Western Australia: Water Services Act 2012 (WA)

Western Australia Water Services Act 2012 Western Australia Water Services Act 2012 Contents Part 1 — Preliminary 1. Short title 2 2. Commencement 2 3. Terms used 2 4. Crown bound 8 Part 2 — Licensing of water service providers Division 1 — Licensing requirement 5. Requirement for licences 9 6. Licensing extends to statutory providers 9 7. Minister may grant exemptions 9 Division 2 — Licences 8. Classification of water services 10 9. Operating areas 11 10. Application for licence 11 11. Grant of licence 12 12. Conditions of licence 12 13. Renewal of licence 15 14. Duration of licence 16 15. Transfer of licence 16 16. Person who has provided water services becoming licensee 17 17. Amendment of licence — on initiative of Authority 17 18. Amendment or cancellation of licence — on application of licensee 18 19. Effect of water resource management plans 18 20. Other laws not affected 18 Division 3 — Duties of licensees — statutory licence conditions 21. Duty to provide services and do works 19 22. Provision of water services outside operating areas 20 23. Works holding arrangements 20 24. Asset management system 21 25. Operational audit 22 26. Compliance with codes of practice made by Minister 23 27. Compliance with code of conduct made by Authority 24 28. Code of conduct — consultative committee 25 29. Licensee must comply with duties under Act 26 30. Prescribed conditions of licence 26 Division 4 — Failure to comply with licence — enforcement 31. Failure to comply with licence 26 32. Right of licensee to make submissions 27 33. Exception — dangerous situations 28 Division 5 — Ending of licence and cessation of water services 34. Cancellation of licence for serious default 28 35. Provision of a water service ceasing — regulations may deal with consequences 30 36. Provision of a water service ceasing — duty to leave system in safe condition 30 Division 6 — Water service works and other assets 37. Licensee operating with works holding body 31 38. Regulations may deal with transfer of assets on land not held by asset holder 32 Division 7 — Inspectors 39. Terms used 33 40. Entry for inspection purposes 34 41. General powers for inspection purposes 34 42. Power to prohibit use etc. 35 43. Offences 36 Division 8 — Review of decisions 44. Review of certain decisions 37 Division 9 — General licensing provisions 45. Applications — additional information 39 46. Matters relevant to determination of public interest 39 47. Notice of and publication of certain decisions 39 48. Licences to be available for inspection 40 49. Regulations about public consultation 40 Part 3 — Last resort supply arrangements 50. Terms used 41 51. Designated areas 41 52. Authority to ensure supply plan in place for designated areas 41 53. Requirements for supply plans 42 54. How supply plan brought into operation 42 55. Appointment of supplier of last resort 43 56. Functions of supplier of last resort 44 57. Approval or determination of supply plan 44 58. Amendment of supply plan 45 59. Supplier of last resort to be treated as licensee 45 60. Duty to perform functions of supplier of last resort 45 61. Liability and recovery of costs of supplier of last resort 46 62. Regulations about last resort supply arrangements 47 Part 4 — Water services ombudsman scheme Division 1 — Preliminary 63. Terms used 49 64. Regulations about water services ombudsman scheme 49 Division 2 — Approval of water services ombudsman scheme 65. Authority may approve scheme 49 66. Requirements for scheme or amendment to be approved 50 67. Revocation of approval 51 Division 3 — Scheme operation 68. Customers etc. may have decision or complaint reviewed 52 69. Jurisdiction of courts and tribunals 52 Division 4 — Membership of approved scheme 70. Membership of approved scheme 53 Part 5 — Water services Division 1 — Terms used 71. Terms used 54 Division 2 — Provision of water services generally 72. Application of this Division in relation to certain agreements 57 73. Statutory entitlement to provision of water services 57 74. Terms and conditions of provision of water services 57 75. Agreements about provision of water services 59 76. Aspects of certain agreements binding on successors 60 77. Interruption of water services generally 61 78. Meters 62 79. Accuracy and testing of meters 62 Division 3 — Development and building control, and infrastructure contributions 80. Terms used 63 81. Application of this Division 63 82. Notification of and requirements as to building work 64 83. Satisfying requirements for additional water services 65 84. Ensuring water service works are done 68 85. Infrastructure contributions 68 86. Property in certain works 70 87. Review of certain decisions under or relating to this Division 70 Division 4 — Protection of works, fittings and fixtures 88. Interfering with water service works of licensee 72 89. Taking water without or contrary to approval 73 90. Construction etc. over or in vicinity of water service works of licensee 74 91. Requirement to use etc. approved fittings, fixtures and pipes 76 92. Requirement to maintain etc. fittings, fixtures and pipes 77 Division 5 — Water supply services 93. Approval required before connecting to water supply 79 94. No connection of additional water supply without approval 79 95. Disconnection or reduction in rate of flow etc. 80 96. Fire hydrants 81 97. Taking water from fire hydrants 83 Division 6 — Sewerage services Subdivision 1 — Sewer connections 98. Minister may require connection to sewerage works 83 99. Approval required before connecting to sewer 84 100. Common sewer connections 85 Subdivision 2 — Discharge of trade waste 101. Terms used 85 102. Discharge of trade waste without or contrary to licensee's approval 86 103. Approval of licensee 86 104. Discharge of trade waste not in accordance with approval 87 105. Failure to maintain fittings, fixtures and pipes 88 106. Compliance notices 89 107. Regulations relating to discharge of trade waste 90 Division 7 — Drainage services 108. Term used: drainage assets 90 109. Controlled drainage assets 91 110. Minister may require connection to drainage works 92 111. Approval required before connecting to drainage works 94 112. Requirement to maintain or modify drainage assets, etc. 94 113. Relationship of this Division to certain other Acts 96 Division 8 — Enforcement Subdivision 1 — Entry for compliance purposes 114. Term used: compliance purposes 96 115. Entry for compliance purposes 96 116. General powers for compliance purposes 97 117. Offences 98 Subdivision 2 — Compliance notices 118. Application of Subdivision 98 119. Compliance notices 99 120. Giving compliance notices 99 121. Licensee or Minister may remedy failure to comply 100 122. Review of decisions relating to giving compliance notices 102 Division 9 — Fees and charges for water services 123. Licensees may impose fees and charges for water services 104 124. Regulations may provide for water service charges 104 125. Supplying groups of dwellings 108 126. Water service charges payable despite change in ownership of land or liability to prosecution 108 127. Order for payment of water service charges 109 Division 10 — General provisions 128. Prohibition on dealings in land 110 129. Reading meters etc. and routine inspection and maintenance 111 130. Dangerous situations 112 131. Approval of licensee subject to conditions 113 Part 6 — Powers in relation to water service works Division 1 — Preliminary 132. Terms used 114 133. Major works 114 134. General works 115 135. Exempt works 116 Division 2 — Provision of water service works 136. Powers in respect of water service works 116 137. Exemption of water service works from certain planning laws 117 138. Surveys and testing work 117 139. Ancillary works powers 118 140. Entry for provision of works etc. 119 141. Special provisions applicable to road works 120 Division 3 — Major works, requirements for public notification and Ministerial authorisation 142. Prerequisites to provision of major works 120 143. Licensee to prepare plans and publish and give notice