New South Wales: Water NSW Act 2014 (NSW)

Water NSW Act 2014 No 74 An Act to provide for State Water Corporation to become Water NSW and to abolish the Sydney Catchment Authority and transfer its functions to Water NSW; and to repeal and amend certain legislation consequentially. Part 1 Preliminary 1 Name of Act This Act is the Water NSW Act 2014. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— area of operations of Water NSW—see section 15. assets—see clause 2 (1) of Schedule 1. authorised officer means a person who has been appointed as an authorised officer under this Act. board means the board of directors of Water NSW. catchment audit means an audit conducted under section 42. catchment health, in relation to a declared catchment area, means the condition of ecosystems and systems of management (such as sewerage and stormwater systems) in that catchment that protect water quality. catchment infrastructure works means— (a) water storages, water mains, or connected or associated works, or (b) monitoring devices in, under, over or near any works referred to in paragraph (a), or (c) any works ancillary or antecedent to any works referred to in paragraph (a) or (b), or (d) hydro-electric plants or associated infrastructure or works, and includes anything prescribed by the regulations as being within this definition, but excludes anything prescribed by the regulations as being outside this definition. catchment management means the management of land and water resources in a declared catchment area. chief executive officer means the chief executive officer of Water NSW. controlled area means an area of land for the time being declared under this Act to be a controlled area. county council means a county council under the Local Government Act 1993. declared catchment area means an area of land for the time being declared under this Act to be a declared catchment area. Department means the Department of Industry, Skills and Regional Development. Fish River water supply scheme means the water management work comprising the concrete dam on Fish River at Oberon and Duckmaloi Weir, together with— (a) its associated gravitation main, concrete reservoirs, reticulation systems and treatment works, and (b) the pumping station at Oberon, and (c) all incidental and connected works, and (d) all additions, amplifications, improvements and extensions to that scheme. function includes a power, authority or duty, and exercise a function includes perform a duty. IPART means the Independent Pricing and Regulatory Tribunal established under the Independent Pricing and Regulatory Tribunal Act 1992. land includes the following— (a) the sea or an arm of the sea, (b) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal, (c) a river, stream or watercourse, whether tidal or non-tidal, (d) a building erected on the land. lease includes a licence or permit. liabilities—see clause 2 (1) of Schedule 1. listed functions of Water NSW—see section 7 (1). Ministerial Corporation means the Water Administration Ministerial Corporation constituted by the Water Management Act 2000. motor vehicle means any motor car, motor cycle or other vehicle propelled by any means other than human or animal power. operating licence means an operating licence granted under this Act or any renewal of it. operational audit means an operational audit of Water NSW that is required to be prepared under an operating licence. owner, in relation to land, includes every person who jointly or severally at law or in equity— (a) is entitled to the land for an estate of freehold in possession, or (b) is a person to whom the Crown has contracted to sell the land under the Crown Land Management Act 2016 or any other Act relating to alienation of land of the Crown, or (c) is entitled to receive, or receives, or if the land were let to a tenant would receive, the rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession or otherwise, and, in relation to land of the Crown, means the Crown, but does not include a person who, or a class of persons that, is declared by the regulations as being outside this definition, either generally or in a particular case or class of cases. public authority includes a corporation that is incorporated by or under an Act, but does not include— (a) a company within the meaning of the Corporations Act 2001 of the Commonwealth, or (b) a co-operative within the meaning of the Co-operatives National Law (NSW), or (c) an association incorporated under the Associations Incorporation Act 2009, or (d) a body prescribed by the regulations as not being a public authority for the purposes of this definition. Regulatory Authority—see section 61. rights—see clause 2 (1) of Schedule 1. special area means an area of land for the time being declared under this Act to be a special area. specified includes referred to. State Water Corporation means State Water Corporation as constituted by the State Water Corporation Act 2004 immediately before the repeal of that Act by this Act. Sydney catchment area means the declared catchment area known as the Sydney catchment area referred to in clause 17 of Schedule 2, as declared from time to time under this Act. water storages means dam walls, pumps and other works used for or with respect to the extraction, and storage, of— (a) water in rivers and lakes, and (b) water occurring naturally on the surface of the ground, and (c) sub-surface waters. works, in relation to Water NSW, includes— (a) any catchment infrastructure works, metering equipment, water storages and other water management works vested in or under the control of Water NSW, and (b) any other assets of Water NSW of a kind prescribed by the regulations. (2) In this Act, each of the following terms and expressions has the same meaning as in the Water Management Act 2000— estuary lake metering equipment river water management work water source water supply authority (3) Subject to subsections (1) and (2), words and expressions used in this Act have the same meanings as they have in the State Owned Corporations Act 1989. (4) Notes included in this Act do not form part of this Act. Part 2 Constitution and functions of Water NSW Division 1 Constitution of Water NSW 4 Constitution of Water NSW (1) State Water Corporation continues in existence as a corporation constituted by this Act, but with the new corporate name of Water NSW. (2) Accordingly, Water NSW is taken for all purposes (including the rules of private international law) to be a continuation of, and the same legal entity as, State Water Corporation. Note— Schedule 3 to this Act, as originally enacted, amended the State Owned Corporations Act 1989 to provide for Water NSW to continue to be a statutory State owned corporation. The State Owned Corporations Act 1989 contains a number of provisions that will apply to Water NSW as a statutory State owned corporation. In particular— (a) Part 3 contains provisions relating to the status of Water NSW, the application of the Corporations Act 2001 of the Commonwealth, the issue of shares to the Treasurer and another Minister, the board of directors, the chief executive officer, the employment of staff, the giving of directions by the portfolio Minister (including directions for the performance of non-commercial activities or the carrying out of public sector policies), the constitution of Water NSW, dividends and tax-equivalent payments, government guarantees, the sale or disposal of assets and the legal capacity and general powers of Water NSW, and (b) Part 4 deals with the accountability of Water NSW (including statements of corporate intent, annual reports and accounts), and (c) Part 5 deals with miscellaneous matters (including the duties and liabilities of directors and the application of public sector legislation). 