Queensland: South-East Queensland Water (Distribution and Retail Restructuring) Act 2009 (Qld)

South-East Queensland Water (Distribution and Retail Restructuring) Act 2009 An Act to further restructure the water industry in south-east Queensland Chapter 1 Preliminary Part 1 Introduction 1 Short title This Act may be cited as the South-East Queensland Water (Distribution and Retail Restructuring) Act 2009. 2 Commencement (1) Sections 108 to 110 commence on the day after the date of assent of this Act. (2) Sections 111 and 112 commence on the day after the repeal of the Integrated Planning Act 1997 under the Sustainable Planning Act 2009. Part 2 Purposes and application of Act 3 Purposes of Act The purposes of this Act are to do the following for the SEQ region— (a) improve water supply coordination and management; (b) deliver improved and more efficient water services and wastewater services to customers; (c) improve the management of water and wastewater infrastructure. 4 Achievement of purposes (1) The purposes are achieved by— (a) continuing the SEQ region water industry restructure started under the 2007 restructuring Act; and (b) providing for the making of a customer water and wastewater code for the provision of water services and wastewater services to customers in the SEQ region. (2) This Act provides for the continued restructure by— (a) creating new integrated retail and distribution authorities (called 'distributor-retailers') to deliver the services to customers within a particular area for each (called its 'geographic area'); and (b) providing for the following to, subject to this Act, deliver the services to customers in their local government areas from 1 July 2012— (i) the Gold Coast City Council; (ii) the Logan City Council; (iii) the Redland City Council; and (c) providing for particular matters relating to distributor-retailers to be fixed by agreement with the local governments for their geographic area (called their 'participating local governments'); and (d) facilitating the transfer to distributor-retailers of the infrastructure and functions of their participating local governments as service providers for the services; and (e) providing for all distributor-retailers to become service providers on and from 1 July 2010; and (f) the inclusion of particular provisions about the performance of the functions of distributor-retailers as service providers. Part 3 Interpretation Division 1 Key definitions 5 Who are a distributor-retailer's participating local governments (1) A distributor-retailer's participating local governments are— (a) for the Northern SEQ Distributor-Retailer Authority—Sunshine Coast Regional Council, Noosa Shire Council and Moreton Bay City Council; and (b) for the Central SEQ Distributor-Retailer Authority—Brisbane City Council, Ipswich City Council, Scenic Rim Regional Council, Lockyer Valley Regional Council and Somerset Regional Council; and (c) for the Southern SEQ Distributor-Retailer Authority—Gold Coast City Council, Redland City Council and Logan City Council. (2) In a provision about a board, a reference to a participating local government is a reference to a participating local government under subsection (1) for the board's distributor-retailer. 6 What is a distributor-retailer's geographic area A distributor-retailer's geographic area is the area that consists of the local government areas of all of its participating local governments. Division 2 Dictionary 7 Dictionary The dictionary in the schedule defines particular words used in this Act. Division 3 Functions 7A References to functions In this Act— (a) a reference to a function includes a reference to a power or jurisdiction; and (b) a reference to performing a function includes a reference to exercising a power or jurisdiction. Chapter 2 New authorities for water distribution and retailing Part 1 Establishment, functions and powers 8 Establishment The following (each a distributor-retailer) are established— (a) the Northern SEQ Distributor-Retailer Authority; (b) the Central SEQ Distributor-Retailer Authority; (c) the Southern SEQ Distributor-Retailer Authority. Notes— 1 For the authority mentioned in paragraph (c), see chapter 3A (Replacement of Allconnex by councils), part 9 (Dissolution of Allconnex). 2 Under section 92AP, that authority will only have limited functions from 1 July 2012. 9 Legal status A distributor-retailer— (a) is not a body corporate; and (b) is not constituted by its board or participants; and (c) does not represent the State. 10 Expiry (1) A distributor-retailer expires at the end of 99 years after its establishment. (2) When a distributor-retailer expires— (a) its assets and liabilities become the assets and liabilities of its participants; and (b) the participants become the successor in law of the assets and liabilities rateably in accordance with their participation rights under the distributor-retailer's participation agreement. (3) A regulation may provide for any matter necessary or convenient to give effect to this section, including, for example, a provision about all or any of the following when a distributor-retailer expires (the former entity)— (a) the process concerning the distribution of its assets and liabilities; (b) the transfer of the employment of the former entity's employees and of their rights; (c) the application of instruments relating to the former entity; (d) the former entity's records; (e) the performance of the former entity's functions immediately before the expiry. 11 Functions (1) A distributor-retailer's primary functions are to do the following for its geographic area— (a) purchase water; (b) distribute water; (c) provide the following services (relevant services) to customers— (i) water services; (ii) wastewater services; (d) charge customers for relevant services; (e) manage customer enquiries, service requests and complaints; (f) on and from 1 July 2010— (i) perform functions under this Act and the Water Supply Act relating to trade waste and seepage water as a sewerage service provider; and Note— See section 53AA (Distributor-retailers become service providers). (ii) perform particular planning and development assessment functions under the Planning Act; (g) anything else likely to complement or enhance a function mentioned in paragraphs (a) to (f). (2) The primary functions are a distributor-retailer's geographic area functions. (3) A distributor-retailer may perform business or other functions it considers appropriate. 12 Powers (1) A distributor-retailer has all the powers of an individual and may, for example— (a) enter into contracts; and (b) acquire, hold, dispose of and deal with property; and (c) employ staff; and (d) appoint agents and attorneys; and (e) engage consultants; and (f) fix charges and other terms for services and other facilities it supplies; and (g) do anything else necessary or convenient to be done for its functions. (2) Without limiting subsection (1), a distributor-retailer has the powers given to it under an Act. (3) Despite subsections (1) and (2), a distributor-retailer's powers are subject to any limitations under the Acts mentioned in part 2. (4) However, an exercise of a power in contravention of a limitation or restriction under an Act does not invalidate or otherwise affect the exercise of the power. (5) A distributor-retailer may sue and be sued in the name it is given under section 8. 