of major works 121 144. Objections and submissions 122 145. Licensee may amend proposal 123 146. Submission of proposal to Minister 123 147. Powers of Minister in respect of proposal 124 148. Certain objectors and submitters to be notified of authorisation 124 149. Certain alterations, extensions and additions to major works 125 Division 4 — General works, requirements for public notification and, in certain cases, for Ministerial authorisation 150. Prerequisites to provision of general works 126 151. Licensee to prepare plans and give notice of general works 126 152. Objections and submissions 128 153. Licensee may amend proposal 128 154. Submission of proposal to Minister 128 155. Powers of Minister in respect of proposal 129 Division 5 — Exempt works 156. No prerequisites under this Part 129 Division 6 — Deviation and modification 157. Term used: water service works 130 158. Plans may indicate possible deviation from line of works 130 159. General power to deviate by up to 20 m 130 160. Modification by agreement with owner and occupier 131 161. When Minister may authorise deviation or modification 131 Division 7 — Property in water service works 162. Property in water service works and things placed on land 132 163. Powers of licensee in respect of water service works that are part of land 133 Part 7 — Powers in relation to interests in land 164. Terms used 134 165. Power of public authority to grant certain interests 134 166. Taking of interest in land for purposes of licensee 134 167. Vesting of interest 135 168. Easements in gross 136 169. Subdivision of land — planning approval 136 170. Sale of land 136 Part 8 — Entry for performance of functions Division 1 — Preliminary 171. Terms used 137 172. Application of this Part 138 Division 2 — Entry for performance of functions 173. Entry with consent or under notice or warrant 138 174. Notice of entry 139 175. Rights of occupier of dwelling 140 176. When authorised person must leave etc. 142 177. Power to enter includes power to enter other places 142 178. Entry with vehicles and equipment 143 179. Assistance to exercise powers 143 180. Use of force 143 181. Actions of authorised persons and others 144 182. Injunction in support of power of entry 144 183. Complaints about exercise of powers 145 Division 3 — Warrants to enter 184. Term used: remote communication 145 185. Application for warrant 145 186. Contents of application 146 187. How application to be made 146 188. Issue of warrant 148 189. Contents of warrant 148 190. Execution of warrant 149 Part 9 — Legal proceedings Division 1 — Legal proceedings 191. Prosecutions — who may commence 150 192. Time for bringing prosecutions 150 193. Continuing offences — daily penalties 150 194. Injunctions to ensure compliance with this Act 151 195. Court's power to make ancillary orders on conviction 152 Division 2 — Liability of certain persons 196. Liability of officers for offence by body corporate 154 197. Liability of principal for acts of agent 154 198. Liability of employer for offences of employee 155 199. Conduct on behalf of bodies corporate and principals 156 Division 3 — Evidentiary provisions 200. Evidence of certain things relating to contraventions 157 201. Evidence of authorisation and enforcement matters 158 202. Evidence of scientific matters 159 203. Documentary and signed evidence 160 204. Evidence of ownership or occupancy 161 205. Evidence of documents and service 162 206. Provisions are in addition to Evidence Act 1906 163 Part 10 — Administration Division 1 — The Economic Regulation Authority 207. Functions of Authority 164 208. Authority's capacity to authorise or designate persons 164 Division 2 — Inspectors and compliance officers 209. Terms used 165 210. Designation of inspectors and compliance officers 165 211. Limitations on scope of authority of inspectors and compliance officers 166 Division 3 — General matters 212. Delegation by Minister 167 213. Delegation by CEO 168 214. Information sharing 169 215. Confidentiality of information 171 Part 11 — Miscellaneous 216. Relationship of this Act to Rights in Water and Irrigation Act 1914 and Health (Miscellaneous Provisions) Act 1911 173 217. Licences not personal property for the purposes of the Personal Property Securities Act 2009 (Commonwealth) 173 218. Liability of certain persons for damage caused in exercise of powers 173 219. Immunity from liability for certain official actions 174 220. Limitation of liability for certain actions 175 221. Infringement notices and the Criminal Procedure Act 2004 177 222. Regulations 178 223. Notes in the text 182 224. Review of Act 182 225. Transitional provisions 182 Schedule 1 — Transitional provisions Division 1 — Transitional provisions for the commencement of this Act Subdivision 1 — Preliminary 1. Terms used 183 2. New provisions that correspond to old provisions 183 3. Relationship of this Division to Water Corporations Act 1995 Schedule 5 Division 1 183 Subdivision 2 — Application of Interpretation Act 1984 4. Application of Interpretation Act 1984 184 Subdivision 3 — General provisions 5. Continuing effect of licences, exemptions, directions, determinations, notices etc. 184 6. Completion of things commenced before commencement day 185 7. Continuing effect of things done before commencement day 185 8. References to repealed Acts and old provisions 185 9. Relationship of this Subdivision to other transitional provisions 185 Subdivision 4 — Specific provisions 10. Licences and exemptions 186 11. Initial code of conduct under section 27 186 12. Initial water services ombudsman scheme 186 13. Water service works of licensees 187 14. Drainage works of the Water Corporation 188 15. Relationship of this Subdivision to transitional regulations 189 Subdivision 5 — Transitional regulations 16. Transitional regulations 189 Notes Compilation table 191 Uncommenced provisions table 192 Other notes 192 Defined terms Western Australia Water Services Act 2012 An Act relating to the provision of water services and the regulation of water service providers, and for related purposes. Part 1 — Preliminary 1. Short title This is the Water Services Act 2012. 2. Commencement This Act comes into operation as follows — (a) sections 1 and 2 — on the day on which this Act receives the Royal Assent; (b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions. 3. Terms used (1) In this Act, unless the contrary intention appears — area associated with a dwelling means — (a) if the dwelling is one of 2 or more dwellings in one building, the parts of the building and any area around the building that the occupiers of the dwellings use exclusively but in common with each other; or (b) otherwise, the area around the dwelling that is used exclusively by the occupier, such as a driveway, garden or yard; Authority means the Economic Regulation Authority established by the Economic Regulation Authority Act 2003 section 4; CEO means the chief executive officer of the Department; charge means an obligation to pay an amount, but does not include anything described under this Act as a fee; class, of water service, has a meaning affected by section 8; code of conduct means a code of conduct made under section 27; code of practice includes a code of practice made under section 26; compliance officer has the meaning given in section 71(1); conduit means a pipe placed on land, or an artificial channel or tunnel placed on or a part of land, for conveying water or wastewater, and associated fittings, fixtures and structures; Crown land has the meaning given in the Land Administration Act 1997 section 3(1); customer, of a licensee, means a person to whom water services are provided by the licensee or who is entitled to the provision of water services by the licensee, other than a person who is a member of the licensee; department has the meaning given in the Public Sector Management Act 1994 section 3(1); Department means the department principally assisting in the administration of this Act; drainage assets has the meaning given in section 108; drainage service means, subject to