5 Foundation charter of Water NSW (1) For the purposes of the State Owned Corporations Act 1989, the foundation charter of Water NSW is this Part (but not the remainder of this Act). Note— Section 3 of the State Owned Corporations Act 1989 defines the foundation charter of a statutory State owned corporation (SOC) as the whole of any Act by which a SOC is established for the purposes of the State Owned Corporations Act 1989 and, in particular, for the purpose of the provisions relating to the legal capacity of statutory SOCs and assumptions that they have complied with that Act and their foundation charter. (2) Nothing in this section limits the operation of section 4. Division 2 Objectives and functions of Water NSW 6 Objectives of Water NSW (1) The principal objectives of Water NSW are— (a) to capture, store and release water in an efficient, effective, safe and financially responsible manner, and (b) to supply water in compliance with appropriate standards of quality, and (c) to ensure that declared catchment areas and water management works in such areas are managed and protected so as to promote water quality, the protection of public health and public safety, and the protection of the environment, and (d) to provide for the planning, design, modelling and construction of water storages and other water management works, and (e) to maintain and operate the works of Water NSW efficiently and economically and in accordance with sound commercial principles. (2) The other objectives of Water NSW are as follows— (a) to be a successful business and, to that end— (i) to operate at least as efficiently as any comparable business, and (ii) to maximise the net worth of the State's investment in Water NSW, (b) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates, (c) to exhibit a sense of responsibility towards regional development and decentralisation in the way in which it operates, (d) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act 1991. (3) The other objectives of Water NSW are of equal importance, but are not as important as the principal objectives of Water NSW. (4) Section 20E of the State Owned Corporations Act 1989 does not apply to Water NSW. (5) Nothing in this section gives rise to, or can be taken into account in, any civil cause of action. 7 Functions of Water NSW (1) For the purposes of this Act, the listed functions of Water NSW are as follows— (a) to capture and store water and to release water— (i) to persons entitled to take the water, including release to regional towns, and (ii) for any other lawful purpose, including the release of environmental water, (b) to supply water to the Sydney Water Corporation, (c) to supply water to water supply authorities and to local councils or county councils prescribed by the regulations, (d) to supply water to licensed operators and licensed retailers within the meaning of the Water Industry Competition Act 2006, (e) to supply water to other persons and bodies, but under terms and conditions that prevent the person or body concerned from supplying the water for consumption by others within the State unless the person or body is authorised to do so by or under an Act, (f) to construct, maintain and operate water management works (including providing or constructing systems or services for supplying water), (g) to protect and enhance the quality and quantity of water in declared catchment areas, (h) to manage and protect declared catchment areas and water management works vested in or under the control of Water NSW that are used within or for the purposes of such areas, (i) to undertake flood mitigation and management, (j) to undertake research on catchments generally, and in particular on the health of declared catchment areas, (k) to undertake an educative role within the community. (2) Water NSW may— (a) provide facilities or services that are necessary, ancillary or incidental to its listed functions, and (b) conduct any business or activity (whether or not related to its listed functions) that it considers will further its objectives. (3) However, the listed functions of Water NSW and its functions under subsection (2)— (a) may only be exercised under the authority of, and in accordance with, one or more operating licences, and (b) are subject to any applicable requirements under the Water Management Act 2000 or the Water Act 1912. (4) Water NSW also has such other functions as may be conferred or imposed on it— (a) by or under another provision of this Act, or (b) by or under any other Act or law, or (c) by an operating licence. (5) Nothing in this Act requires the authorisation of an operating licence for the exercise of a function that is conferred or imposed on Water NSW by or under another provision of this Act or by or under any other Act or law. Division 3 Management of Water NSW 8 Board of directors of Water NSW (1) The board of directors of Water NSW is to consist of not fewer than 3, and not more than 8, directors appointed by the voting shareholders. (2) The voting shareholders are to consult with the portfolio Minister on the persons recommended for appointment as directors. (3) The person for the time being holding office as chief executive officer of Water NSW is to be a director of the board. (4) Schedule 8 to the State Owned Corporations Act 1989 and section 20J (subsections (2) and (5) excepted) of that Act apply with respect to the board. (5) The persons appointed as directors are, between them, to have the necessary expertise, skills and knowledge that will enable Water NSW to meet its objectives. 9 Chief executive officer (1) The chief executive officer of Water NSW is to be appointed by the board after consultation with the voting shareholders and the portfolio Minister. (2) The board may remove a person from office as chief executive officer, at any time, for any or no reason and without notice, but only after consultation with the voting shareholders and the portfolio Minister. (3) The chief executive officer is entitled to be paid such remuneration (including travelling and subsistence allowances) as the board may determine after consultation with the voting shareholders. (4) The board may, after consultation with the voting shareholders and the portfolio Minister, fix the conditions of employment of the chief executive officer in so far as they are not fixed by or under any other Act or law. (5) The Government Sector Employment Act 2013 (Part 6 included) does not apply to the chief executive officer. (6) Clauses 1 and 4 of Schedule 9 to the State Owned Corporations Act 1989 have effect with respect to the chief executive officer. (7) The provisions of section 20K (2) and (4) of the State Owned Corporations Act 1989 do not apply to the chief executive officer. (8) The provisions of this section are in addition to, and (except to the extent to which this section provides) do not derogate from, the provisions of the State Owned Corporations Act 1989. 