service;
(g) fixing a maximum and minimum revenue
or maximum rate of increase or decrease
or minimum rate of increase or decrease
in the maximum and minimum revenue
in relation to regulated services;
(h) specifying a factor or factors to be
applied, and the manner in which such a
factor is or factors are to be applied, in
setting prices, terms and conditions for a
regulated service.
(6) An order made under this section may impose
functions and confer powers on the Regulator
relating to the prices, terms and conditions for
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the provision of a regulated service specified in
such an order.
(7) The Treasurer is to give a copy of an order made
under this section to each regulated entity that
provides a regulated service to which the order
applies.
(8) If there is an inconsistency between this Act and
regulations made under this Act and any order
made under this section, this Act or the
regulations prevail to the extent of the
inconsistency.
89. Interim licences
(1) The Minister may grant an interim licence to a
person to authorise an activity specified in
section 30 on such terms and conditions that the
Minister considers appropriate and as are
specified in the interim licence.
(2) An interim licence granted to a person under
subsection (1) remains in force
(a) for a period not exceeding 2 years from
the day on which it is granted; or
(b) until a licence is granted to that person
under section 35(1) in relation to an
activity for which that interim licence is
granted
whichever is the earlier.
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(3) The Minister may, by written notice given to a
person to which an interim licence is granted
under subsection (1), impose such interim
licence conditions as the Minister considers
appropriate to be complied with by that person.
(4) Before granting an interim licence under
subsection (2) or imposing interim licence
conditions, the Minister must obtain advice from
the Regulator in relation to the granting of the
interim licence or imposition of the interim
licence conditions.
90. Interim exemption from requirement to be licensed
(1) The Minister may, by order, exempt a person
who provides a regulated service specified in the
order, other than a Regional Corporation or the
Common Services Corporation, from the
requirement to hold a licence under section 30 or
comply with any other provision of this Act until
a date specified in the order.
(2) The date specified in an order made under
subsection (1) is to be not later than the
commencement of the first regulatory period.
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PART 7 MISCELLANEOUS
Division 1 Authorised officers
91. Appointment of authorised officers
(1) The Regulator may appoint suitable persons as
authorised officers.
(2) An authorised officer may, but need not, be a
State Service officer or State Service employee.
(3) In the exercise of the authorised officer's
powers, the authorised officer is subject to
control and direction by the Regulator.
92. Conditions of appointment
(1) An authorised officer holds office for such
period and, on such conditions, as are specified
in the authorised officer's instrument of
appointment.
(2) An authorised officer may resign by written
notice given to the Regulator.
(3) An authorised officer may be removed from
office by the Regulator for any reason that the
Regulator considers sufficient.
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93. Authorised officer's identity card
(1) The Regulator must provide each authorised
officer with an identity card.
(2) The identity card must
(a) contain a photograph of the authorised
officer taken for the purpose; and
(b) be signed by the authorised officer.
94. Production of identity card
An authorised officer must, before exercising a
power that may affect a person, produce the
officer's identity card for inspection on demand
by that person.
Penalty: Fine not exceeding 10 penalty units.
95. Power of entry
(1) An authorised officer may, as may be reasonably
required for the purposes of the enforcement of
this Act, carry out an audit under this Act or
inspect any document relating to a price and
service plan, or enter and remain in any place.
(2) When an authorised officer enters a place under
this section, the authorised officer
(a) may be accompanied by such assistants
as the authorised officer considers
necessary or appropriate; and
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(b) may take any equipment the authorised
officer considers necessary or
appropriate for the functions that the
authorised officer is to carry out in the
place.
(3) An authorised officer may use reasonable force
to enter and remain in a place under this Part.
(4) A person must not obstruct, hinder, delay,
threaten or assault a person who is
(a) authorised to enter a place under this
section; and
(b) acting in accordance with this section.
Penalty: Fine not exceeding 100 penalty units.
96. General investigative powers of authorised officers
(1) An authorised officer who enters a place under
this Division may exercise any one or more of
the following powers:
(a) investigate whether the provisions of this
Act are being, or have been, complied
with;
(b) search for, examine and copy, or take an
extract from a document or record of any
kind as reasonably required for the
purposes of the enforcement of this Act;
(c) take photographs or make films or other
records of activities in the place;
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(d) take samples of water or sewage in the
place;
(e) take possession of any thing that may be
evidence of an offence against this Act.
(2) If an authorised officer takes possession of any
thing that may be evidence of an offence
(a) the authorised officer must give the
occupier of the place a receipt for the
thing; and
(b) the thing must be returned to its owner
(i) if proceedings for an offence are
not commenced within 6 months
after the authorised officer takes
possession of the thing, at the end
of that period; or
(ii) if such proceedings are
commenced within that period,
on completion of the proceedings,
unless the court, on application
by the Regulator, orders
confiscation of the thing.
(3) A court may order the confiscation of a thing of
which an authorised officer has taken possession
under subsection (1) if the court is of the opinion
that the thing has been used for the purpose of
committing an offence or that there is some other
proper reason for ordering its confiscation.