subsection (2), a service — (a) principally constituted by — (i) the management of the flow of stormwater, surface water or ground water by means of reticulated drainage assets; or (ii) the management of soil salinity by means of reticulated drainage assets; and (b) which may include the management of the quality of the water dealt with; dwelling means — (a) a building or structure, or part of a building or structure, that is ordinarily used for human habitation, except common property as defined in the Community Titles Act 2018 section 3(1) or the Strata Titles Act 1985 section 3(1); or (b) a mobile home, (whether or not it is uninhabited from time to time) and includes the area associated with the dwelling; exemption means an exemption granted under section 7; inspector has the meaning given in section 39; irrigation means any method of applying water to land for the purpose of agriculture or improvement of pasture; irrigation service means, subject to subsection (2), a service principally constituted by the provision of water for irrigation by means of reticulated conduits and other appropriate irrigation works; licence means a licence granted, transferred or renewed under Part 2 Division 2; licensee means the holder of a licence; member of a licensee means a member of a co‑operative, registered under the Co‑operatives Act 2009, that is a licensee; meter means a device for measuring or estimating the quantity or flow of liquid passing through the device; mobile home includes a mobile home that is permanently or semi‑permanently stationary in a single location; occupier, of land, means a person who is an occupier of the land within the meaning given in the Local Government Act 1995 section 1.4; operate, in relation to water service works, includes use; operating area, of a licence, means, for a class of water service authorised by the licence, the area or areas specified in the licence as the operating area or areas of the licence for that class of water service; owner, of land, means a person who is an owner of the land within the meaning given in the Local Government Act 1995 section 1.4; place means any land, building, structure or dwelling, or a part of any land, building, structure or dwelling; Planning Minister means the Minister responsible for the administration of the Planning and Development Act 2005; prescribed means prescribed by regulations made under this Act; prescribed fee means a fee, the amount of which, or the method for determining the amount of which, is prescribed; property connection has the meaning given in section 71(1); provide, in relation to water service works, includes carry out, undertake, construct, install, erect and fabricate; public authority means — (a) a Minister of the State; or (b) an agency, authority or instrumentality of the State; or (c) a body, whether incorporated or not, that is established or continued for a public purpose by or under a written law; or (d) a local government or regional local government; reasonably suspects has the meaning given in the Criminal Investigation Act 2006 section 4; road has the meaning given in the Land Administration Act 1997 section 3(1); sewerage service means, subject to subsection (2), a service principally constituted by the collection, treatment and disposal of wastewater by means of reticulated conduits and other appropriate sewerage works; specified, in relation to an instrument or document made under or referred to in this Act, means specified in that instrument or document; standard terms and conditions of service has the meaning given in section 71(1); statutory penalty has the meaning given in the Sentencing Act 1995 section 4(1); statutory water service charge has the meaning given in section 71(1); trade waste has the meaning given in section 101; Treasurer means the Treasurer of the State; wastewater means sewage, and does not include stormwater, surface water or ground water of a type that is ordinarily drained from land as part of the provision of a drainage service; water corporation means a water corporation established by or under the Water Corporations Act 1995 section 4; Water Corporation means the Water Corporation established by the Water Corporations Act 1995 section 4(1); Water Resources Minister means the Minister responsible for the administration of the Water Agencies (Powers) Act 1984; water service means a water supply, sewerage, irrigation or drainage service; water service charge has the meaning given in section 71(1); water service works includes — (a) water supply works, sewerage works, drainage assets and irrigation works; and (b) surveys, excavations, structures and buildings provided by or used or intended to be used by a licensee in the provision of any water service; and (c) plant, equipment and structures attached to or otherwise associated with the works and things referred to in paragraphs (a) and (b); and (d) in the case where the works or assets are a part of land — the land of which the works or assets are a part; Note for this definition: Works or assets that are a part of land include drains, swales and reservoirs. water service works of a licensee means water service works used by the licensee in the provision of water services and to which one of the following paragraphs apply — (a) the works are held by the licensee or for the licensee by another person under an agreement with the licensee; (b) the works are not held by or for the licensee but, under an agreement in relation to the works, the licensee can operate and maintain the works to the extent necessary for the licensee to comply with the licensee's obligations under the licence and this Act; (c) in the case of drainage assets that are not held as described in paragraph (a) — a declaration under section 109 that the assets are controlled by the licensee is in effect; (d) in the case of water service works that are a part of land and that are not held as described in paragraph (a) — the rights in relation to the works referred to in section 163(1)(b) are held by the licensee or for the licensee by another person under an agreement with the licensee, but does not include a property connection and anything connected to those works via the property connection other than a thing that is owned by the licensee; water supply service means, subject to subsection (2), a service principally constituted by the supply of water (whether or not potable) by means of reticulated conduits and other appropriate water supply works; works power means a power, whether conferred by this Act or not — (a) to provide works for, or in connection with, the provision of a water service authorised by a licence of the licensee; or (b) to maintain, alter, replace, discontinue or remove water service works; or (c) to do works under a specific power in Part 2 or 5 (for example, section 31(4)(b), 98(3) or 121), and includes any ancillary or incidental powers. (2) The regulations may provide that a prescribed kind of service (whether or not provided by reticulated conduits or reticulated drainage assets) is or is not a drainage service, irrigation service, sewerage service or water supply service. (3) In this Act, a reference to — (a) works may be read, where the context so requires, as a reference to any structure, building, plant, equipment or other thing that results from providing those works; and (b) works that are a part of land is a reference to works that are an intrinsic part of land (as compared to having been placed on land); and (c) a thing in land or on land is a reference to a thing that is in, on, over or under the land, or a part of the land (in the case of works that are a part of land); and (d) a thing placed on land is a reference to a thing that is placed in, on, over or under the land; and (e) a thing being placed on land is a reference to a thing being placed in, on, over or under the land. [Section 3 amended: No. 32 of 2018 s. 271.] 