13 Functions A distributor-retailer may perform its functions inside or outside Queensland. Part 2 Application of particular other Acts to distributor-retailers 14Statutory Bodies Financial Arrangements Act 1982 (1) A distributor-retailer is a statutory body under the Statutory Bodies Financial Arrangements Act 1982 (the SBFA). (2) The SBFA, part 2B sets out the way in which a distributor-retailer's powers under this Act are affected by that Act. (3) Despite the SBFA, section 31(2) a distributor-retailer may operate an account with an overdraft facility without the Treasurer's approval under the SBFA. 15Financial Accountability Act 2009 (1) A distributor-retailer is a statutory body under the Financial Accountability Act 2009 (the FAA). (2) However, the provisions of a standard under the FAA about resource management do not apply to a distributor-retailer. Note— See the Financial and Performance Management Standard 2009, part 2, division 4 (General resource management). (3) For applying the FAA, a reference in that Act to a statutory body reporting to a Minister is taken to be a reference to the distributor-retailer reporting, in the way provided for under its participation agreement, to its participating local governments who are also participants in the distributor-retailer. (4) However, subsection (3) does not apply if the reporting is for the purpose of tabling in the Legislative Assembly. (5) Any operational or strategic planning requirements under a standard under the FAA are taken to have been complied with by a distributor-retailer if the distributor-retailer complies with its planning and reporting requirements. 16Crime and Corruption Act 2001 A distributor-retailer is a unit of public administration under the Crime and Corruption Act 2001. 17Right to Information Act 2009 A distributor-retailer is taken to be an agency under the Right to Information Act 2009. 17AInformation Privacy Act 2009 A distributor-retailer is taken to be an agency under the Information Privacy Act 2009. 18Land Act and Land Title Act For the Land Act and the Land Title Act, a distributor-retailer is taken to be a person authorised by law to provide a public utility service. 18APenalties and Sentences Act 1992 A distributor-retailer is taken to be a corporation for the Penalties and Sentences Act 1992. 18B Joint government activity power for LGA 2009 and CBA 2010 For LGA 2009, section 10 and CBA 2010, section 12, a reference to a local government is taken to include a reference to a distributor-retailer. 19 Deletion of commercially sensitive matters from annual report (1) This section applies if under another Act, an annual report relating to a distributor-retailer must be made public. (2) The board may ask the relevant Minister to delete from the copies of the annual report a matter that is of a commercially sensitive nature. (3) Despite the other Act, the Minister may delete the matter from the copies of the annual report that are laid before the Legislative Assembly or otherwise made public. (4) In this section— annual report includes any documents accompanying the report. Part 3 Participation agreements for distributor-retailers 20 Requirement for agreement (1) A distributor-retailer must, as soon as practicable after the date of assent of this Act, enter into an agreement (a participation agreement) with its participating local governments about the following matters concerning the distributor-retailer— (a) that the participating local governments have the right to participate in its profits; Note— For the distribution of assets and liabilities when the distributor-retailer expires, see section 10(2) (Expiry). (b) the way in which distributions of its profits are to be approved for section 43; (c) its internal management; (d) its corporate planning requirements; (e) its requirements about reporting to its participants; (f) the proportions in which the local governments are to receive tax equivalents the distributor-retailer pays under section 100; (g) any other matter concerning distributor-retailers prescribed under a regulation. (2) Rights mentioned in subsection (1)(a) are the participation rights in the distributor-retailer. (3) Those who hold the participation rights are the distributor-retailer's participants. (4) The requirements mentioned in subsection (1)(d) and (e) are the distributor-retailer's planning and reporting requirements. 21 Planning and reporting requirements (1) A distributor-retailer's participation agreement must— (a) require the distributor-retailer to prepare a plan about its future direction, goals and priorities for at least 5 years after the agreement takes effect; and (b) state the matters that the plan must provide for; and (c) ensure the distributor-retailer's participating local governments who are also participants in the distributor-retailer are given enough information to allow them to make an informed assessment of the distributor-retailer's operations; and (d) state the types of information that must be given to comply with paragraph (c). (2) Subsection (1) does not limit what may be provided for under the distributor-retailer's planning and reporting requirements. 22 Particular matters agreement may provide for Without limiting section 20(1), the participation agreement for a distributor-retailer may provide for all or any of the following— (a) the issuing, registration and transfer of its participation rights; Note— See however, section 29 (Ministerial approval required for change in particular matters). (b) classes of participants; (c) the obligations of participants in their capacity as participants; (d) the voting rights of participants; (e) the membership, powers and procedures of its board, including, for example, the term of office of its councillor-members or additional requirements to those under section 34 for their appointment or removal. 23 Minister's default power to make agreement (1) This section applies if a distributor-retailer and its participating local governments have not complied with section 20 by 30 April 2010. (2) The Minister may make a participation agreement for the distributor-retailer. Note— See also section 104 (Interim participation agreement). 24 When agreement takes effect (1) A participation agreement, other than one under section 23, takes effect only on the latest of the following days— (a) the day the Minister gives the parties to the agreement a notice that the Minister has approved it; (b) if the agreement states a later day of effect—the later day. (2) A participation agreement made under section 23 takes effect according to its terms. 25 Tabling of agreement (1) If the Minister approves or makes a participation agreement, the Minister must within 14 sitting days, table a copy of the agreement in the Legislative Assembly. (2) A failure to comply with subsection (1) does not stop the agreement taking effect. 26 Effect as a contract (1) When a participation agreement for a distributor-retailer takes effect, it has effect as a contract between all of the following entities from time to time— (a) the parties to the agreement; (b) all other entities who are or become participants in the distributor-retailer; (c) each member of the board. (2) The entities are taken to have agreed to observe and perform the contract so far as it applies to them. 27 Act prevails over agreement If a provision of a participation agreement is inconsistent with a provision of this Act, the provision of this Act prevails to the extent of the inconsistency. 