10 Acting chief executive officer (1) The board may, from time to time, appoint a person to act in the office of chief executive officer during the illness or absence of the chief executive officer. (2) The board may remove a person from office as acting chief executive officer, at any time, for any or no reason and without notice. (3) A person, while acting in the office of chief executive officer— (a) has all the functions of the chief executive officer and is taken to be the chief executive officer, and (b) is entitled to be paid such remuneration (including travelling and subsistence allowances) as the board may determine. (4) For the purposes of this section, a vacancy in the office of chief executive officer is regarded as an absence from office of the chief executive officer. (5) The board is not to appoint a person to act in the office of chief executive officer during any vacancy in that office without the concurrence of the voting shareholders and the portfolio Minister. (6) The provisions of this section are in addition to, and (except to the extent to which this section provides) do not derogate from, the provisions of the State Owned Corporations Act 1989. Division 4 Operating licences 11 Grant of operating licences (1) The Governor may, on the recommendation of the portfolio Minister, grant one or more operating licences to Water NSW to authorise it, in accordance with this Act, to carry out the listed functions specified in the licence, and such other functions as may be conferred or imposed on it by the licence, in the areas and circumstances (if any) specified in the licence. Note— Section 7 (5) provides that nothing in this Act requires the authorisation of an operating licence for the exercise of a function that is conferred or imposed on Water NSW by or under a provision of this Act (other than section 7) or by or under any other Act or law. (2) If Water NSW is granted more than one operating licence, each operating licence must specify the functions to which it relates and the areas or circumstances (or both) in which those functions may be exercised under the authority of that licence. (3) Except to the extent to which this Act expressly provides, nothing in an operating licence limits the requirements imposed by or under any other Act or law with respect to the functions referred to in subsection (1). (4) In this section, listed functions of Water NSW include functions under section 7 (2). 12 Terms and conditions of operating licence (1) Subject to subsection (2), an operating licence is subject to the terms and conditions determined by the Governor on the recommendation of the portfolio Minister. (2) The operating licence must include terms or conditions under which Water NSW is required— (a) in connection with an operating licence that authorises Water NSW to capture, store, release or supply water— (i) to provide, construct, operate, manage and maintain efficient, co-ordinated and commercially viable systems and services to capture, store, release or supply water, and (ii) to ensure that the systems and services meet the performance standards specified in the operating licence in relation to water delivery, water quality, service interruptions or any other matters set out in the operating licence, and (b) in connection with an operating licence that authorises Water NSW to exercise functions with respect to a declared catchment area—to compile indicators of the direct impact of Water NSW's activities (including, but not limited to, the impact of energy used and waste generated) on the environment so as to provide information about its performance and enable reports to be prepared. Note— In the case where Water NSW has been granted more than one operating licence, section 11 (2) also requires each operating licence to specify the functions of Water NSW to which the licence relates and the areas or circumstances (or both) in which those functions may be exercised under the authority of that licence. (3) The terms and conditions of an operating licence are to make provision for the preparation of operational audits by IPART. (4) The terms and conditions of an operating licence may confer on Water NSW any specified functions of— (a) the Minister administering the Water Management Act 2000 under that Act or the Water Act 1912, or (b) the Ministerial Corporation under any Act or law. (5) A function is not to be conferred under subsection (4) unless the Minister administering the Water Management Act 2000 or the Premier provides his or her concurrence to the conferral of the function. (6) A function of the Minister referred to in subsection (4) (a) or of the Ministerial Corporation conferred on Water NSW under subsection (4) may also be exercised by the Minister or the Ministerial Corporation (as the case requires) despite that conferral. However, a function may be conferred exclusively on Water NSW if the Minister administering the Water Management Act 2000 or the Premier provides his or her concurrence to the exclusive conferral of the function. (7) The conferral of functions under subsection (4) has effect according to its tenor. 13 Amendment of operating licence (1) The Governor, on the recommendation of the portfolio Minister, may— (a) amend an operating licence (including by adding, altering or omitting functions authorised by the licence or areas or circumstances in which such functions may be exercised under the authority of the licence), or (b) substitute an operating licence, or (c) impose, amend or revoke conditions of the operating licence. (2) The portfolio Minister is to consult with Water NSW before making a recommendation to the Governor under subsection (1). 14 Term of operating licence (1) The term of an operating licence is to be for a maximum of 5 years, as determined by the Governor. (2) The Governor may renew an operating licence, subject to subsection (1). (3) An operating licence may be renewed even if its term has expired. 15 Area of operations of Water NSW (1) The area of operations of Water NSW is the whole of the State. (2) However, nothing in this Act authorises or requires Water NSW to exercise any of the following functions except as provided by this section— (a) a function that is conferred or imposed on the Sydney Water Corporation by or under the Sydney Water Act 1994 with respect to its area of operations, (b) a function that is conferred or imposed on the Hunter Water Corporation by or under the Hunter Water Act 1991 with respect to its area of operations under that Act, (c) a function that is conferred or imposed on a water supply authority by or under the Water Management Act 2000 with respect to the area of operations prescribed for it by regulations made under section 289 (1) of that Act. (3) Subsection (2) (c) does not limit the functions of Water NSW in its capacity as a water supply authority in relation to the Fish River water supply scheme. (4) Despite subsections (1) and (2), an operating licence may authorise Water NSW— (a) to carry out any of its functions outside of the State, or (b) to exercise a function referred to in subsection (2), but only with the agreement of the Corporation or water supply authority concerned (the relevant body). (5) If Water NSW is authorised by an operating licence to exercise any functions of the kind referred to in subsection (4) (b), Water NSW is to obtain the agreement of each relevant body in relation to the exercise of those functions. (6) Nothing in this section affects the area of operations of the Sydney Water Corporation or Hunter Water Corporation or any water supply authority. 