4. Crown bound This Act binds the Crown in right of the State and, so far as the legislative power of the State permits, the Crown in all its other capacities. Part 2 — Licensing of water service providers Division 1 — Licensing requirement 5. Requirement for licences (1) A person must not provide a water service except under a licence. Penalty: a fine of $30 000. Daily penalty: a fine of $1 500. (2) Subsection (1) does not apply to the provision of a water service by a body corporate to a related body corporate (within the meaning given in the Corporations Act 2001 (Commonwealth) section 9). 6. Licensing extends to statutory providers Section 5(1) applies, subject to section 7, to a person despite the fact that the person, in providing a water service, is performing a function that — (a) is authorised, or provided for, by or under a written law; or (b) has been approved under a written law. 7. Minister may grant exemptions (1) The Minister may exempt a person or class of person from the application of section 5(1) in respect of the provision of a water service in a specified area or areas of the State if satisfied that it would not be contrary to the public interest to do so. (2) An exemption must be in writing. (3) An exemption may be subject to conditions and is of no effect while a condition is not being complied with. (4) A licence that a person holds is of no effect to the extent to which the person is exempt from the application of section 5(1) in respect of the provision of the water service or services authorised by the licence. (5) The Minister may amend or revoke an exemption if satisfied that it would be in the public interest to do so. (6) The Minister must, as soon as is practicable after making a decision under subsection (1) or (5), publish notice of the decision in the prescribed manner with the prescribed information. (7) Reasons for a decision that the Minister makes to grant, amend or revoke, or to refuse to grant, amend or revoke, an exemption must be given to a person who applied for the grant, amendment or revocation, and any other person who requests those reasons. (8) The Minister may, at a particular time, refuse to consider an application for an exemption on the basis that the applicant has also made an application for a licence under section 10 that has not been dealt with by the Authority, if the application for the licence was made less than 90 days prior to that time. Division 2 — Licences 8. Classification of water services (1) Water services are classified as follows — (a) water supply services; (b) sewerage services; (c) irrigation services; (d) drainage services. (2) A licence may authorise the provision of one or more classes of water service. 9. Operating areas (1) For each class of water service authorised by a licence, the Authority must specify the area of the State that is the operating area of, or the areas of the State that are the operating areas of, the licence for the class of water service. (2) Areas need not be contiguous to be specified. (3) The specification of an area of the State as the operating area of a licence for a class of water service does not mean that the area cannot be included in an operating area of another licence for that class of water service. 10. Application for licence (1) An application for a licence must be — (a) made in a form approved by the Authority; and (b) accompanied by the prescribed fee. (2) Without limiting subsection (1)(a), an applicant for a licence must inform the Authority of — (a) the nature of the proposed water service or services that the applicant proposes to provide; and (b) for each class of water service that the applicant proposes to provide — (i) the area or areas of the State in which it is proposed to provide the service; and (ii) the methods or principles that the applicant proposes to apply in the provision of the service; and (iii) the nature of the water service works to be used in the provision of the service; and (iv) the standard terms and conditions for the provision of the service; and (v) the standard customer contracts (if any) for the provision of the service. 11. Grant of licence (1) The Authority must grant a licence authorising the provision of one or more classes of water service if satisfied that — (a) the applicant — (i) has, and is likely to retain, for each class of water service, the financial and technical ability to provide the service in the operating area or areas to be specified for the service; or (ii) will acquire within a reasonable time after the grant, and is then likely to retain, that ability; and (b) it would not be contrary to the public interest to do so. (2) For each class of water service authorised by a licence, the licence authorises the provision of the service — (a) in the operating area or areas of the licence specified for the service; and (b) outside of the operating area or areas, unless the licence provides otherwise. (3) The Authority may specify in a licence water service works that are to be provided, operated or maintained for the provision of the water service authorised by the licence. (4) The Authority must take all reasonable steps to make a decision in respect of an application for the grant of a licence within 90 days after the application is made. 12. Conditions of licence (1) A licence may be subject to conditions which, without limiting that, may deal with the following — (a) the quality and performance standards to be met by the licensee in the provision of a water service authorised by the licence; (b) the community service obligations to be discharged by the licensee, that is, obligations that are not commercially justifiable; (c) the licensee complying with specified standards or codes of practice, with specified modifications, other than a code of practice made under section 26; (d) standard terms and conditions for the provision of a water service by the licensee; (e) standard customer contracts for the provision of a water service by the licensee, including requiring the licensee to offer to enter into standard customer contracts with specified classes of person; (f) the capacity of the licensee to enter into agreements that vary or displace standard terms and conditions of service, standard customer contracts or statutory water service charges; (g) the capacity of the licensee to cut off or restrict the rate of flow of the supply of water to land, including the matters that the licensee must take into account before doing so; (h) the metering of water services by the licensee including — (i) the provision, operation and maintenance of metering equipment; and (ii) ownership of and access to metering data; (i) the transfer of customers to or from the licensee; (j) the exercise of powers of entry by persons authorised by the licensee, including by restricting the exercise of such powers; (k) the giving of compliance notices by the licensee, including by restricting the giving of such notices; (l) methods or principles to be applied by the licensee in the preparation of accounts for customers; (m) the giving of encumbrances over property of the licensee, including by making that subject to the approval of the Authority; (n) the disposal or transfer of property, rights or liabilities of the licensee either during the currency of the licence or on or after its expiration or cancellation, including by prohibiting the disposal or transfer; (o) the imposition of obligations on the licensee with respect to public authorities and other licensees; (p) planning for the future provision of water services, including planning for the development of future water sources; (q) the licensee developing and implementing programmes for the conservation and efficient use of water, including in relation to the use of water by customers of the licensee; (r) the provision of information to customers; (s) the licensee giving the Authority information relevant to the Authority's functions under this Act. (2) The conditions of a licence under subsection (1) have no effect to the extent to which they are inconsistent with any other conditions to which the licence is subject under this Act. (3) A condition of a licence held by a public authority established by or under a written law has no effect to the extent to which it deals with one or more of the following matters — (a) what business activities the licensee undertakes; (b) the range of functions that the licensee may perform; (c) the community service obligations to be discharged by the licensee; (d) the disposal or transfer of property of the licensee. (4) A condition of a licence held by a public authority established by or under a written law that deals with the preparation of accounts has no effect to the extent to which it is inconsistent with that written law. (5) A condition on a licence under subsection (1)(n) continues, after the licence ceases to have effect, to apply to the person who was the licensee and a failure to comply with such a condition may be dealt with under this Act as if the person were a licensee and the condition were a condition of a licence held by the person. 