28 Power to amend by agreement (1) Subject to section 29, a participation agreement for a distributor-retailer may be amended— (a) by agreement between all of its participants; or (b) if the participation agreement provides for another way in which it can be amended—in accordance with the other way. (2) However, a participation agreement for a distributor-retailer can not be amended to allow anyone other than a participating local government for the distributor-retailer to become a participant in it. (3) If a local government is a participant, it may agree to the amendment only if it has passed a resolution to that effect. (4) If a participation agreement is amended under subsection (1), the distributor-retailer must give the Minister a copy of the amended agreement as soon as practicable. 29 Ministerial approval required for change in particular matters (1) A change to a participation agreement about a restricted matter concerning a distributor-retailer has no effect unless the Minister has— (a) been given a copy of the proposed amended agreement; and (b) by notice to the distributor-retailer approved the change. (2) A person can not become a participant in a distributor-retailer unless— (a) the distributor-retailer's participation agreement or a change to the agreement approved under subsection (1), provides for the person to be, or to become, a participant; or (b) the Minister has approved the person to be a participant in the distributor-retailer and the person's proposed participation rights in it. (3) In this section— restricted matter, concerning a distributor-retailer, means— (a) the participants in the distributor-retailer, including— (i) who may become a participant; and (ii) any change in participants; and (iii) who may cease to be a participant; or (b) the participation rights in the distributor-retailer or how the rights may be transferred or otherwise dealt with; or (c) any provision of its participation agreement that provides for how it can be amended other than by agreement between all of the distributor-retailer's participants; or (d) its planning and reporting requirements. 30 Tabling of amended agreement (1) This section applies if the Minister— (a) under section 28, is given an amended participation agreement; or (b) gives an approval under section 29(1)(b). (2) The Minister must within 21 sitting days, table a copy of the amended agreement in the Legislative Assembly. (3) A failure to comply with subsection (2) does not stop the amended agreement from taking effect. 30A Publication of participation agreement etc. (1) This section applies if— (a) a distributor-retailer or local government enters into a participation agreement; or (b) the Minister makes a participation agreement for a distributor-retailer; or (c) a participation agreement entered into by a distributor-retailer or a local government or made by the Minister is amended. (2) The distributor-retailer or local government must, within 30 days after the agreement is entered into or the amendment takes effect, publish on its website— (a) a copy of the participation agreement or amendment; and (b) a brief summary of the agreement, or the agreement as amended, that complies with subsection (3). Maximum penalty—200 penalty units. (3) As a minimum, the summary must refer to each of the matters mentioned in section 20(1). Part 4 Boards of distributor-retailers Division 1 Establishment, membership and related matters 31 Requirement to have board Each distributor-retailer must have a board. 32 Role of boards (1) The board is responsible for the way the distributor-retailer performs its functions and exercises its powers. (2) The board's role includes— (a) deciding the strategies and the operational, administrative and financial policies to be followed by the distributor-retailer; and (b) ensuring the distributor-retailer performs its functions and exercises its powers in a proper, effective and efficient way; and (c) ensuring, so far as practicable, the distributor-retailer complies with its planning and reporting requirements. 33 Membership in general (1) A board is to consist of at least 5 members but can not consist of— (a) more than the following number of councillor-members— (i) if the distributor-retailer has more than 3 participating local governments—1 for each participating local government; (ii) otherwise—3; and (b) more councillor-members than independent members. (2) The members must be appointed under this division by the distributor-retailer's participants. (3) In this section— councillor-member means a member of the board who is a councillor of a participating local government for the distributor-retailer. independent member means a member of the board who is not a councillor-member. 34 Councillor-members (1) Unless the participation agreement provides otherwise, a board's councillor-members can not be— (a) appointed for a term of more than 4 years; or (b) appointed or reappointed if, at any time, they have already served a term of 4 years or terms totalling 4 years. Example— A is a councillor-member appointed for a 4-year term. A ceases to be a councillor of the relevant council after 3 of those years. B, another councillor of the council, is appointed to replace A for the rest of that term. B is re-elected as a councillor of the council. The participation agreement does not provide for more than a 4-year term for councillor-members. Therefore, B can only be reappointed for 3 more years. (2) A councillor-member's appointment ends if— (a) the person stops being a councillor of the relevant council; or (b) either— (i) all participating local governments have, by resolution, so agreed; or (ii) the ending happens under the participation agreement. (3) A vacancy under subsection (2) may be filled— (a) only by— (i) a councillor of the relevant council; or (ii) if the distributor-retailer's participation agreement provides for a councillor of a different relevant council to fill the vacancy—the other councillor; and (b) in the way provided for under the participation agreement. (4) A councillor-member's appointment is suspended during any period of suspension of the person as a councillor of the relevant council. 35 Independent members (1) The matters to which regard must be had in considering whether to appoint a person as an independent member include the person's previous experience and ability to— (a) contribute to the carrying out of the board's role under section 32; and (b) contribute to the strategic oversight of the distributor-retailer's functions; and (c) bring an independent judgment to bear on the board's decision-making. (2) An independent member— (a) holds office for the term stated in the person's appointment; and (b) is, if not disqualified, eligible for reappointment. (3) A person's appointment as an independent member ends if the person becomes disqualified. (4) In this section— disqualified means unable to be appointed because of section 36. 