16 Contravention of operating licence (1) If, in the opinion of the portfolio Minister, Water NSW contravenes an operating licence, the portfolio Minister may cause a notice to be served on Water NSW requiring it to rectify the contravention within a specified period. (2) If, in the opinion of the portfolio Minister, Water NSW contravenes an operating licence, and whether or not a notice has been served under subsection (1) or the period specified in the notice has ended, the Governor may direct that Water NSW is to pay a monetary penalty of an amount to be determined by the Governor. (3) The fact that the Governor has directed that action be taken under this section does not prevent the Governor directing that the same or other action under this section be taken if the contravention continues or a fresh contravention occurs. (4) An operating licence may make provision for advice to be provided to the portfolio Minister in connection with the exercise of the portfolio Minister's functions under this section. (5) A penalty imposed under this section may be recovered in any court of competent jurisdiction as if it were a debt due to the State. 17 Contravention of operating licence: action by IPART (1) IPART may impose a monetary penalty on Water NSW if Water NSW contravenes an operating licence. (2) IPART may, instead of imposing a monetary penalty, require Water NSW to take such action as IPART considers appropriate in the circumstances, including (for example) requiring the sending of information to customers or the publication of notices in newspapers. (3) IPART may not require action to be taken under subsection (2) by Water NSW if the cost of that action would exceed the monetary penalty that IPART could impose under this section on Water NSW. (4) If IPART requires information to be sent to a customer under subsection (2), Water NSW may satisfy that requirement by sending the information to the customer with the next account or bill to be sent to the customer by Water NSW or, if Water NSW is sending other information to that customer before the next account or bill, with that other information. (5) Action may be taken under this section only if Water NSW has knowingly contravened an operating licence. (6) The monetary penalty that IPART may impose under this section must not exceed $10,000 for the first day on which the contravention concerned occurs and a further $1,000 for each subsequent day (not exceeding 30 days) on which the contravention continues. (7) IPART must not take action under this section unless— (a) IPART has— (i) considered whether the contravention has been or is likely to be the subject of any other penalty or action or any claim for compensation, and is satisfied that it is nevertheless appropriate to take action under this section, and (ii) considered the action that Water NSW has taken or is likely to take in respect of the contravention and the cost to Water NSW in taking that action, and is satisfied that it is nevertheless appropriate to take action under this section, and (b) each of the following procedures have been followed— (i) notice of the proposed action has been given to Water NSW, (ii) Water NSW has been given a reasonable opportunity to make submissions with respect to the proposed action, (iii) IPART has given due consideration to any such submissions. (8) IPART is required to consider the seriousness of the contravention concerned in determining whether to impose a monetary penalty under this section. (9) IPART must not take action under this section in respect of a contravention if any action has already been taken under section 16 in respect of the contravention. (10) Nothing in this section affects any powers under section 16 in respect of a contravention, whether or not IPART has already taken action under this section in respect of the contravention. (11) A penalty imposed under this section may be recovered in any court of competent jurisdiction as if it were a debt due to the State. 18 Administrative review of certain decisions of IPART concerning operating licence (1) Water NSW, if aggrieved by a decision of IPART to take action under section 17 in relation to Water NSW, may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (2) Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply to such a decision of IPART. 19 Cancellation of operating licence (1) An operating licence of Water NSW may be cancelled only in the circumstances specified by this section. (2) The Governor may cancel an operating licence of Water NSW if Water NSW ceases, otherwise than as authorised by the operating licence, to carry out the functions of Water NSW to which the licence relates in accordance with the operating licence for any reason. (3) The Governor may cancel any or all of the operating licences of Water NSW if— (a) Water NSW— (i) is, in the opinion of the portfolio Minister, in material default in complying with any operating licence, viewed in terms of the operation of the operating licence as a whole, and (ii) has not, within the time specified by the portfolio Minister in a notice to Water NSW, either rectified the default or shown cause, to the satisfaction of the portfolio Minister, why the operating licence should not be cancelled, or (b) Water NSW has been convicted on more than 3 occasions within a period of 12 months of offences that are punishable by a fine of at least $10,000 or, if Water NSW were a natural person, imprisonment for 12 months or more. (4) A notice under section 16 (1) can also be regarded as a notice for the purposes of subsection (3) (a) (ii). (5) If an operating licence is cancelled under this section, the Governor may, by order published in the Gazette, transfer to the Ministerial Corporation, the State or a public or local authority (as specified in the order), from a date specified in the order, such of the assets and rights of Water NSW that are specified in the order and that, in the opinion of the portfolio Minister, are necessary to enable the Ministerial Corporation, the State or the public or local authority to exercise such of the functions exercisable (or formerly exercisable) by Water NSW as appear to be necessary in the public interest. (6) An order under this section may provide for— (a) the Ministerial Corporation, the State or a public or local authority to assume those liabilities of Water NSW that the Governor considers appropriate and specifies in the order, or (b) the Ministerial Corporation, the State or a public or local authority to pay the whole or any part of the liabilities of Water NSW. (7) Schedule 1 applies to any transfer of assets, rights or liabilities under this section. Division 5 Memoranda of understanding 20 Definition In this Division— regulatory agencies means— (a) the Environment Protection Authority and the Secretary of the Ministry of Health, and (b) the Chief Executive of the Office of Environment and Heritage, the Secretary of the Department, local councils, county councils, and any persons, bodies or agencies for the time being nominated by order of the portfolio Minister communicated to Water NSW. 21 Requirement to enter into certain memoranda of understanding (1) Water NSW is required to enter into memoranda of understanding respectively with the regulatory agencies referred to in paragraph (a) of the definition of regulatory agencies in section 20. The following subsections of this section apply in relation to such a memorandum of understanding, and do not apply to memoranda of understanding with other regulatory agencies. (2) A memorandum of understanding is to be of the nature referred to in an operating licence. (3) A memorandum of understanding is to be reviewed, and amended or replaced, at such times and in such circumstances as are agreed on between Water NSW and the regulatory agency concerned or as are determined by the portfolio Minister. (4) If Water NSW and a regulatory agency are not able to enter into, or agree on a term of, a memorandum of understanding, the memorandum is to be entered into in accordance with the procedures determined by the Premier or is taken to be entered into in such terms as are determined by the Premier. 