13. Renewal of licence (1) An application for the renewal of a licence must be — (a) made before the expiry of the licence; and (b) made in a form approved by the Authority; and (c) accompanied by the prescribed fee. (2) The Authority may renew a licence if the Authority is satisfied that — (a) the applicant has, and is likely to retain, for each class of water service to be authorised by the licence, the financial and technical ability to provide the service in the operating area or areas to be specified for the service; and (b) it would not be contrary to the public interest to do so. (3) The Authority must take all reasonable steps to make a decision in respect of an application for the renewal of a licence within 90 days after the application is made. (4) If — (a) an application for the renewal of a licence is made; and (b) the licence subsequently expires before the Authority makes a decision whether or not to renew the licence, the licence is to be taken to continue, under this subsection, until the Authority makes a decision whether or not to renew the licence. 14. Duration of licence A licence, whether granted or renewed, is for the period specified in it, which cannot be for more than 25 years. 15. Transfer of licence (1) A licence cannot be transferred except — (a) by the Authority; or (b) with the approval of the Authority. (2) The Authority may transfer or approve of the transfer of a licence if satisfied that — (a) the person to whom the licence is to be transferred (the transferee) — (i) has, and is likely to retain, for each class of water service authorised by the licence, the financial and technical ability to provide the service in the operating area or areas of the licence specified for the service; or (ii) will acquire within a reasonable time after the transfer, and is then likely to retain, that ability; and (b) it would not be contrary to the public interest to do so. (3) The Authority must not transfer a licence unless — (a) the transferee agrees to the transfer; and (b) if practicable — the licensee agrees to the transfer. (4) An application for the approval of the transfer of a licence must be — (a) made by the transferee in a form approved by the Authority; and (b) if practicable — accompanied by the licensee's written consent to the transfer of the licence; and (c) accompanied by the prescribed fee. (5) The approval of a transfer of a licence may be subject to conditions. (6) The transfer of a licence does not alter the duration of the licence, but the Authority may, subject to section 14, extend its duration. (7) The Authority must take all reasonable steps to make a decision in respect of an application for the approval of the transfer of a licence within 90 days after the application is made. 16. Person who has provided water services becoming licensee (1) The regulations may deal with the consequences of a person who has provided water service works as part of providing a water service other than under a licence becoming a licensee in respect of the provision of that service, including by — (a) providing for the transfer of water service works, or rights in relation to water service works, used by the person in the provision of the water service to the person, or to another person in accordance with an agreement that complies with section 23(1)(b); and (b) providing for transitional periods, during which specified provisions of this Act do not apply to the person or apply in a modified way, that allow for the person to bring the person's operations into compliance with this Act. (2) Regulations made for the purposes of this section may deal with the same sorts of matters as those that may be dealt with by regulations made for the purposes of section 38. 17. Amendment of licence — on initiative of Authority (1) The Authority may, on its own initiative, amend a licence, if satisfied that it would not be contrary to the public interest to do so. (2) The Authority cannot amend a term or condition of a licence that was not determined by the Authority. (3) If the licence specifies a procedure to be followed in amending it, the amendment must be made in accordance with that procedure unless the Authority and the licensee agree otherwise. (4) An amendment takes effect 14 days after the licensee has been notified of the amendment unless — (a) a longer period is specified by the Authority or provided by the procedure referred to in subsection (3); or (b) a shorter period is agreed to by the Authority and the licensee. 18. Amendment or cancellation of licence — on application of licensee (1) A licensee may apply to the Authority at any time for the amendment or cancellation of a licence held by the licensee. (2) The Authority may amend or cancel the licence in accordance with the application if satisfied that it would not be contrary to the public interest to do so. (3) The Authority cannot amend a term or condition of a licence that was not determined by the Authority. (4) If the licence specifies a procedure to be followed in amending it, the amendment must be made in accordance with that procedure unless the Authority and the licensee agree otherwise. 19. Effect of water resource management plans A decision of the Authority under this Part is of no effect to the extent to which it is inconsistent with any relevant water resource management plans (however described) made under a written law and prescribed for the purposes of this section. 20. Other laws not affected The holding of a licence does not affect the licensee's obligation to comply with any other written law in relation to the matters covered by the licence. Division 3 — Duties of licensees — statutory licence conditions 21. Duty to provide services and do works (1) It is a condition of every licence that the licensee — (a) must provide a water service authorised by the licence to persons entitled to the service under this Act, except to the extent otherwise provided for by this Act; and (b) if requested to provide a water service authorised by the licence to persons not covered by paragraph (a) but within the operating area or areas of the licence specified for the service — must offer to provide the service on reasonable terms, unless provision of the service is not financially viable or is otherwise not practicable; and (c) must provide, operate and maintain the water service works specified in the licence for the purposes of section 11(3). Note for this subsection: Section 73 provides for certain entitlements to the provision of water services. (2) A licensee may refuse to provide, or may suspend the provision of, a water service to a person entitled to the service under this Act while the person — (a) unreasonably refuses to comply with a requirement of the licensee relating to the provision of the service; or (b) unreasonably refuses to enter into an agreement with the licensee about the provision of the service; or (c) refuses to comply with a prescribed requirement relating to the provision of the service. (3) A licensee may refuse to provide a water service to a person described in subsection (1)(b) while the person — (a) unreasonably refuses to comply with a requirement of the licensee relating to the provision of the service; or (b) unreasonably refuses to enter into an agreement with the licensee about the provision of the service; or (c) refuses to comply with a prescribed requirement relating to the provision of the service. (4) In relation to a person described in subsection (1)(b), the licensee may suspend the provision of the water service in accordance with the terms and conditions under which the service is provided. (5) A licensee's capacity to refuse to provide, or suspend the provision of, a water supply or sewerage service under this section is subject to any restriction on that capacity in the terms and conditions of the licence authorising the provision of the service. 