36 Disqualifications for independent member A person can not be appointed as an independent member if the person— (a) is a public service employee; or (b) is an employee of any local government in the SEQ region; or (c) is an insolvent under administration; or (d) has a conviction, other than a spent conviction, for an indictable offence; or (e) is a member of a board of— (i) another distributor-retailer; or (ii) the Queensland Bulk Water Supply Authority established under the 2007 restructuring Act. 36A Terms of membership (1) A board member holds office on the terms of appointment provided for under a participation agreement of the distributor-retailer, and subject to this Act. (2) A councillor-member can not receive, and the distributor-retailer can not confer, a benefit on a councillor-member— (a) by way of remuneration as the holder of that office; or (b) in connection with retirement from or other ending of the office. (3) However, the councillor-member may receive a benefit conferred on the member under LGA 2009 or CBA 2010. (4) For applying CBA 2010 under subsection (3), the relevant provisions of those Acts apply as if a reference to a corporate entity of the relevant council included a reference to a distributor-retailer. Note— For LGA 2009, see the Local Government (Operations) Regulation 2010, section 43. (5) An independent member may receive from a distributor-retailer, and a distributor-retailer may confer on an independent member, a benefit for the following only if it complies with the participation agreement— (a) remuneration as the holder of that office; (b) a matter for, or in connection with, retirement from or other ending of the office. (6) A purported benefit conferred or received that can not be made under this section is of no effect. (7) In this section— benefit means a payment made or an interest in property or other valuable consideration or benefit given or transferred. 36B Chairperson (1) A distributor-retailer must have an independent member as its chairperson. (2) The chairperson must be— (a) appointed in the way provided for under the distributor-retailer's participation agreement; or (b) if the participation agreement does not provide for how the appointment takes place—elected by the board. Division 2 Business 37 Conduct of business Subject to this division, a board may conduct its business, including its meetings, in the way it considers appropriate. 38 Time and place of meetings (1) Board meetings are to be held at the times and places the board decides. (2) The chairperson of a board may at any time call a meeting of the board. (3) The chairperson of a board must call a meeting of the board if asked in writing to do so by at least 2 members of the board. 39 Presiding at meetings (1) The chairperson of a board is to preside at all meetings of the board at which the chairperson is present. (2) If the chairperson is absent from a board meeting, including because of a vacancy in the office, a member chosen by the members present is to preside at the meeting. 40 Conduct of meetings (1) A quorum of a board must consist of at least 1 independent member. (2) A question at a board meeting is decided by a majority of the votes of the members present when the question is decided. (3) Each member present at the meeting has a vote on each question to be decided and if the votes are equal the member presiding also has a casting vote. (4) A board may hold meetings or allow members to take part in its meetings by using any technology that reasonably allows members to hear and take part in discussions as they happen. Example of use of technology— teleconferencing (5) A member who takes part in a meeting under subsection (4) is taken to be present at the meeting. (6) A resolution is validly made by a board even if it is not passed at a board meeting, if— (a) notice of the resolution is given under procedures approved by the board; and (b) a majority of the board members give written agreement to the resolution. 41 Minutes (1) A board must keep minutes of its meetings. (2) A board must keep a record of any resolutions made under section 40(6). 42 Disclosure of interests (1) This section applies to a member of a board (the interested member) if— (a) the member has an interest in an issue being considered or about to be considered by the board; and (b) the interest could conflict with the proper performance of the member's duties about the consideration of the issue. (2) After the relevant facts come to the interested member's knowledge, the member must disclose the nature of the interest to a board meeting. (3) Unless the board otherwise directs, the interested member must not— (a) be present when the board considers the issue; or (b) take part in a decision of the board about the issue. (4) The interested member must not be present when the board is considering whether to give a direction under subsection (3). (5) If there is another person who must under subsection (2) also disclose an interest in the issue, the other person must not— (a) be present when the board is considering whether to give a direction under subsection (3) about the interested member; or (b) take part in making the decision about giving the direction. (6) If— (a) because of this section a board member is not present at a board meeting for considering or deciding an issue or for considering or deciding whether to give a direction under subsection (3); and (b) there would be a quorum if the member were present; the remaining members present are a quorum of the board for considering or deciding the issue or for considering or deciding whether to give the direction at the meeting. (7) If there are no members who may remain present for considering or deciding an issue, the distributor-retailer's participants may, by each signing consent to a proposed resolution, consider and decide the issue. (8) A disclosure under subsection (2) must be recorded in the board's minutes. (9) To remove any doubt, it is declared that the fact that a relevant council has an interest in an issue does not, of itself, mean that the councillor-member for the council has an interest in the issue. Division 3 Financial management 43 Approval required for profit distribution A distributor-retailer must not distribute any of its profits unless the distribution has been approved in the way provided for under its participation agreement. Part 5 Chief executive officer 44 Appointment of chief executive officer (1) Each distributor-retailer must have a chief executive officer. (2) The chief executive officer is to be appointed by the board. (3) The chief executive officer is an employee of the distributor-retailer. 45 Term of appointment (1) Subject to this section, the chief executive officer holds office for the term stated in his or her contract of employment. (2) If otherwise qualified, the chief executive officer is eligible for reappointment. (3) The board may at any time end the appointment for any reason or none. (4) The ending of the appointment under subsection (3) does not affect any rights to compensation to which the chief executive officer is entitled under the contract of employment. (5) The chief executive officer may resign by giving a signed notice of resignation to the board at least the required period before the notice is to take effect. (6) The chief executive officer's appointment ends if he or she stops being qualified to be the chief executive officer. (7) In this section— required period means the period stated in the chief executive's contract of employment or otherwise agreed with the board. 