22 Direction to enter into certain memoranda of understanding (1) The portfolio Minister may, from time to time, direct Water NSW to enter into memoranda of understanding with such regulatory agencies referred to in paragraph (b) of the definition of regulatory agencies in section 20 as the Minister determines. This section does not apply to a memorandum of understanding referred to in section 21. (2) The portfolio Minister may specify the matters to be dealt with in a memorandum of understanding and the period (not more than 6 months from the date of the direction) within which the memorandum is to be entered into. (3) A memorandum of understanding is to be reviewed, and amended or replaced, at such times and in such circumstances as are agreed on between Water NSW and the regulatory agency concerned or as are determined by the portfolio Minister. (4) If Water NSW and a regulatory agency are not able to enter into, or agree on a term of, a memorandum of understanding, the memorandum is to be entered into in accordance with the procedures determined by the Premier or is taken to be entered into in such terms as are determined by the Premier. 23 Public exhibition of memoranda of understanding (1) Water NSW must give notice of the preparation of each memorandum of understanding to which it is a party. (2) The notice is to be given in a manner that the regulatory agency concerned is satisfied is likely to bring the notice to the attention of members of the public in the area of operations of Water NSW and must— (a) specify the address of the place at which copies of the memorandum of understanding may be inspected, and (b) specify the address to which representations concerning the memorandum of understanding may be forwarded. (3) Any person may, within 30 days or such longer period as may be specified in the notice, make representations to Water NSW and to the regulatory agency concerned about the memorandum of understanding. (4) Water NSW and each regulatory agency must, on the expiration of the period referred to in subsection (3), and before entering into the memorandum of understanding, consider any representations made under this section. (5) Notice of the execution of a memorandum of understanding is to be published in the Gazette and in a manner that the regulatory agency concerned is satisfied is likely to bring the notice to the attention of members of the public in the area of operations of Water NSW within 14 days after the execution. (6) The requirements of this section apply to an amendment to a memorandum of understanding in the same way as they apply to a memorandum of understanding. Division 6 Arrangements for drawing water 24 Arrangements for drawing water from certain water storages and pipelines (1) This section applies only to— (a) water storages and pipelines of Water NSW that were water storages and pipelines of the Sydney Catchment Authority to which section 21A of the Sydney Water Catchment Management Act 1998 applied immediately before its repeal, and (b) water storages and pipelines of Water NSW (or water storages and pipelines of Water NSW of a kind) prescribed by the regulations. (2) Subject to its operating licences, Water NSW has control over all water in water storages or pipelines to which this section applies. (3) Water in these water storages or pipelines is available for supply by Water NSW. (4) Water NSW may enter into an arrangement with any person to permit that person to draw or take water from these water storages or pipelines. Division 7 Arrangements with Sydney Water Corporation 25 Arrangements with Sydney Water Corporation (1) Water NSW is required to enter into arrangements with the Sydney Water Corporation regarding the supply of water by Water NSW to the Sydney Water Corporation. (2) The matters with which the arrangements are to deal are to include the following— (a) the standard of quality of the water supplied, (b) the continuity of water supply, (c) the maintenance of adequate reserves of water by Water NSW, (d) subject to this Division, the cost to be paid by the Sydney Water Corporation for the supply of water to it. (3) The arrangements may be amended or replaced from time to time. (4) The Treasurer is to be consulted about the terms of the arrangements, including amendments and replacements, before their finalisation. (5) The terms of the arrangements, including amendments and replacements, have no effect unless or until approved by the portfolio Minister. (6) The arrangements are to be reviewed as required by— (a) the terms of the arrangements, or (b) the terms of an operating licence, or (c) the portfolio Minister. (7) The arrangements are to be amended or replaced at times specified by— (a) the terms of the arrangements, or (b) the terms of an operating licence, or (c) the portfolio Minister. (8) The provisions of section 23 (Public exhibition of memoranda of understanding) apply, with the necessary modifications, to arrangements under this section in the same way as they apply to memoranda of understanding. (9) Nothing in this Division limits the matters that may be included in an operating licence or limits the terms of an operating licence. 26 Negotiations (1) Water NSW and the Sydney Water Corporation are required to enter into negotiations for the purpose of entering into, amending or replacing the arrangements as and when required by or under this Division. (2) If it appears to the Premier that negotiations are unable to be finalised, the arrangements are to be entered into, amended or replaced in accordance with the procedures determined by the Premier or are taken to be entered into, amended or replaced in such terms as are determined by the Premier. 27 Role of IPART with respect to arrangements (1) An arrangement under this Division is not to be entered into, amended or replaced except after consultation with IPART and after IPART has provided a report on the proposed arrangement or amendment to the portfolio Minister, Water NSW and the Sydney Water Corporation. (2) In providing such a report, IPART is to take into consideration any public submissions made under the provisions applied by section 25 (8). (3) IPART may investigate the adequacy and operation of the arrangements under this Division at any time, and may provide a report on any aspect of the arrangements, or their adequacy or operation, to the portfolio Minister. (4) The portfolio Minister is to table the report (or cause it to be tabled) in both Houses of Parliament within one month after the Minister receives the report. (5) Without limiting the generality of any provisions of the Independent Pricing and Regulatory Tribunal Act 1992, the supply of water by Water NSW to the Sydney Water Corporation is capable of being declared to be a government monopoly service within the meaning of that Act. (6) The provisions of this Division and of the arrangements have effect subject to the Independent Pricing and Regulatory Tribunal Act 1992. Division 