22. Provision of water services outside operating areas (1) It is a condition of every licence that, if the licensee provides a service outside of the operating area or areas of the licence specified for the service, the licensee must notify the Authority as soon as is practicable before commencing to provide the service. (2) The licence may provide alternative notification conditions. 23. Works holding arrangements (1) It is a condition of every licence that all water service works used by the licensee in the provision of a water service or services authorised by the licence — (a) are held by the licensee; or (b) are held for the licensee by another person under an agreement that ensures that the licensee can operate and maintain the works to the extent necessary for the licensee to comply with the licensee's obligations under the licence and this Act; or (c) in the case of water service works that are not held by or for the licensee — are covered by an agreement in relation to the works under which, the licensee can operate and maintain the works to the extent necessary for the licensee to comply with the licensee's obligations under the licence and this Act; or (d) in the case of drainage assets that are not held as described in paragraph (a), (b) or (c) — (i) are covered by a declaration under section 109 that the assets are controlled by the licensee; or (ii) are accessible to the licensee; or (e) in the case of water service works that are a part of land and that are not held as described in paragraph (a) or (b) — are accessible to the licensee; or (f) are held or accessible in accordance with the regulations. (2) Subsection (1) does not apply to a property connection and anything connected to the works via the property connection other than a thing that is owned by the licensee. (3) For the purposes of subsection (1), works or assets are accessible to a licensee if the licensee has access to the works or assets for the purposes of operating and maintaining the works or assets to the extent necessary for the licensee to comply with the licensee's obligations under this Act. 24. Asset management system (1) It is a condition of every licence that the licensee must — (a) provide for an asset management system; and (b) give details of the system and any changes to it to the Authority; and (c) at least once in every period of 24 months (or any longer period that the Authority allows), provide the Authority with a report, by an independent expert engaged by the Authority, as to the effectiveness of the system. (2) An asset management system must include the measures to be taken by the licensee for — (a) the proper maintenance of the water service works of the licensee; and (b) the provision and operation of the water service works specified in the licence and of other water service works necessary for the provision of the water service or services authorised by the licence. (3) The Authority must consult with the licensee before engaging an independent expert for the purposes of subsection (1)(c). (4) The Authority may recover its reasonable costs and expenses arising from the engagement and remuneration of an independent expert under subsection (1)(c) from the licensee, and may seek an order for the recovery of those costs and expenses in a court of competent jurisdiction. (5) The regulations may deal with the Authority reporting to the Minister in relation to reports by experts. 25. Operational audit (1) It is a condition of every licence that the licensee must, at least once in every period of 24 months (or any longer period that the Authority allows), provide the Authority with an operational audit conducted by an independent expert appointed by the Authority. (2) An operational audit is an assessment of — (a) the effectiveness of measures taken by the licensee to meet the quality and performance standards required by the licence in relation to the provision of the water service or services authorised by the licence; and (b) any other aspects of the provision of the water service or services that are nominated by the Authority in consultation with the licensee. (3) The Authority must consult with the licensee as to the appointment of an independent expert under subsection (1). (4) The Authority may recover its reasonable costs and expenses arising from the appointment and remuneration of an independent expert under subsection (1) from the licensee, and may seek an order for the recovery of those costs and expenses in a court of competent jurisdiction. (5) The regulations may deal with the Authority reporting to the Minister in relation to audits. 26. Compliance with codes of practice made by Minister (1) The Minister may make codes of practice, and amend or revoke them from time to time. (2) A code of practice may deal with any matter listed in a paragraph of section 12(1) (except in paragraph (s)) or any prescribed matter. (3) It is a condition of every licence that the licensee must comply with each code of practice made under this section, as in force from time to time, to the extent to which it applies to the licensee. (4) A code of practice may provide that if a licensee fails to meet a standard, the licensee must pay a specified amount to any person affected by the failure who comes within a specified description. (5) The Interpretation Act 1984 applies to, and to the making of, a code of practice as if it were subsidiary legislation and, for the purposes of section 42 of that Act, as if it were regulations. (6) Section 222(3) to (6) applies in relation to the making of a code of practice as if those provisions referred to a code of practice. (7) A provision of a code of practice is of no effect to the extent to which it is inconsistent with a provision of this Act or another written law. (8) The Minister's capacity to make a code of practice dealing with a matter does not, of itself, limit the Authority's capacity to — (a) impose conditions on a licence relating to the matter; or (b) make a code of conduct relating to the matter. (9) Before making a code of practice, the Minister must — (a) consult with each licensee to whom the code of practice will apply; and (b) undertake any other consultation required in the regulations. (10) The Minister must publish each code of practice in accordance with the requirements in the regulations. (11) The Minister must carry out a review of the operation and effectiveness of each code of practice at least once every 5 years. 27. Compliance with code of conduct made by Authority (1) The Authority may, in consultation with the consultative committee, make a code of conduct, and amend or replace it from time to time. (2) Before making a code of conduct, the Authority must endeavour to consult with each licensee that does not have a representative on the committee. (3) The purposes of the code of conduct are to deal with the conduct of licensees in relation to customers and potential customers and, without limiting that, the code may deal with the following — (a) the marketing of water services; (b) the connection of water services to land; (c) the metering of water services; (d) the billing and payment for water services; (e) the provision of water services to customers in financial hardship; (f) the suspension of the provision of water services; (g) the provision of information to customers and others about water services; (h) complaints procedures. (4) It is a condition of every licence that the licensee must comply with the code of conduct, as in force from time to time, to the extent to which — (a) it applies to the licensee; and (b) it is not inconsistent with the terms and conditions of the licence. (5) Section 26(4) to (7) applies to, and to the making of, the code of conduct as if those provisions referred to the code of conduct. (6) The Authority must publish the code in accordance with the requirements in the regulations. (7) The Authority must carry out a review of the operation and effectiveness of the code of conduct at least once every 5 years. 