46 Conditions of appointment For matters not provided for under this Act or stated in the contract of employment, the chief executive officer holds office on the terms of appointment decided by the board. 47 Qualifications for appointment A person can not be appointed or continue in office as the chief executive officer if the person— (a) is an insolvent under administration; or (b) has a conviction, other than a spent conviction, for an indictable offence; or (c) is not able to manage a corporation because of the Corporations Act, part 2D.6; or (d) is named in the register held by ASIC under the Corporations Act, section 1274AA. 48 Chief executive officer's responsibilities (1) A distributor-retailer's chief executive officer is— (a) responsible for managing its affairs under this Act, other relevant legislation and the board's policies; and (b) for the following provision or Acts, taken to be its principal officer— • the Evidence Act 1977, section 134A • the Right to Information Act 2009 • the Information Privacy Act 2009. (2) However, performance of the responsibility under subsection (1)(a) is subject to the board's directions. Part 6 Reserve powers of participating local governments 49 Group directions (1) A distributor-retailer's participating local governments may give it a written direction (a group direction) about the way the distributor-retailer is to perform its functions. (2) However, the direction may be given only if— (a) it has been decided to be given by— (i) all of the local governments; or (ii) the type of majority of them (the required majority) required under the distributor-retailer's participation agreement; and (b) all of the local governments or the required majority— (i) are satisfied the direction is necessary and in the public interest of the distributor-retailer's geographic area; and (ii) have asked the board to advise all of the local governments whether, in the board's opinion, complying with the direction is consistent with the performance of the distributor-retailer's functions. 49A Individual directions (1) This section applies for any participating local government (the council) of a distributor-retailer. (2) The council may give the distributor-retailer a written direction (an individual direction) about the way the distributor-retailer is to perform its functions relating to the council's local government area about any of the following— (a) charges mentioned in section 99BOB(b) and (c); (b) the distributor-retailer's annual capital works program under section 100B. (3) However, the council may give the direction only if— (a) it is satisfied the direction is necessary and in the public interest to the extent it relates to the local government area; and (b) it has given the board and other participating local governments of the distributor-retailer a notice— (i) stating the proposed direction; and (ii) asking the board for its written opinion about the direction within the required period; and (c) it has considered any written opinion of the board given to it within the required period; and (d) its compensation liability because of the effects of the direction has been agreed or decided under section 99BZD. (4) The opinion may include an amount claimed for, or particulars of, the compensation liability for the distributor-retailer or all or any of its other participating local governments. (5) In this section— required period means the following period after the giving of the notice— (a) generally—1 month; (b) if the distributor-retailer's participation agreement provides for another period for giving the opinion—the other period. 50 Publication of directions (1) The participating local governments that give a group direction, or the participating local government that gives an individual direction, must within 21 days after the direction is given ensure a copy of the direction is given to the Minister and is— (a) published on the local government's website; or (b) kept available for inspection by the public— (i) at the public offices of the local government; or (ii) on a notice board maintained by the local government in its local government area. (2) Also, each participating local government that gives the direction must ensure— (a) if a copy of the direction is published on a website under subsection (1)(a), the copy is not removed from the website while the direction is in effect; or (b) if a copy of the direction is kept available for inspection by the public under subsection (1)(b), the copy remains available for inspection by the public while the direction is in effect. 51 Compliance with directions (1) This section applies if a distributor-retailer is given a group direction or an individual direction. (2) The board must take reasonable steps to ensure the direction is complied with unless it is unlawful to do so, or complying with the direction in the way directed would constitute an offence against this Act or another Act. (3) Regard must be had to the direction in deciding, for this Act or any other relevant law, whether or not a board member has exercised an appropriate degree of care and diligence in discharging the member's duties. Part 7 Miscellaneous provisions 52 Authentication of documents A document made by a distributor-retailer is sufficiently made if it is signed by— (a) its chief executive officer; or (b) the chairperson of its board; or (c) another person authorised by its board. 52A Relationship between councillor-member functions and councillor functions While a councillor-member is acting in the person's capacity as a councillor-member, the member's responsibilities as a councillor under LGA 2009 or CBA 2010 do not apply. 53 Delegation (1) A distributor-retailer may delegate any of its functions to a member of its board, its chief executive officer or any of its appropriately qualified employees. (2) However, a function can not be delegated under subsection (1) to a person to whom a circumstance mentioned in section 47 applies. (3) A board may delegate any of its functions to— (a) a committee of members of the board; or (b) the distributor-retailer's chief executive officer. (4) The chief executive officer of a distributor-retailer may delegate his or her functions, including a function delegated to the chief executive officer, to an appropriately qualified employee of the distributor-retailer. Note— For general laws about delegation, see the Acts Interpretation Act 1954, section 27A. (5) Without limiting subsection (1), a distributor-retailer may delegate the following functions to its relevant participating local government— (a) functions under chapter 2C relating to the appointment of water connection officers; (b) functions under chapter 4C; (c) functions as a referral agency for a particular development application. (6) A relevant participating local government may subdelegate a function delegated to it under subsection (5) to an appropriately qualified officer or employee of the local government. (7) Without limiting subsection (4), the chief executive officer of a distributor-retailer may delegate his or her functions under sections 99BRBB, 99BRBC and 99BRBD to a relevant participating local government of the distributor-retailer. (8) A delegation of a chief executive's power to a participating local government may permit the subdelegation of the power to an appropriately qualified person. (9) In this section— building work see the Building Act 1975, section 5. particular development application, for