8 Transfer of assets, rights and liabilities 28 Transfer of specified assets, rights and liabilities (1) The portfolio Minister may, with the concurrence of the voting shareholders, by order in writing, transfer to Water NSW such of the assets, rights and liabilities of the Ministerial Corporation, the State or a public or local authority as are specified or referred to in the order. (2) The portfolio Minister may, with the concurrence of the voting shareholders, by order in writing, transfer to the Ministerial Corporation or to any other person or body on behalf of the State such of the assets, rights and liabilities of Water NSW, as are specified or referred to in the order. (3) The portfolio Minister is not to make an order under subsection (1) or (2) unless the relevant person or body from whom, or to whom, the assets, rights or liabilities are to be transferred has consented to the transfer. (4) The fee simple in land that comprises the bed of any river, lake or estuary is not to be transferred to Water NSW under this section unless the Minister administering the Crown Land Management Act 2016 has been consulted in relation to the transfer. (5) Subsection (4) does not prevent the transfer to Water NSW of the ownership of any works installed in or on the bed of any river, lake or estuary. (6) An order under this section may be made on such terms and conditions as are specified in the order. (7) Schedule 1 applies to any transfer of assets, rights or liabilities by an order under this section. (8) Section 20C of the State Owned Corporations Act 1989 does not apply to the transfer of assets, rights or liabilities to Water NSW. Division 9 Staff transfers 28A Transfer of departmental staff to Water NSW Note— This section operates concurrently with Part 6-3A of the Fair Work Act 2009 of the Commonwealth which provides that certain terms and conditions of employment of a State public sector employee are transferred when the employee is transferred to the employment of a national system employer such as Water NSW. (1) The Minister may, by order in writing, transfer to Water NSW any person employed in the Department who is designated by the Secretary of the Department to be a person required for the purposes of enabling Water NSW to exercise its functions (a transferred employee). (2) A transfer under this section does not require the consent of the transferred employee. (3) On the day specified in the order (the transfer day)— (a) the employment of the transferred employee in the Public Service is terminated, and (b) the transferred employee becomes an employee of Water NSW. (4) On and from the transfer day for a transferred employee— (a) the transferred employee is entitled to continue as a contributor, member or employee for the purposes of any superannuation scheme in respect of which the transferred employee was a contributor, member or employee (as an employee in the Public Service) immediately before the transfer day and remains so entitled subject to any variation to that entitlement made either by agreement or otherwise in accordance with law, and (b) Water NSW is taken to be an employer for the purposes of any superannuation scheme in respect of which the transferred employee continues as a contributor, member or employee pursuant to an entitlement under this section, and (c) the continuity of the transferred employee's contract of employment is taken not to have been broken by the transfer of employment, and service of the employee in the Public Service (including service deemed to be service with Water NSW) that is continuous service up to the time of transfer is taken for all purposes to be service with Water NSW, and (d) the transferred employee retains any rights to sick leave, annual leave or extended or long service leave accrued or accruing immediately before the transfer day (except accrued leave for which the employee has, on ceasing to be employed in the Public Service, been paid the monetary value in pursuance of any other entitlement of the employee). (5) A transferred employee is not entitled in respect of the same period of service to claim a benefit under this section and another law or instrument. (6) The Secretary of the Department may, in connection with the transfer of a transferred employee's employment under this section, give a certificate in writing as to the extent of the accrued rights to annual leave, sick leave or extended or long service leave that are retained by the employee under this section, and such a certificate is evidence of the matters certified. (7) In the event that Part 6-3A of the Fair Work Act 2009 of the Commonwealth does not apply to a transferred employee, Water NSW is nevertheless required to provide the transferred employee with the same entitlements to which the employee would have been entitled under that Part had it applied to the employee. (8) The following provisions apply in relation to the transfer of a transferred employee's employment under this section— (a) the transfer has effect despite the Government Sector Employment Act 2013, the Industrial Relations Act 1996 or any other law, contract or instrument under a law, (b) the termination of the employee's employment in the Public Service by operation of this section does not preserve, or give rise to, any entitlements or rights other than those provided for by the Fair Work Act 2009 of the Commonwealth and this section, (c) the transferred employee is not entitled to any payment or other benefit by reason only of having ceased to be an employee in the Public Service as a result of the transfer, (d) the Crown is not required to make any payment to the transferred employee in relation to the transferred employee's accrued rights in respect of annual leave, sick leave or extended or long service leave, (e) the transfer does not affect the transferred employee's appointment (if any) under section 390 of the Water Management Act 2000 as an authorised officer for the purposes of that Act. Part 3 Powers of Water NSW 29 Ownership of works (1) Water NSW is the owner of all works installed by, vested in or transferred to Water NSW in or on any land (including the bed of any river, lake or estuary) whether or not the land is owned by Water NSW. (2) Water NSW may, subject to this and any other Act or law and for purposes consistent with its objectives— (a) build and install works, and (b) operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that are necessary or appropriate to any of its works, and (c) sell, demolish or otherwise deal with any of its works. (3) Part 3 and section 91 (b) and (c) of the Public Works and Procurement Act 1912 do not apply in respect of works owned by Water NSW. (4) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900. 