28. Code of conduct — consultative committee (1) For the purposes of section 27, the Authority is to establish a committee (the consultative committee) to advise it on matters relating to the code of conduct. (2) The Authority — (a) must determine the membership and constitution of the committee; and (b) must endeavour to have a membership that represents the interests of both customers and licensees; and (c) may determine the procedures of the committee; and (d) may discharge, alter or reconstitute the committee. (3) The Authority may determine that a member of the committee is to receive remuneration or an allowance, and if the Authority so determines it is to fix the remuneration or allowance on the recommendation of the Public Sector Commissioner. (4) Subject to this section, the committee may determine its own procedure. (5) The Authority must provide the committee with such support services as it may reasonably require. 29. Licensee must comply with duties under Act It is a condition of every licence that the licensee must — (a) comply with the duties imposed on the licensee, in relation to that licence, under this Act; and (b) carry out its operations under, or for the purposes of, the licence in accordance with this Act. 30. Prescribed conditions of licence The regulations may prescribe conditions to which a licence is subject. Division 4 — Failure to comply with licence — enforcement 31. Failure to comply with licence (1) If the Authority is satisfied that a licensee has failed to comply with a condition of a licence, the Authority may give a notice (a rectification notice) to the licensee requiring the licensee to rectify the failure within a specified period. (2) The rectification notice must set out — (a) the condition that the Authority is satisfied the licensee has failed to comply with; and (b) what the licensee must do to rectify the failure; and (c) the time within which the licensee must comply with the notice. (3) The rectification notice may be amended or revoked. (4) If the Authority is satisfied that the licensee has failed to comply with the rectification notice the Authority may do one or more of the following — (a) order the licensee to pay a monetary penalty determined by the Authority of up to — (i) for an individual — $30 000; and (ii) for a body corporate — $150 000; (b) remedy the failure to comply that gave rise to the giving of the rectification notice; (c) subject to section 17(2) — amend the licence under section 17. (5) Persons authorised by the Authority for the purposes of this subsection may enter any place, in accordance with Part 8, and do all things necessary for the purposes of subsection (4)(b). (6) The Authority may recover from the licensee a penalty imposed under subsection (4)(a) in a court of competent jurisdiction as a debt due by the licensee to the State. (7) A monetary penalty received by the Authority must be credited to the Consolidated Account. (8) The Authority may recover its reasonable costs and expenses of any action taken under subsection (4)(b) from the licensee, and may seek an order for the recovery of those costs and expenses in a court of competent jurisdiction. (9) Section 17(3) does not have effect in relation to an amendment of a licence for the purposes of subsection (4)(c). 32. Right of licensee to make submissions The Authority is not to take any action under section 31(4) unless it has notified the licensee of the proposed action and given the licensee a reasonable opportunity of making submissions on the matter. 33. Exception — dangerous situations (1) If the Authority is satisfied that — (a) a licensee has failed to comply with a condition of a licence; and (b) a dangerous situation exists; and (c) urgent action is needed in order to assess, reduce, eliminate or avert a risk to persons, property or the environment, the Authority may have the failure to comply rectified, under section 31(4)(b), without giving notice to the licensee under section 31(1) or complying with section 32. (2) The Authority must consult with the department principally assisting in the administration of the Health (Miscellaneous Provisions) Act 1911 about the exercise of the power in subsection (1) as soon as is practicable (whether before or after the exercise of that power), unless satisfied that the dangerous situation is not or was not a health risk. [Section 33 amended: No. 19 of 2016 s. 101.] Division 5 — Ending of licence and cessation of water services 34. Cancellation of licence for serious default (1) The Governor may cancel a licence. (2) Before the Governor does so, the Minister must be satisfied that — (a) the licensee is in serious default (as described in subsection (3)); or (b) the licensee — (i) is an externally‑administered body corporate within the meaning of the Corporations Act 2001 (Commonwealth) section 9; or (ii) is otherwise in the process of being wound‑up; or (iii) is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws; or (c) the licensee has, within a period of 12 months, been convicted of more than 3 offences for which the statutory penalty is a fine of $30 000 or more or imprisonment for 12 months or more; or (d) the licensee has ceased to exist. (3) For the purposes of subsection (2)(a), a licensee is in serious default if the Minister — (a) is satisfied that the licensee has failed to comply with a condition of the licence; and (b) is satisfied that the failure is material in terms of the operation of the licence; and (c) has given to the licensee written notice setting out — (i) that the Minister is satisfied as to the matters in paragraphs (a) and (b); and (ii) the time within which the licensee must remedy the failure or show cause why the licence should not be cancelled under this section; and (d) is satisfied that the licensee has neither remedied the failure nor shown cause why the licence should not be cancelled under this section, within the time specified for that in the notice. (4) If a licence is cancelled, the Minister must publish notice of the cancellation in the Gazette. (5) The cancellation of a licence on the basis of the Minister being satisfied under subsection (2)(a), (b) or (c) does not take effect until — (a) the licensee has been notified of it; or (b) if it is not practicable to notify the licensee — 21 days after the day on which the decision to cancel the licence was made. 35. Provision of a water service ceasing — regulations may deal with consequences (1) In this section and section 36 — former licensee, in relation to an area, means a licensee who ceases to provide a water service of a particular class in the area. (2) The regulations may deal with the consequences of the provision of a water service ceasing, or being about to cease, in an area, including by dealing with the following to the extent necessary for water services to continue to be provided in the area or areas affected — (a) the transfer of customers to a licensee; (b) the transfer of assets, rights and liabilities of the former licensee to a person; (c) the conferral of powers and duties on a person. (3) Regulations made for the purposes of this section may deal with the same sorts of matters as those that may be dealt with by regulations made for the purposes of section 38. (4) Regulations made for the purposes of subsection (2) have effect despite any conditions of a licence under section 12(1)(n), including such conditions as continued in effect under section 12(5). 