a distributor-retailer, means a development application for carrying out building work for a building or structure on a lot that contains, or is adjacent to a lot that contains, the distributor-retailer's infrastructure. referral agency, for a development application, means a referral agency for the application under the Planning Act. relevant participating local government, for a function of a distributor-retailer, means the distributor-retailer's participating local government for the local government area in relation to which the function is performed or exercised. Chapter 2A General provisions for distributor-retailers as service providers Part 1 Provisions for distributor-retailers to become service providers Division 1 General provisions 53AA Distributor-retailers become service providers (1) On and from 1 July 2010 all distributor-retailers become service providers for their geographic area functions. (2) The Water Supply Act, section 20 does not apply to a distributor-retailer. (3) A distributor-retailer continues to be a service provider from 1 July 2010 and subject to the Water Supply Act. (4) A distributor-retailer must give the regulator the information mentioned in the Water Supply Act, section 12 about the distributor-retailer as a service provider as soon as practicable after 1 July 2010. 53AB Participating local governments cease being service providers On 1 July 2010, each distributor-retailer's participating local governments cease to be a service provider. 53AC Notice to regulator not required for transfer under transition document The Water Supply Act, sections 24 and 25 do not apply to a transfer under a transition document. 53AD Existing customers (1) This section applies to a person who, immediately before 1 July 2010, was a customer of any of a distributor-retailer's participating local governments. (2) On 1 July 2010 the person becomes a customer of the distributor-retailer. 53AE [Repealed] Division 2 Existing trade waste approvals 53AF Existing trade waste approvals (1) On and from July 2010 all trade waste approvals given by a distributor-retailer's participating local governments are taken to have been given by the distributor-retailer. (2) If before 1 July 2010— (a) a local government was required under the Water Supply Act, section 185(2) to give an approval holder a notice amending the holder's trade waste approval; and (b) the local government has not given that notice; the distributor must give the notice as soon as practicable after it becomes aware of the requirement. 53AG Power to amend existing trade waste approvals for particular purposes (1) This section applies for a trade waste approval that under section 53AF(1) is taken to have been given by a distributor-retailer (each an existing trade waste approval). (2) Subject to section 53AH, the distributor-retailer may amend the trade waste approval to ensure the consistency of all trade waste approvals given for its geographic area (a consistency amendment). (3) However, a consistency amendment can not be made after 30 June 2012. (4) The distributor-retailer may, by notice, also amend the trade waste approval to make any change necessary to reflect the change from the approval being given by it instead of a participating local government. 53AH Requirements for making consistency amendment (1) Before a distributor-retailer makes a consistency amendment of a trade waste approval, it must give the approval holder a show cause notice about the proposed amendment. (2) If, after considering any properly made submissions by the approval holder, the distributor-retailer is still satisfied the amendment should be made, it may make the amendment by notice to the approval holder. (3) Within 30 business days after making a decision under subsection (2), the distributor-retailer must give the approval holder an information notice about the decision. (4) If, after considering any properly made submissions by the approval holder, the distributor-retailer is not satisfied the amendment should be made, it must give the approval holder a notice about the decision. (5) A decision under subsection (2), takes effect on the later of the following— (a) the day the information notice is received by the approval holder; (b) the day stated in the notice. (6) In this section— show cause notice means a notice that complies with the Water Supply Act, section 463. Division 3 Provision of information 53AI Authorised exchange of information (1) A distributor-retailer and its participating local governments may exchange information with each other if the exchange is necessary or desirable for the distributor-retailer to perform its geographic area functions. (2) However, information can not be exchanged under subsection (1) after 1 July 2013. (3) This section is subject to the Information Privacy Act 2009 and the Right to Information Act 2009. Part 2 Application of particular Water Supply Act provisions to distributor-retailers Division 1 Preliminary 53AJ Purpose of pt 2 The purpose of this part is to provide for matters about the application of particular provisions of the Water Supply Act in relation to the carrying on of a water service or wastewater service by a distributor-retailer after 1 July 2010. 53AK Application of pt 2 This part does not limit or otherwise affect the application of the Water Supply Act to a distributor-retailer other than to the extent stated in division 2. Division 2 Application of provisions 53AL Provision about plans under the Water Supply Act —generally (1) On and from 1 July 2010, the following provisions of the Water Supply Act do not apply to a distributor-retailer— (a) sections 106 to 109, other than to the extent the sections provide for any matter about the distributor-retailer's drinking water quality management plan under that Act; (b) chapter 2, part 4, division 6. (2) The following provisions of the Water Supply Act do not apply to a distributor-retailer that has a water netserv plan— (a) chapter 2, part 4, divisions 1 and 2; (b) chapter 2, part 4, division 4, other than to the extent the division provides for any matter about the distributor-retailer's drinking water quality management plan under that Act. 53AM Provision about strategic asset management plan (1) This section applies to a distributor-retailer— (a) on 1 July 2010; and (b) until the day the distributor-retailer has a water netserv plan. (2) For the Water Supply Act, chapter 2, part 4, division 1, the existing strategic asset management plans for the registered services of a participating local government for the distributor-retailer are taken to be the distributor-retailer's approved strategic asset management plans. (3) The Water Supply Act, sections 73 and 74 do not apply to the distributor-retailer. (4) In this section— approved strategic asset management plan means an approved strategic asset management plan under the Water Supply Act. existing strategic asset management plan, for a registered service of a participating local government, means an approved strategic asset management plan of the local government in effect immediately before 1 July 2010. 