30 Acquisition of land for purposes of this Act (1) Water NSW may acquire land (including an interest in land) for the purposes of this Act. (2) Other purposes for which land may be acquired under this section include the purposes of a future sale, lease or disposal, that is, to enable Water NSW to exercise its functions in relation to land under this Act. (3) Land that Water NSW is authorised to acquire under this section may be acquired by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. (4) For the purposes of the Public Works and Procurement Act 1912— (a) an acquisition in accordance with this section is taken to be for an authorised work, and (b) Water NSW is, in relation to that work, taken to be the Constructing Authority, and (c) Part 3 and section 91 (b) and (c) of that Act do not apply in respect of that work. (5) Water NSW may not give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991 for the purposes of this or any other Act, without the approval of the portfolio Minister. (6) Any such acquisition is not void merely because it is expressed to be for the purposes of Water NSW or for the purposes of this Act. 31 Metering equipment functions (1) Conferral of functions Water NSW may, if an operating licence so provides, operate, replace, repair, maintain, remove, connect, disconnect or modify metering equipment that Water NSW does not own. (2) Water NSW may from time to time test any metering equipment that it owns or any other metering equipment in respect of which it exercises functions under this section. (3) The regulations may provide that Water NSW is, or is not, to exercise any of its functions with respect to the operation, replacement, repair, maintenance, removal, connection, disconnection or modification of metering equipment under section 29 or this section to the exclusion of any other person and may limit the exercise of any of those functions to— (a) specified water sources or classes of water sources, or (b) a specified area, or (c) specified access licences or approvals or classes of access licences or approvals for specified areas, or (d) specified works or classes of works. (4) Operation of sections The functions conferred by section 29 and this section in respect of metering equipment are in addition to any functions conferred on Water NSW under the Water Management Act 2000 or the Water Act 1912 in relation to water management works or other works. (5) The conferral of functions by section 29 and this section in respect of metering equipment, and any regulations under this section, have effect despite any other provision of the Water Management Act 2000 or the Water Act 1912. (6) A direction under section 326 of the Water Management Act 2000, or a condition of an access licence or approval under that Act, ceases to have effect during any period that the exercise of a function is conferred exclusively on Water NSW by or under section 29 or this section, if the direction or condition requires the exercise of, or relates to the exercise of, that function. (7) Subsections (5) and (6) do not apply to a direction given to Water NSW or an access licence or approval held by Water NSW. (8) Subsection (6) does not affect the operation of, or enforcement of, a direction under section 326 of the Water Management Act 2000 or a condition of an access licence or approval in relation to any period before the direction or condition ceased to have effect. (9) In this section, access licence and approval have the same meanings as in the Water Management Act 2000 and include an entitlement (within the meaning of clause 2 of Schedule 10 to that Act) that confers a corresponding authority. 32 Entry on land to read meters or carry out works (1) When entry permitted Water NSW may, by its employees and agents, enter and occupy land for any one or more of the following purposes— (a) to read any of its metering equipment (including metering equipment in respect of which Water NSW has functions because of section 31), (b) to operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that Water NSW considers are necessary or appropriate to any of its works, (c) to construct new works and, for these purposes, to carry out any work on, below or above the surface of the land, (d) to ascertain the character and condition of the land to enable Water NSW to operate, repair, replace, maintain, remove, extend, expand, connect, disconnect or improve, or do any other thing to, Water NSW's systems and services for the purposes of carrying out the terms and conditions of its operating licences, (e) if pollution of water is occurring in a declared catchment area or in water that is captured, stored, released or supplied by Water NSW—to find the source of the pollution and, for this purpose, to dig up and remove material from the land, (f) in exercise of any of Water NSW's functions— (i) to divert water from, or alter the course of, a stream, and (ii) to impound or take water on, in or under the surface of the land. (2) The power conferred by subsection (1) (a) is sufficient authority for an employee or agent to enter and occupy land (except an enclosed part occupied as a separate dwelling) during daylight unless the employee or agent is refused access by the lawful occupier of the land. (3) Water NSW may remove or use anything dug up or obtained in the exercise of its powers under this section. (4) Reasonable force may be used to enter land (but not a dwelling-house) under this section. (5) Giving of notice Water NSW must not exercise the powers conferred by subsection (1) (b), (c), (d), (e) or (f) unless— (a) reasonable notice in writing of its intention to do so has first been given to the landholder of the land, building or dwelling-house, or (b) it authorises the entry after forming the opinion that the giving of the notice would cause undue delay. (6) If the powers of entry under subsection (1) (b), (c), (d), (e) or (f) are exercised without notice being given or by force, Water NSW must, without delay, notify such persons as it considers appropriate of the action taken. (7) Other powers of entry Nothing in this section limits any powers of entry that Water NSW may have apart from this section (including, without limitation, any powers it may have under sections 296 and 297 of the Water Management Act 2000 in its capacity as the water supply authority for the Fish River water supply scheme or in any other capacity). 33 Power to break up roads (1) Water NSW may, on giving reasonable notice to persons likely to be affected and for the purpose of exercising its functions under this or any other Act, open and break up— (a) the soil and pavement of a public road or public reserve, and (b) any sewer, drain or tunnel in or under a public road or public reserve. (2) The statutory body having the control and management of a public road or public reserve may, as prescribed by the regulations, require Water NSW to comply with conditions in exercising its powers under subsection (1), including conditions for restoration of the surface and removal of rubbish. (3) If a public road or public reserve is damaged by a leakage from, or a bursting of, Water NSW's water main, the statutory body having the control and management of the public road or public reserve may require Water NSW to make good the damage without delay. (4) If Water NSW fails— (a) to comply with a condition in force under subsection (2), or (b) to comply with a requirement under subsection (3), the statutory body affected by the failure may remedy it and recover the cost of doing so in a court of competent jurisdiction as a debt owed to the statutory body by Water NSW. 34 Altering position of conduits (1) Water NSW may serve on a person a notice in writing that complies with subsection (2) if— (a) Water NSW, in order to exercise its functions, needs an alteration to be made in the position of a conduit owned by the person, and (b) the alteration would not permanently damage the conduit or adversely affect its operation. (2) A notice must— (a) specify the alteration needed, and (b) require the alteration to be made within a reasonable time stated in the notice, and (c) include an undertaking by Water NSW to pay the reasonable cost of the alteration. (3) If the alteration is not made as required by the notice, Water NSW may make the alteration in such a manner as not to damage the conduit permanently or adversely affect its operation on completion of the alteration. (4) Water NSW may, for the purposes of subsection (3), exercise any powers of the person on whom the notice was served, in addition to or instead of any powers of Water NSW. (5) Except as provided by subsection (4), this section does not confer on Water NSW or the owner of the conduit any additional powers of entry or powers to carry out works than would be available apart from this section. (6) In this section— conduit means anything that is in or under a public road (or any other land on which no building or other structure is located) and is used for the conveyance of a substance, energy or signals. 