(4) If the court orders the confiscation of a thing
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(a) the Regulator may dispose of the thing;
and
(b) the person from whom the thing is
confiscated is not entitled to be
compensated for loss of the thing.
97. Authorised officer's power to require information
(1) An authorised officer may require a person to
provide information in the person's possession
relevant to the enforcement of this Act.
(2) An authorised officer may require a person to
produce documents in the person's possession
that may be relevant to the enforcement of this
Act for inspection by the authorised officer.
(3) A person must not, without reasonable excuse,
contravene a requirement under this section.
Penalty: Fine not exceeding 100 penalty units.
(4) A person is not required to give information
under this section if the giving of that
information would tend to incriminate the person
of an offence.
98. Care to be taken
In the exercise of a power under this Act, an
authorised officer must do as little damage as
possible.
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99. Compensation
An authorised officer is to pay compensation to
the owner of any land in respect of which a
power has been exercised under this Act for any
direct loss or damage to property 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.
Division 2 General
100. Service of infringement notices
(1) An authorised officer may serve an infringement
notice on a person if the authorised officer is of
the opinion that the person has committed an
offence under this Act.
(2) An infringement notice is not to be served on a
person who has not attained the age of 18 years.
(3) An infringement notice is to be in accordance
with the Monetary Penalties Enforcement Act
2005.
101. Confidentiality
(1) A person who is, or has been, employed in
carrying out duties related to the administration
of this Act must not disclose information
acquired in the course, or as a result, of carrying
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out those duties if that information is
confidential and, at the time it is provided to the
person, the person providing it states that it is of
a confidential nature except
(a) as may be required for the purposes of
this Act; or
(b) as authorised by the person to whom the
duty of confidentiality is owed; or
(c) as authorised or required by the
regulations; or
(d) as authorised or required by a court or
other lawfully constituted authority; or
(e) as authorised or required by the Minister
or the Treasurer, as applicable, after
consultation with the person to whom the
duty of confidentiality is owed.
Penalty: Fine not exceeding 500 penalty units.
(2) No civil liability attaches to any person for a
disclosure of confidential information made as
authorised or required under subsection (1).
(3) The Regulator may, in connection with the
performance of his or her functions or the
exercise of his or her powers under this Act,
disclose confidential information to any person if
the Regulator is of the opinion
(a) that the disclosure of the information
would not cause detriment to the person
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supplying it or to the person from whom
that person received it; or
(b) that, although the disclosure of the
information would cause detriment to
such a person, the public benefit in
disclosing it outweighs that detriment.
(4) Where subsection (3) applies, the person to
whom the duty of confidentiality is owed must
be afforded an opportunity prior to disclosure to
withdraw the relevant confidential information
from the Regulator.
(5) If the person to whom the duty of confidentiality
is owed has withdrawn confidential information
under subsection (4), the Regulator may have no
regard to the confidential information in
performing his or her functions or exercising his
or her powers under this Act.
(6) For the purposes of this section
"confidential information" includes a
confidential document.
102. False or misleading information
A person must not furnish information to the
Minister, the Treasurer, the Regulator, a
regulated entity or an authorised officer that is
false or misleading in a material particular.
Penalty: Fine not exceeding 100 penalty units.
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103. Exclusion of personal liability
Any matter or thing done or omitted to be done
by the Minister, the Treasurer, the Regulator or
an authorised officer, or by any person acting
under the direction of the Minister, Treasurer or
Regulator, 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.
104. Liability of regulated entity
(1) If an agent of a regulated entity commits an
offence under this Act
(a) the regulated entity is taken to have
committed the offence; and
(b) proceedings for the offence may be
brought against the regulated entity
whether or not proceedings are brought
against the agent.
(2) It is a defence in proceedings for an offence
under subsection (1) if the regulated entity can
show that it
(a) issued written instructions and took
reasonable precautions to ensure
compliance with this Act; and
(b) did not know the offence had been
committed; and
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(c) could not reasonably have prevented the
commission of the offence.
105. Offences by corporations
(1) If a corporation contravenes, whether by act or
omission, any provision of this Act, 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
(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
reasonable 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.
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(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.
106. Liability of employers and principals
(1) If an employee or agent commits an offence
under this Act
(a) the employer or the principal is taken to
have committed that offence; and
(b) proceedings for that offence may be
brought against the principal or employer
whether or not proceedings are brought
against the employee or agent.
(2) It is a defence in proceedings for an offence
under subsection (1) if the employer or principal
can show that he or she
(a) did not know the offence had been
committed; and
(b) could not reasonably have prevented the
commission of the offence.
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107. Liability of officers of body corporate
(1) An officer of a body corporate which commits
an offence is taken to have committed that
offence if it is proved that
(a) the offence was committed with the
consent or connivance of the officer; or
(b) the officer failed to exercise reasonable
care to prevent the commission of the
offence having regard to the nature of the
officer's functions and the circumstances
of the offence.
(2) This section does not apply to an employee of a
body corporate who is not concerned in the
management of the body corporate.