53AN Provision about system leakage management plan (1) This section applies to a distributor-retailer— (a) on 1 July 2010; and (b) until the day the distributor-retailer has a water netserv plan. (2) For the Water Supply Act, chapter 2, part 4, division 2, the existing system leakage management plan for the water service of a participating local government for the distributor-retailer is taken to be the distributor-retailer's approved system leakage management plan. (3) The Water Supply Act, sections 82 and 87 do not apply to the distributor-retailer. (4) In this section— approved system leakage management plan means an approved system leakage management plan under the Water Supply Act. existing system leakage management plan, for a water service of a participating local government, means the approved system leakage management plan of the local government in effect immediately before 1 July 2010. 53AO Provision about drinking water service (1) This section applies to a distributor-retailer— (a) on 1 July 2010; and (b) until the earlier of the following— (i) 1 July 2011; (ii) the day the distributor-retailer has an approved drinking water quality management plan. (2) For the Water Supply Act, chapter 2, part 4, division 3, subdivision 1, the existing drinking water plan for a drinking water service of a participating local government for the distributor-retailer is taken to be the distributor-retailer's approved drinking water quality management plan. (3) In this section— approved drinking water quality management plan means an approved drinking water quality management plan under the Water Supply Act. existing drinking water plan, for a drinking water service of a participating local government, means the approved drinking water quality management plan of the local government in effect immediately before 1 July 2010. 53AP Provision about service areas—before water netserv plan is in effect (1) This section applies to a distributor-retailer until the day the distributor-retailer has a water netserv plan. (2) On 1 July 2010, the service area for a distributor-retailer as a service provider under the Water Supply Act, chapter 2, part 5, consists of the existing service areas of its participating local governments. (3) The distributor-retailer may amend the service area by adding an area to, or removing an area from, the service area. (4) If the distributor-retailer amends the service area, the distributor-retailer must publish a notice of the amendment in a newspaper circulating generally throughout its geographic area. (5) In this section— existing service area, of a participating local government, means the local government's service areas under the Water Supply Act immediately before 1 July 2010 that relate to the distributor-retailer's water service or wastewater service. 53AQ Provision about service areas—after water netserv plan is in effect (1) This section applies to a distributor-retailer on and from the day the distributor-retailer adopts under section 99BRAB a water netserv plan. (2) For a relevant provision— (a) the distributor-retailer's connection area is taken to be a service area, for both a retail water service and a sewerage service, within the meaning of the Water Supply Act; and (b) the distributor-retailer is taken to be the service provider for the service area, for both a retail water service and a sewerage service, within the meaning of the Water Supply Act. (3) In this section— relevant provision means the following provisions of the Water Supply Act— (a) section 161(9); (b) chapter 2, part 5, divisions 3 and 5; (c) schedule 3, definition retail water service. 53AR Provision about recycled water management plan (1) This section applies to a distributor-retailer on 1 July 2010. (2) For the Water Supply Act, chapter 3, part 2, the existing recycled water management plan for a recycled water scheme of a participating local government for the distributor-retailer is taken to be the distributor-retailer's approved recycled water management plan under that Act. (3) In this section— approved recycled water management plan means an approved recycled water management plan under the Water Supply Act. existing recycled water management plan, for a recycled water scheme of a participating local government, means the approved recycled water management plan of the local government in effect immediately before 1 July 2010. Part 3 Overdue charges for water services and wastewater services 53ARA [Repealed] 53ARB [Repealed] 53ARC [Repealed] 53ARD [Repealed] 53ARE [Repealed] 53ARF [Repealed] 53ARG [Repealed] 53ARH [Repealed] 53ARI [Repealed] 53AS Application of pt 3 (1) This part applies if a distributor-retailer is owed all or any of the following for premises— (a) a charge for water services or wastewater services provided by a distributor-retailer to the premises; (b) costs the distributor-retailer may recover for the premises under the Water Supply Act, section 165; Editor's note— Water Supply Act, section 165 (Recovering cost of giving access to registered service) (c) a charge under section 99BRAN, 99BRAV or 99BRCI; (d) a charge under a water infrastructure agreement under section 99BRCM; (e) a liability mentioned in section 77I that is an infrastructure charge— (i) owed to distributor-retailer under section 77J; or (ii) the benefit of which is, under section 77K, shared with a participating local government of the distributor-retailer. (2) The amount owed for a matter mentioned in subsection (1) is the overdue charge. (3) For a charge mentioned in subsection (1)(c) or (d), this part only applies if the entitlements under a water approval for the charge are exercised. 53AT Interest (1) The distributor-retailer may charge interest on the overdue charge. (2) The rate of the interest can not be more than the rate of interest local governments may charge for late payment of rates. (3) The interest must be calculated— (a) on daily rests, and as compound interest; or (b) in another way the distributor-retailer decides, if an equal or lower amount will be obtained. 53AU Overdue charge is owing by any owner of the premises (1) The overdue charge is payable by anyone who from time to time owns the premises. (2) Subsection (1) applies whether or not the owner received the benefit of the services. (3) Subsection (1) does not apply to any interest on the overdue charge. 53AV Charge on premises for overdue charge, CPI indexation and costs ordered (1) The total of the following is a charge on the premises (the distributor-retailer's charge)— (a) the overdue charge, as CPI indexed under section 53AW; (b) if, in a proceeding to recover the overdue charges, the court orders costs to be paid to distributor-retailer from the owner of the premises—the costs. (2) The distributor-retailer's charge does not include a power to sell the premises. (3) The distributor-retailer's charge does not secure any interest imposed under section 53AT. (4) This section does not limit any other remedy the distributor-retailer has to recover the amount. 53AW Quarterly CPI indexation for distributor-retailer's charge (1) For section 53AV the overdue charge is taken to be CPI indexed for all quarters during which all or any part of the overdue charge continues to be owing. (2) However, if the amount provided for under subsection (1) is an amount that is or includes a fraction of a dollar, the amount is taken to be the amount that is the nearest dollar, rounded up. (3) For subsection (1), payments relating to the overdue charge are taken to be made first in reduction of the overdue charge before any interest on it. (4) In this section— CPI indexed, for a quarter (the relevant quarter), means the addition of any amount that equates to any percentage increase in the CPI between the following quarters— (a) the relevant quarter; (b) the quarter immediately before the relevant quarter. 