35 Water NSW may use water management works to generate hydro-electricity Water NSW may— (a) authorise devices for generating electricity from water released in the exercise of Water NSW's functions under this Act to be placed on or in any of its water management works, and (b) install and use devices placed on or in any of its water management works to generate and supply electricity. 36 Obstruction of water management works (1) If a person places a structure or other thing in or near any of the water management works of Water NSW in such a manner as to interfere with the work, Water NSW may— (a) demolish and remove the structure or other thing, and (b) repair the work, and (c) recover the cost of doing so in a court of competent jurisdiction as a debt owing to Water NSW by the person who placed the structure or other thing there. (2) Water NSW may apply for and obtain an injunction to prevent a structure or other thing being placed as referred to in subsection (1). (3) A person— (a) must not wilfully or negligently destroy, damage or interfere with any water management works of Water NSW, or (b) must not open up ground to expose any water management work of Water NSW without reasonable excuse, or the consent of Water NSW, and without giving Water NSW at least 2 days' written notice of intention to open the ground unless that requirement is waived by Water NSW. Maximum penalty— (a) in the case of a corporation—400 penalty units, or (b) in the case of an individual—200 penalty units. 37 Compensation by Water NSW for damage (1) Water NSW, in exercising its functions under this Part, is to do as little damage as practicable and is, subject to this Part, to compensate all persons who suffer damage by the exercise of its functions. (2) Compensation may be made by reinstatement, repair, construction of works or payment. (3) A claim for compensation— (a) is ineffective unless made in writing not later than 6 months after the damage was suffered, and (b) in the absence of agreement on the compensation, must be dealt with as if it were a claim for compensation for the acquisition of land for public purposes under the Public Works and Procurement Act 1912. 38 Compensation to Water NSW for damage (1) Without limiting section 36, a person who, without the consent of Water NSW, carries out any activity that causes destruction of, damage to or interference with any work owned by Water NSW in circumstances in which the person should have known that the destruction, damage or interference would result from the carrying out of the activity, is liable to compensate Water NSW for all loss or damage suffered by Water NSW as a result. (2) Water NSW is not entitled to compensation both under this section and another provision of this Act for the same destruction, damage or interference. (3) A reference in this section to a person extends to any person— (a) who caused the carrying out of the activity, or (b) by whose order or direction the activity was carried out, or (c) who aided, assisted, counselled or procured the carrying out of the activity. (4) Water NSW may proceed against a person for recovery of its loss or compensation for its damage under this section whether or not Water NSW has proceeded against the person principally responsible for the loss or damage or any other person involved in the carrying out of the activity that caused the loss or damage. 39 Water NSW may impose fees and charges (1) Water NSW may impose fees and charges on any person to whom Water NSW provides a service in the exercise of its functions, including any person to whom Water NSW makes water available. (2) Water NSW may impose different fees and charges according to specified factors or circumstances. (3) Any fee or charge imposed under this section is taken to be a debt due to Water NSW and is recoverable in a court of competent jurisdiction. (4) A fee or charge levied under this Act on the holder of an access licence (within the meaning of the Water Management Act 2000) and any costs awarded to Water NSW by a court in proceedings to recover the fee or charge are a charge on the access licence and may be registered in accordance with the Water Management Act 2000. (5) However, Water NSW may not impose a fee or charge under this section for the provision of any service whose cost is determined or regulated under any arrangement, operating licence, memorandum of understanding or other instrument under this Act. Note— For example, arrangements between Water NSW and the Sydney Water Corporation made under section 25 regarding the supply of water to the Sydney Water Corporation are required to make provision for the cost of the supply of such water (subject to the role of IPART under Division 7 of Part 2). Part 4 Declared catchment areas and special and controlled areas Division 1 Declared catchment areas 40 Declaration of declared catchment areas (1) The Governor may, by order published in the Gazette, declare an area of land specified in the order to be, or to be part of, a declared catchment area of Water NSW. (2) The Governor may, by the same order or by a subsequent order published in the Gazette, declare a specified part of a declared catchment area of Water NSW to be the inner catchment area or outer catchment area of the declared catchment area. (3) The Sydney catchment area must not be reduced in size, and an order revoking the declaration of the Sydney catchment area as a declared catchment area must not be made, unless authorised by an Act of Parliament. 41 Catchment health indicators (1) The Minister— (a) must appoint a public authority or other person to be the appointed person to carry out functions under this section in relation to the Sydney catchment area, and (b) may appoint a public authority or other person to be the appointed person to carry out functions under this section in relation to any other declared catchment area. (2) The appointed person must develop and approve catchment health indicators of the catchment health of the declared catchment area. (3) The appointed person must publish the approved catchment health indicators in the Gazette. (4) Those indicators may be amended or replaced in the same way as they were originally developed, approved and published. 42 Catchment audits (1) The Minister— (a) must appoint a public authority or other person to be the appointed auditor to carry out functions under this section in relation to the Sydney catchment area, and (b) may appoint a public authority or other person to be the appointed auditor to carry out functions under this section in relation any other declared catchment area. (2) The appointed auditor must— (a) conduct an au