108. Regulator's costs
(1) Each regulated entity is required to pay to the
Regulator the Regulator's costs incurred in
connection with carrying out the Regulator's
functions and exercising the Regulator's powers
under this Act in relation to the regulated entity,
including the costs of
(a) making a determination in connection
with the provision of regulated services;
and
(b) approving a price and service plan
submitted by the regulated entity for
approval by the Regulator; and
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(c) approving a customer contract submitted
by the regulated entity; and
(d) carrying out audits under sections 71 and
72; and
(e) any other matter related to the regulated
entity
except as otherwise required under this Act.
(2) If a regulated entity fails to pay the Regulator's
costs referred to in subsection (1), the Regulator
may recover those costs from the regulated
entity in a court of competent jurisdiction as a
debt due to the Regulator.
(3) Without limitation, a licence may include
conditions relating to the determination of the
cost of performing the Regulator's functions and
exercising the Regulator's powers.
109. Recovery of monetary penalties
Any unpaid monetary penalty imposed on a
regulated entity under this Act may be recovered
in any court of competent jurisdiction as a debt
due to the Crown.
110. Recovery of unpaid fees, charges, &c.
If a fee, charge or other amount owed to the
Minister, the Treasurer or the Regulator under
this Act is not paid by the due date as required
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under this Act, the fee, charge or amount
together with interest on that fee, charge or
amount calculated at the prescribed rate is
recoverable in a court of competent jurisdiction
as a debt due to the Crown from the person liable
to pay the fee, charge or amount.
111. Payments into Consolidated Fund
Unless the Treasurer determines otherwise, the
following amounts are to be paid into the
Consolidated Fund:
(a) any fees or charges paid under this Act;
(b) any penalties paid under this Act;
(c) any other money received under this Act.
112. Evidentiary certificates
A certificate that is issued by the Regulator and
that states that, on a specified date or during a
specified period
(a) a specified person was or was not a
regulated entity 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
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(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.
113. Evidentiary provision for documents
A document that purports to have been certified
by the Minister or the Regulator to be an
accurate copy of a licence or an interim licence
is, in the absence of proof to the contrary, to be
accepted in any proceedings under this Act as an
accurate copy of that licence.
114. Notices not statutory rules
(1) A notice specified in this Act is not a statutory
rule within the meaning of the Rules Publication
Act 1953.
(2) The Subordinate Legislation Act 1992 does not
apply to a notice specified in this Act.
115. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) Without limiting subsection (1), the regulations
may
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(a) provide for fees and charges payable in
respect of any matter under this Act; or
(b) provide for the extension of time for
payment of any fee or charge; or
(c) provide for the waiving of any fee or
charge; or
(d) provide for the refunding of any fee or
charge.
(3) Without limiting subsection (1), the regulations
may require any document or information that is
required to be provided or given to any person to
be verified by statutory declaration.
(4) Regulations may be made so as to apply
differently according to matters, limitations or
restrictions, whether as to time, circumstance or
otherwise, specified in the regulations.
(5) The regulations may
(a) provide that a contravention of any of the
regulations is an offence; and
(b) in respect of such an offence, provide for
the imposition of a fine not exceeding
100 penalty units.
(6) The regulations may authorise any matter to be
from time to time determined, applied, approved
or regulated by the Minister, the Treasurer or the
Regulator.
(7) The regulations may adopt, either wholly or in
part and with or without modification, and either
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specifically or by reference, to any of the
standards, rules, codes or specifications of any
prescribed authority, whether the standards,
rules, codes or specifications are published or
issued before or after the commencement of this
section.
(8) A reference in subsection (7) to standards, rules,
codes or specifications includes a reference to an
amendment of those standards, rules, codes or
specifications, whether the amendment is
published or issued before or after the
commencement of this section.
(9) The regulations may contain provisions of a
savings or transitional nature consequent on the
enactment of the relevant provision or provisions
of this Act.
(10) Regulations made under subsection (9) may take
effect on the day on which the relevant provision
or provisions of this Act commences or
commence or a later day as specified in the
regulations, whether the day so specified is
before, on or after the day on which the
regulations are made.
116. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act, except
Subdivision 3 of Division 1, and
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Division 5 of Part 4 and sections 88 and
111 is assigned to the Minister for
Primary Industries and Water and the
department responsible to that Minister
in relation to the administration of this
Act, except Subdivision 3 of Division 1,
and Division 5 of Part 4 and sections 88
and 111, is the Department of Primary
Industries and Water; and
(b) the administration of Subdivision 3 of
Division 1, and Division 5 of Part 4 and
sections 88 and 111 is assigned to the
Treasurer and the department responsible
to the Treasurer in relation to the
administration of Subdivision 3 of
Division 1, and Division 5 of Part 4 and
sections 88 and 111 is the Department of
Treasury and Finance.
117. Consequential Amendments
The legislation specified in Schedule 1 is
amended as specified in that Schedule.
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SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
Section 117
Ombudsman Act 1978
1. Section 4(1) is amended by inserting after
paragraph (i) the following paragraph:
(ia) a regulated entity within the meaning of
the Water and Sewerage Industry Act
2008;
Government Printer, Tasmania 113