53AX Registration of charge and effect of registration (1) The distributor-retailer may register the distributor-retailer's charge by lodging the following documents with the registrar— (a) a request to register the charge, in the appropriate form; (b) a certificate signed by the chief executive officer that states the distributor-retailer's charge exists over the premises. (2) After the charge is registered over the premises, the charge has priority over any other encumbrances over the premises, other than encumbrances in favour of— (a) the State; or (b) a public entity. (3) If the amount that the charge secures is paid, the distributor-retailer must lodge the following documents with the registrar— (a) a request to release the charge over the premises, in the appropriate form; (b) a certificate signed by the chief executive officer stating the amount has been paid. Part 3A Personal details requirements 53AXA Application of pt 3A This part applies if an authorised person appointed by a distributor-retailer— (a) finds a person committing an infringement notice offence; or (b) finds a person in circumstances that lead the authorised person to reasonably suspect a person has just committed an infringement notice offence; or (c) has information that leads the authorised person to reasonably suspect a person has just committed an infringement notice offence. 53AXB Power to require name and residential address (1) The authorised person may require the person to state the person's name and residential address. (2) When making the requirement, the authorised person must give the person an offence warning. (3) The person must comply with the requirement unless the person has a reasonable excuse. Maximum penalty for subsection (3)—35 penalty units. 53AXC Power to require evidence of name or residential address (1) The authorised person may also require the person to give evidence of the correctness of the stated name or residential address if, in the circumstances, it would be reasonable to expect the person to— (a) be in possession of evidence of the correctness of the stated name or residential address; or (b) otherwise be able to give the evidence. (2) The person must comply with the requirement unless the person has a reasonable excuse. Maximum penalty for subsection (2)—35 penalty units. 53AXD Exception if infringement notice offence not proved The person does not commit an offence under this part if— (a) the requirement was made because the authorised person suspected the person has committed an infringement notice offence; and (b) the person is not proved to have committed the offence. Part 4 Miscellaneous provisions 53AY Authority to acquire land (1) The Acquisition of Land Act applies to a distributor-retailer as if— (a) it were a constructing authority; and (b) land mentioned in that Act included land held from the State for a lesser interest than freehold, other than a lease under the Land Act; and (c) the purposes for which land may be taken for the distributor-retailer are purposes relating to the provision of water services and wastewater services to customers in the distributor-retailer's geographic area. (2) For a lease under the Land Act, section 218 of that Act applies to a distributor-retailer as if it were a constructing authority. (3) A regulation may make provision about the acquisition of land by a distributor-retailer. 53AZ [Repealed] 53BA Ownership of water infrastructure that becomes part of land (1) Water infrastructure owned by a distributor-retailer remains its personal property despite— (a) it becoming part of any land; or (b) the sale or other disposal of the land of which it becomes a part. (2) This section applies despite— (a) an Act or law of a State; or (b) a contract, covenant or claim of right under a law of a State. (3) This section is subject to any retransfer of the water infrastructure under chapter 3A. Chapter 2B Water infrastructure provisions for distributor-retailers Part 1 Preliminary 53BB What is water infrastructure and water infrastructure work (1) Water infrastructure is infrastructure for a water service or wastewater service. (2) Water infrastructure work is the installation, operation, maintenance, repair, alteration or removal of water infrastructure. 53BC What is a public entity (1) A public entity is— (a) a local government; or (b) a government company or part of a government company; or (c) a State instrumentality, agency, authority or entity or a division, branch or other part of a State instrumentality, agency, authority or entity; or (d) a department or a division, branch or other part of a department; or (e) a GOC Act entity; or (f) a government entity prescribed under a regulation under the GOC Act, section 4. (2) In this section— GOC Act means the Government Owned Corporations Act 1993. GOC Act entity means an entity established under a regulation under the GOC Act. government company means a corporation incorporated under the Corporations Act all the stock or shares in the capital of which is or are beneficially owned by the State. 53BDPublicly-controlled places and their public entities (1) A publicly-controlled place is— (a) a State-controlled road; or (b) a place for which a public entity is responsible that— (i) the public is entitled to use; or (ii) is open to members of the public; or (iii) is used by the public, whether or not on payment of money. Example for paragraph (b)— a road (2) However, publicly-controlled place does not include any of the following under the Transport Infrastructure Act— (a) busway land; (b) light rail land; (c) a railway; (d) rail corridor land. Note— For provisions relevant to water infrastructure work for places mentioned in subsection (2), see the Transport Infrastructure Act, chapter 6 (Road transport infrastructure), chapter 9, part 4, divisions 4 (Public utility plant) and 5 (Use of busway or busway transport infrastructure) and chapter 10, part 4, divisions 3 (Public utility plant) and 4 (Use of light rail or light rail transport infrastructure). (3) The public entity for a publicly-controlled place is the public entity immediately and primarily responsible for the place. 53BE What is a road and a State-controlled road (1) A road is any of the following other than to the extent it is, or includes, a public thoroughfare easement— (a) an area of land dedicated to public use as a road; (b) an area that is open to or used by the public and is developed for, or has as 1 of its main uses, the driving or riding of motor vehicles; (c) a bridge, culvert, ferry, ford, tunnel or viaduct; (d) a pedestrian or bicycle path; (e) a part of an area, bridge, culvert, ferry, ford, tunnel, viaduct or path mentioned in paragraphs (a) to (d). (2) A State-controlled road is a road or land, or part of a road or land, declared under the Transport Infrastructure Act, section 24 to be a State-controlled road. 53BF What are road works (1) Road works are— (a) works done for— (i) constructing roads or things associated with roads; or (ii) maintaining roads or things associated with roads (other than public utility plant); or (iii) facilitating the operation of infrastructure relatin