36. Provision of a water service ceasing — duty to leave system in safe condition (1) If a licensee ceases to provide a water service in an area, the former licensee — (a) must ensure that any water service works provided or operated by the former licensee for the purposes of the licence in the area are left in a safe condition; and (b) must not remove any part of the works except with the approval of the Minister. Penalty: a fine of $30 000. (2) If the Minister is satisfied that a former licensee has failed to comply with subsection (1)(a), the Minister may have the failure rectified to the Minister's satisfaction. (3) Persons authorised by the Minister for the purposes of this subsection may enter any place, in accordance with Part 8, and do all things necessary for the purposes of subsection (2). (4) The Minister may recover the Minister's reasonable costs and expenses of having a failure rectified from the former licensee, and may seek an order for the recovery of those costs and expenses in a court of competent jurisdiction. Division 6 — Water service works and other assets 37. Licensee operating with works holding body (1) If water service works used by a licensee in the provision of a water service are held for the licensee by another person (the works holding body) under an agreement with the licensee the provisions of this Part apply to and in relation to the licensee as if the works were held by the licensee. (2) If the agreement under which the works are held complies with section 23(1)(b), the provisions of Parts 6 and 7, to the extent to which they do not already apply, apply to and in relation to — (a) the licensee and the works as if the works were held by the licensee rather than the works holding body; and (b) the works holding body and the works as if it were a licensee who held those works. (3) In this section, a reference to holding works includes a reference to holding the rights in relation to the works referred to in section 163(1)(b). 38. Regulations may deal with transfer of assets on land not held by asset holder (1) In this section — asset holder means — (a) a licensee; or (b) a works holding body (within the meaning given in section 37(1)); assets means any water service works, or any other thing used or intended to be used in the provision of water services, that — (a) are held by an asset holder, or in respect of which the asset holder has rights (for example, rights under section 163(1)(b)); and (b) are on land that is not the property of the asset holder. (2) The regulations may deal with the transfer of assets of an asset holder to another person (the transferee), including by — (a) dealing with the transfer of any rights or liabilities in or in relation to land associated with the assets; and (b) providing that a person is not entitled to receive from the transferee or another person any amount by way of compensation, reimbursement or otherwise for any loss, detriment or cost that the person suffers or incurs because of — (i) the transfer of the assets or of rights in or in relation to land associated with the assets; or (ii) the operation of this Act as a consequence of that transfer; and (c) dealing with the modification of specified agreements and instruments (other than enactments) relating to the assets; and (d) dealing with proceedings commenced and remedies available in relation to the assets; and (e) providing for and in relation to the exemption from any State tax of anything done under the regulations. (3) The regulations may provide that anything done under regulations made for the purposes of this section does not give rise to a breach of an existing right or obligation (whether contractual or not) or to any remedy that did not already exist. (4) Regulations for the purposes of this section, other than regulations of general application, may not be made unless the asset holder and the transferee agree to the regulations being made. Division 7 — Inspectors 39. Terms used In this Division — designating authority means — (a) in relation to a person acting in his or her capacity as an inspector designated under section 210(1) — the Authority; and (b) in relation to a person acting in his or her capacity as an inspector designated under section 210(2) — the CEO; inspection purposes means the purposes of — (a) investigating whether this Part is being or has been complied with; and (b) investigating whether the obligations of a licensee under this Act are being or have been complied with; and (c) obtaining evidence as to those matters; inspector means a person designated as an inspector under section 210(1) or (2). 40. Entry for inspection purposes An inspector may, for inspection purposes, enter a place, in accordance with Part 8 — (a) to which he or she reasonably suspects a water service is provided; or (b) at which he or she reasonably suspects water service works used in the provision of a water service are located. 41. General powers for inspection purposes (1) Upon entry to a place for inspection purposes, an inspector may do one or more of the following — (a) require a person with control or custody of the place to give reasonable access to it and other reasonable assistance; (b) inspect or examine the place; (c) direct a person to produce any document that is or may be relevant to the inspection; (d) inspect any document produced, make copies of it or take extracts from it, and remove it for as long as is reasonably necessary to make copies or extracts; (e) direct a person to answer questions; (f) inspect water service works of a licensee at the place, including by — (i) carrying out or supervising reasonable tests on the works, including making excavations; and (ii) taking photographs of or making other recordings of the works and surrounds; and (iii) taking or removing for analysis or examination samples of any thing relating to the works; (g) seize a thing that is relevant to an offence under this Part if that is necessary for one of the following purposes — (i) to prevent it from being concealed, disturbed or lost; (ii) to preserve its evidentiary value; (iii) to do a forensic examination on it; (iv) to prevent it from being used in the commission of another offence. (2) An inspector is, in that capacity, to be taken to be a public officer for the purposes of the Criminal Investigation Act 2006 Parts 6 and 13, as if — (a) the inspector were appointed to an office prescribed under section 9(1) of that Act; and (b) Parts 6 and 13 of that Act were prescribed in respect of that office. (3) For the purposes of subsection (2), the Criminal Investigation Act 2006 Part 13 applies as if the power to seize a thing under subsection (1)(g) were a power to seize the thing under the Criminal Investigation Act 2006. 42. Power to prohibit use etc. (1) If an inspector is of the opinion that anything that the inspector is authorised to inspect does not conform with the requirements of any term or condition of a licence or an exemption, the inspector must as soon as practicable report his or her opinion in writing to the designating authority. (2) Upon receipt of a report under subsection (1) about a thing, the designating authority may, if satisfied that the lack of conformity is materially significant — (a) by order in writing given to the licensee or exempt person — prohibit the use of the thing absolutely or except in accordance with specified conditions or restrictions; and (b) have the water service to or from the thing, or to or from the premises on which the thing is situated, disconnected until the designating authority is satisfied that the thing conforms with the requirements referred to in subsection (1). (3) The order referred to in subsection (2)(a) has effect as a condition on the licence or exemption. (4) Persons authorised by a designating authority for the purposes of this subsection may enter any place, in accordance with Part 8, and do all things necessary for the purposes of subsection (2)(b). (5) A designating authority may recover its reasonable costs and expenses of having